text:
    Olive Moore, Appellee, v. George Wingerter, Appellant.
    Gen. No. 6,089.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. Deselm, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by Olive Moore, plaintiff, against George Wingerter, defendant, under section 9 of the Dram-shop Act (J. & A. ¶ 4609) to recover damages for injury to her means of support and property by the sale and gift of intoxicating liquor to her husband, George Moore, which in the first count of the declaration was alleged to have caused his intoxication and in the second and third counts to have caused his habitual intoxication, which intoxication it was alleged caused great injury to her means of support and to her personal property. The court instructed the jury not to allow anything for injury to her person and that element is not in the case. There was a verdict and a judgment for plaintiff for five hundred dollars and defendant appeals.
    The suit was begun June 4, 1918, and the inquiry was limited to the five years next preceding that date.
    Plaintiff and defendant introduced evidence showing that plaintiff’s husband was an habitual drunkard during all of said five years. Plaintiff proved without contradiction that a part of his intoxication was produced by wine which he bought either of defendant or of some of his children at defendant’s home, and which said husband paid for. Defendant contended that only five such sales were proved in the five years. It was proved that during the first nine months of said five years he was drunk at least twelve times, or about once every three weeks, upon defendant’s wine, and that these drunken spells lasted from three days to a week each, during all of which time he was entirely incapacitated for work. There was proof that at later times he was frequently intoxicated on wine of appellant. On cross-examination of the witnesses by whom this'was proved, their statement that the husband told them he got the wine from appellant was excluded, but two of these witnesses also testified that they saw the wine which he had and upon which he became intoxicated from time to time, and that they knew defendant’s wine from other wine and that this was defendant’s wine. There was no contradiction of any of this evidence.
    There was proof of the extreme poverty of plaintiff and her husband and of his failure to supply her most ordinary wants, and that his habitual drunkenness was the cause thereof. The evidence showed that when any money was earned on the land they worked, it was because plaintiff and her minor children worked in the fields. Married daughters furnished the clothing for herself and her minor children. Defendant was permitted to prove that others contributed to the habitual intoxication of George Moore; that he was seen lying drunk on the river bank in Momence with whisky bottles in his pocket; that he was seen drinking whisky in saloons; but the court did not permit proof of the names of the saloon keepers. There was evidence that plaintiff was present in a buggy or wagon perhaps three times when her husband bought this wine at defendant’s farm and did not protest then against it. It was also shown that she took steps to have appellant notified by a lawyer not to sell liquor to her husband, but she was unable to show that the notice had in fact been, given.
    Complaint was made of the ninth instruction, given for plaintiff, which after submitting to the jury the question whether Moore during said five years became an habitual drunkard and whether within said five years appellant sold and delivered him intoxicating liquor, and whether he drank the same and whether the drinking thereof contributed to his becoming an habitual drunkard, and whether by reason of such habitual drunkenness the plaintiff was injured in her means of support, then told the jury that if they further believed from the evidence that during said period other persons sold and delivered intoxicating liquors to Moore and that he drank the same and that the drinking thereof contributed to his becoming an habitual drunkard, yet under the law appellant would be liable for the acts of all other persons who contributed to such habitual intoxication by selling and delivering intoxicating liquors to Moore.
    The court refused four instructions requested by defendant. The first was to the effect that if Moore became intoxicated by intoxicating liquors obtained from others and by reason thereof plaintiff was injured in person, property or means of support, and if defendant sold intoxicating liquors to Moore and he thereby became intoxicated, then before defendant could recover, she must prove that the intoxication caused by defendant contributed to the injury to her person, property or means of support. The second refused instruction was on the basis that the wine sold by defendant was not intoxicating and that Moore mixed said wine with other liquors and thereby became intoxicated. The third refused instruction was intended to cause the jury to consider the proof that Moore became intoxicated by liquors sold him by others in mitigation of damages. The fourth refused instruction assumed that there was evidence that plaintiff purchased from defendant intoxicating liquors for her husband and that such fact might be considered in mitigation of damages.
    Abstract of the Decision.
    1. Intoxicating liquors, § 244

      —when evidence justifies instruction as to exemplary damages. Evidence in an action by a wife to recover under section 9 of the Dramshop Act (J. & A. 1(4609), examined and held to justify an instruction given for plaintiff submitting the question of exemplary damages to the jury.
    2. Intoxicating liquors, § 214

      —when evidence as to other sales properly excluded. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 114609),.it is proper to exclude evidence as to the names of other saloon keepers who had sold intoxicating liquors to plaintiff’s husband.
    3. Intoxicating liquors, § 216

      —when evidence of sales by others not a defense. In an action by a wife under section 9 of the Dram-shop Act (J. & A. ¶ 4609), to recover for sales to plaintiff’s husband, it is no defense that others had sold intoxicating liquors to the husband and caused or contributed to his intoxication.
    4. Intoxicating liquors, § 216

      —when evidence of habitual drunkenness not a defense. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), it is no defense that plaintiff’s husband, for the sales to whom of intoxicating liquors the action is brought, was an habitual drunkard before the five years covered by the suit.
    5. Intoxicating liquors, § 181

      —when presence of plaintiff at time of sale not a defense. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover for sales of intoxicants to her husband, it is not a defense that she was present at times when such sales were made to the husband and did not protest then against it, where evidence shows that she had theretofore protested without avail, ,was present unwillingly when they were made and had taken steps to notify defendant not to sell liquor to the husband.

      H. K. & H. H. Wheeler and W. H. Savary, for appellant.
    W. R. Hunter and Walter C. Schneider, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, f.i me topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number-.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

6. Intoxicating liquors, § 249 —when instruction as to sales by others proper. In an action by a wife under section 9 of the Dram-shop Act (J. & A. ¶ 14609), to recover damages for injury to her means of support and property by the sale and gift of intoxicating liquor to her husband, an instruction given at plaintiff’s request which after submitting to the jury the question whether the husband duringi the five years covered by the action became an habitual drunkard, and whether within such time defendant sold and delivered to him intoxicating liquor, and whether the husband drank the liquor, and whether the drinking, thereof contributed-to his becoming an habitual drunkard, and whether by. reason of such habitual drunkenness the plaintiff was injured in her means of support, then told the jury that if they further believed from the evidence that during the period other persons- sold and delivered intoxicants to the husband and that he drank them and that the drinking thereof contributed to his becoming an habitual drunkard, yet under the law defendant would be liable for the acts of all other persons who contributed to such habitual intoxication by selling and delivering intoxicating liquors to the husband, is proper.

7. Intoxicating liquors, § 206 —when instruction as to burden of proof properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injury to her means of support and property by the sale of intoxicating liquor to her husband, an instruction to the effect that if the husband became intoxicated by liquor obtained from others and by reason thereof plaintiff was injured in person, property or. means of support, and if defendant sold intoxicating liquors to the husband and he thereby became intoxicated, then before plaintiff could recover she must prove that the intoxication caused by defendant contributed to the injury to her person, property or means of support, is properly refused as placing upon her the burden of proving an injury from the use of defendant’s liquor separate from that produced from the .liquor sold the husband by others.

8. Intoxicating liquors, § 249 —when instruction not based on evidence properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injuries to her means of support and property by the sale of intoxicating liquor to her husband, an instruction on the basis that the liquor sold by defendant was not intoxicating and that defendant mixed it with other liquors and thereby became intoxicated is properly refused where there was no proof on which to base such an instruction.

9. Intoxicating Liquors, § 246 —when, instruction as to mitigation of damages properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injury to her means of support and property by the sale of intoxicating liquors to her husband, an instruction intended to cause the jury to consider the proof that the husband became intoxicated by liquors sold him by others in mitigation of damages is properly refused.

10. Intoxicating liquors, § 246 —when instruction as to mitigation of damages properly refused. In an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), to recover damages for injury to her means of support and property by the sale of intoxicating liquor to her husband, an instruction which assumes that there was evidence that plaintiff purchased from defendant intoxicating liquors for her husband and that such fact might be considered in mitigation of damages is properly refused where there was no evidence upon which to base it.

11. Intoxicating liquors, § 249 —when ruling of court on instructions not ground for reversal. Rulings on instructions in an action by a wife under section 9 of the Dramshop Act (J. & A. ¶ 4609), examined and held not ground for reversal.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    James Brack, Appellee, v. B. F. Berry Coal Company, Appellant.
    Gen. No. 6,091.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Putnam county; the Hon. Theodore N. Green; Judge, presiding.
    Heard in this court at the April term; 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action, by James Brack, plaintiff, against B. F. Berry Coal Company, defendant, to recover for injuries to plaintiff by the fall of a rock in the roof of a mine of defendant while plaintiff was at work underneath said rock, as a servant of defendant. This is an appeal from the second trial of this case. On the first trial, plaintiff had verdict and judgment for $15,-000 which was reversed in Brack v. B. F. Berry Goal Co., 187 Ill. App. 609, because an instruction for plaintiff was not sufficiently modified, and because an instruction requested by defendant was improperly refused, and because of a lack of certain necessary evidence. On the present trial plaintiff had verdict and judgment for $14,000, from which defendant appeals.
    The substance of the charge in the declaration was that the roof of the room in which plaintiff was mining coal was in an unsafe and dangerous condition; that plaintiff desired to use certain props, caps and timber to secure said roof; that defendant wilfully failed to provide a supply of such props, etc., though proper demand as provided by law had been made therefor; and that because of such noncompliance with the provisions of the law, the rock fell upon and injured plaintiff.
    For defendant it was contended that plaintiff had plenty of suitable props at the time he was injured and 'failed to use them, and that as defendant had furnished, and there were in and near his room, plenty of props for his use, the charge was not sustained; and also that the damages are excessive/ Complaint was also made that the court erroneously refused to admit in evidence rule 10 offered by defendant and gave an erroneous instruction requested by plaintiff.
    There was in the record evidence that the only props in that vicinity accessible to plaintiff before his injury were props that had been broken or were crooked and unfit to be used, and that defendant had failed to supply the needed props as demanded. Defendant contended that as plaintiff supposed the stone above him in the roof where he was at work would not fall, and that it was safe for him to work under it, therefore, if suitable props had been supplied, he would not have used them, and therefore his injury was not due to the failure to supply props. The proof showed that the rock'above had slightly slipped and plaintiff knew it before he went to work under it that morning, and that the distance for which it was unsupported was such that plaintiff and his buddy that morning wished to put props underneath it to prevent any danger of its falling, and that they did not put props there before working because they had none.
    Abstract of the Decision.
    1. Mines and minerals, § 76

      —when evidence sufficient to show failure to supply props. Evidence in an action by .a miner to recover for injuries by the fall of rock in the roof of a mine of defendant while plaintiff was working in the mine in the employ of defendant, examined and held to show that there was a clear preponderance of evidence that the only props in the vicinity accessible to plaintiff were broken or crooked and unfit for use, and that defendant had failed to supply the needed props as demanded in accordance with the requirements of Hurd’s Rev. St., ch. 93, art. 20.
    2. Mines and minerals, § 176

      —when evidence sufficient to support verdict for plaintiff. Evidence in an action to recover for injuries to an employee by the fall of rock in a mine in which he was working, examined and held sufficient to support a verdict for plaintiff.
    3. Mines and minerals, § 168

      —when evidence of rule properly excluded. In an action by a miner to recover for injuries by the fail of rock in the mine in which he was employed, evidence of a rule so framed as to permit the employer to wilfully violate the statutory regulations as to mines and yet give him a defense against any miner injured by such wilful violation is properly excluded, such rule being void as against public policy.

      The court permitted proof that rules had been posted by defendant and permitted the rules to be produced in the court room, but refused to permit rule 10 to be read in evidence to the jury.
    McDougall, Chapman & Bayne, for appellant; Mastin & Sherlock and George W. Hunt, of counsel.
    Duncan & O’Conor, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

4. Appeal and error, § 1561 —when omission in instruction cured by other instructions. The fact that an element in a case is stated in brief form in an instruction is not ground for reversal where the element was fully stated in other instructions given at the request of the same party.

5. Mines and minerals, § 195 —when damages not excessive. In an action by a miner to recover for injuries received by the fall of rock in a mine where the evidence shows that he was seriously injured; that his lower limbs and the lower part of his body were completely paralyzed; that he had no control over his bowels nor his bladder; that he suffered from great pain; that he was under constant treatment for a very long time; that he is a helpless cripple and permanently incapacitated for work and that at the time of the injury he was twenty years old and a strong healthy man, it cannot be said that $14,000 is an excessive award even though the maximum amount recoverable for his death would have been-$10,000.


text:
    Henry Jennings, Appellant, v. County of Peoria, Appellee.
    Gen. No. 6,096.
    1. Counties, § 67

      —when action not maintainable for negligence of servants. A private action will not lie against a county for injuries occasioned by the negligence of its servants or officers in the performance or nonperformance of their duties, or in the performance of their duties in a negligent manner in the absence of express statutory authority.
    2. Municipal corporations, § 948

      —when not liable for negligence of servants.' The same principle applies as to the nonliability of a municipal corporation for the negligence of its servants or officers in the performance or nonperformance of their duties, or in the performance of their duties in a negligent manner, as applies in the case of counties when the municipality is performing those acts which it is empowered to do in its public capacity and in the discharge of duties imposed for the general welfare.
    3. Pleading, § 184*—what the proper office of demurrer. It is not the office of demurrer to allege facts, but it simply concerns such facts as are stated in the pleading demurred to.

      4. Pleading, § 14

      —when demurrable as stating conclusion. In an action against a county to recover for injuries caused by an automobile alleged to have belonged to the county and to have been negligently operated by one whom it had placed in custody and control of the machine, a declaration which nowhere states for what purpose defendant purchased and used the automobile, but simply alleges that it was not being operated by the defendant in the performance of any duty imposed upon it by law, is insufficient as stating a conclusion and not a fact.
    5. Pleading, § 146

      —when allegations of fact in demurrer disregarded: Allegations of fact contained in a demurrer will be disregarded.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Walter H. Kirk, for appellant.
    C. E. McNemar and Clarence D. Murphy, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

After dismissing the other defendants, Henry Jennings filed a second amended declaration, hereinafter called the declaration, against the County of Peoria. The county filed a general and special demurrer thereto, which was sustained. Jennings elected to abide by his said declaration and there was a judgment in bar against plaintiff, and he appeals.

The declaration alleged that the county possessed an automobile, which it placed in the custody and control of one Minor, and authorized him to procure for it at the county’s expense all necessary gasoline and other supplies and accessories and to have all necessary repairs made from time to time and to engage the services of a competent person to operate said automobile for the county; that Minor received from the county (acting through its board of supervisors) the custody and operation of said automoible for the county and agreed with the county to purchase at the expense of the county all necessary gasoline and other accessories and to have all necessary repairs made thereon and to engage competent persons to operate it; that Minor engaged one Sterns to operate said automobile for the county; that on a date named the automobile had been repaired at a factory and was being driven by Sterns, under the direction of Minor, from the factory to the courthouse; that appellee was lawfully crossing a street in the City of Peoria with due care for his own safety, when he was struck and injured by said automobile. The first count charged the reckless and negligent running of the automobile; the second, that it was run at a high and dangerous rate of speed; the third, failure to give appellee warning of its approach; and the fourth, that it was run at a speed which violated the statute. Each count alleged that said automobile was not then being run or operated by the county in the performance of any duty imposed upon it by law.

It was well established at an early day that in this State a private action will not lie against a county for injuries occasioned by the negligence of its servants or officers in the performance or nonperformance of their duty, or in the performance of their duty in a negligent manner, unless expressly so provided by statute. This rule was illustrated by a review of many authorities in Hollenbeck v. Winnebago County, 95 Ill. 148, where the principle in question is very fully stated. The same principle had previously been stated in many cases, including Hedges v. Madison County, 6 Ill. (1 Gilm.) 567; Town of Waltham v. Kemper, 55 Ill. 346; Bussell v. Town of Steuben, 57 Ill. 35; White v. Bond County, 58 Ill. 297; and Symonds v. Board Sup’rs, Clay County, 71 Ill. 355.

The Constitution of 1870 made a county a municipal corporation, and some of the cases above cited were decided, since that Constitution took effect. The same principle applies to a municipal corporation when it is performing those acts which it is empowered to do in its public capacity, and in the discharge of duties imposed for the general welfare, such as the exercise of the police power, and the like. Culver v. City of Streator, 130 Ill. 238; Elmore v. Drainage Com’rs, 135 Ill. 269; City of Chicago v. Williams, 182 Ill. 135; City of Chicago v. Selz, Schwab & Co., 202 Ill. 545; Tollefson v. City of Ottawa, 228 Ill. 134; Evans v. City of Kankakee, 231 Ill. 223; and Minear v. State Board of Agriculture, 259 Ill. 549. This subject is discussed in the article on “Counties” in the 31st paragraph thereof, in 7 E. C. L. 957. Appellant seeks to apply the principles laid down in Gathman v. City of Chicago, 236 Ill. 9; Lehigh Valley Transportation Co. v. City of Chicago, 237 Ill. 581; and Johnston v. City of Chicago, 258 Ill. 494, 4 N. C. C. A. 40. Those cases hold that municipahties incur no liability for the negligence of their officers or employees, where they are exercising governmental functions or judicial, discretionary or legislative authority, conferred by their charters, or discharging a duty imposed solely for the benefit of the public, but are liable where they are acting ministerially; 'and the three cases last cited are not out of harmony with the general rule above stated.

This demurrer referred to Minor as if he were the sheriff of Peoria county. A demurrer concerns such facts as are stated in the pleading demurred to. It is not the office of a demurrer to allege facts. Wood v. Papendick, 268 Ill. 383. The intimation that Minor was sheriff must therefore be disregarded though it may furnish an apt illustration. The declaration nowhere states for what purpose the county purchased and used this automobile. The allegation above stated, that it was not being operated by the defendant in the performance of any duty imposed upon it by law, is the statement of a conclusion and not of a fact. This is not proper pleading. Appellant should have stated the purpose for which the automobile was obtained and used, and the court could then have determined whether it was for a purpose which would make the county liable for the negligence of the man operating it or for a purpose which would not render the county liable for the negligence of the officer or employee. Suppose, in fact, this machine was purchased for the purpose of aiding the sheriff in performing his police duties, to enable bim to speedily overtake fugitives from justice, or to reach speedily a mob or disorderly assembly in some distant part of the county. We presume it would be conceded that in such case the county would not be liable for the act of the driver of the automobile, any more than the city was for the act of the policeman in Culver v. City of Streator, supra. The declaration states a case against Sterns. Perhaps it states a case against Minor. It fails to state facts bringing it within that class of cases where a county is liable for the negligence of its officers and servants. The judgment is therefore affirmed.

Affirmed.

Mr. Justice Niehaus took no part.


author: Mr. Presiding- Justice Dibell

text:
    The People of the State of Illinois ex rel. Nellie McGraham, Appellee, v. J. E. Armstrong et al., Appellants.
    Gen. No. 6,102.
    1. Pleading, § 190

      —when matters of form not questioned by general demurrer. On a petition for mandamus against the trustees of the policemen’s fund of a city filed by the widow of a deceased policeman, to compel the payment by them to her of an amount claimed to be due from such fund, objections that the petition is defective in not alleging facts to show that an ordinance creating the office of policeman in such city was duly adopted by a vote of two-thirds of all the duly elected aldermen; that the allegation that the husband was duly appointed policeman is not sufficient; that it did not show that he was duly nominated and confirmed every two years after his original nomination and confirmation; that it did not allege the deduction from his salary of the amount of one per cent, per month nor that such amount was paid by him into the fund, relate to matters of form and not of substance, and cannot be reached by a general demurrer, but must be questioned by special demurrer.
    2. Limitation of actions, § 12

      —what limitation applicable to petition for mandamus to compel payment. The ordinary statute of limitations is applicable to a petition by the widow of a policeman for mandamus to compel the payment of a pension claimed to be due from the fund created by the Police Pension Fund Act of 1909 (J. & A. ¶ 1875), and where the evidence shows that the policeman died on January 7, 1912, demand was made March 12, 1914, and the proceeding was instituted April 2, 1914, the proceeding is not barred.
    3. Equity, § 85

      —when claim not barred by laches. Where the act creating a police pension fund (J. & A. ¶ 1875), and the ordinance of a city enacted pursuant thereto contain a provision for pro rata payments to the beneficiaries when there are not sufficient funds on hand to pay the allowances, a delay of two years and three months in bringing suit to recover such pension cannot be held laches.
    4. Municipal corporations, § 143

      —when defense of insufficiency of fund to be interposed in answer. On a petition for mandamus to compel the payment to a policeman’s widow of a pension out of the fund created by the Police Pension Act of 1909 (J. & A. ¶ 1875), which act and the ordinance adopted pursuant thereto contain a provision for pro rata payments where the fund is insufficient to meet all allowances, the defense that such deficiency exists must be set up in the answer.
    5. Municipal corporations, § 143

      —when right to benefit of police pension fund accrues. To entitle a policeman’s widow to a pension under the Police Pension Fund Act of 1909 (J. & A. ¶ 1875). and an ordinance adopted pursuant thereto, it is not necessary that the husband’s death shall not have occurred until ten years after the ordinance has been in force, but her right to such pension accrues even though he dies in less than two years after the ordinance goes into effect.
    6. Municipal corporations, § 143

      —when ten years' continuous service not essential to entitle to benefit of police pension fund. The Police Pension Fund Act of 1909 (J. & A. ¶ 1875), does not require that the ten years’ service provided for therein shall have been ten continuous years’ service.
    7. Municipal corporations, § 143

      —when dependency not prerequisite to right of widow to benefits of police pension fund. The pension provided for by the Police Pension Fund Act of 1909 (J. & A. ¶ 1875), and an ordinance adopted pursuant thereto, is payable to the widow in any event, whether or not she was dependent upon the husband for support.
    8. Municipal corporations, § 143

      —when subsequently appointed policemen entitled to benefits of pension fund. The Police Pension Fund Act of 1909 (J. & A. ¶ 1875), and an ordinance adopted pursuant thereto, do not restrict their application to policemen who were such at the time the ordinance went into effect, but include also those subsequently appointed.
    9. Municipal corporations, § 143

      —when policeman acting as merchant policeman comes within the fund. The fact that during a portion of his service a policeman acted as merchant policeman, receiving one-half of his pay from merchants of the city and the other half from the city does not prevent his widow from being entitled to the benefits of the fund provided for by the Pension Fund Act of 1909 (J. & A. ¶ 1875), and an ordinance adopted pursuant thereto.
    10. Appeal and error, § 1712

      —when points not argued in briefs waived. A point not argued in appellant’s briefs is waived by him.
    Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    E. P. Lathrop, Robert Lathrop and Roy H. Brown, for appellants.
    E. D. Reynolds, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, samp topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding- Justice Dibell

delivered the opinion of the court.

Mrs. Nellie McGrraham, the widow of a policeman, filed in the Circuit Court of Winnebago county a petition for a writ of mandamus against the trustees of the policemen’s fund of the City of Rockford to command them to pay her $1,040 from the pension fund. The trustees filed a general and special demurrer to said petition. Afterwards, by leave of court, they withdrew said demurrer, and filed another general and special demurrer in which more grounds of special demurrer were alleged. The court overruled said demurrer and the respondents answered the petition. Thereafter, they withdrew that answer and elected to abide by their demurrer, and petitioner had judgment awarding a peremptory mandamus against said trustees, directing them to pay the petitioner, out of the funds in the hands of the treasurer of said trustees, $1,040 in accordance with an ordinance of said city. The respondents appealed. Appellee contends that appellants, by answering after their demurrer had been overruled, abandoned their demurrer, and that the record was then the same as if no demurrer had been filed, and that as they did not refile a demurrer after withdrawing their answer, they had nothing before the court. Without passing upon the merits of this contention, we have decided to treat the case as if the ruling upon the demurrer was properly before this court.

This proceeding is under the Act of 1909 (J. & A. ¶ 1875) for the establishment of a police pension fund in cities, the title of which was amended in 1913. The last sentence of section 6 of said Act (J. & A. ¶ 1880) is as follows: “Whenever any member of a police force shall die after ten years’ service therein and while still in the service of such city, village or town, leaving a widow or child or children under the age of sixteen years or dependent parent upon such policeman for their maintenance and support, then upon satisfactory proof of such facts made to it, said board shall order and direct that a pension equal to one-half of the salary of such policeman: Provided, however, that the sum shall not be more than $600.00 per year, shall be paid to such widow, or, if there be no widow, then to such child or children until they shall be sixteen years of age, or if there be' no widow, or child under the age of sixteen years, then to such parent or parents as is or are dependent upon such policeman for their support, said pension to cease upon the marriage, as is heretofore provided.” The petition filed by Mrs. McGraham alleged that on May 6, 1895, J. T. McGraham was duly appointed assistant marshal and policeman in and for the City of Rockford, and thereafter, on May 15, 1895, the mayor and city clerk of said city duly commissioned said McGraham as such assistant marshal and policeman for such city; that McGraham continued in such employment as a policeman in the City of Rockford, and performed all his duties as such police officer from said date until January 7, 1912, excepting a period from January 7, 1907, to November 1,1910, during which last mentioned period McGraham was actively employed as a merchant policeman in and for the City of Rockford, and received for such services as merchant policeman, $40 per month from the City of Rockford, payable each and every month, and a like sum from individuals and persons interested in the maintenance and support of such service; that the total time of service of said McGraham as such policeman and merchant policeman in and for the City of Rockford was sixteen years and eighteen months; that McGraham, while a member of such regular police force in the City of Rockford, died January 7,1912; that at the time of his death he had served the City of Rockford as such regular police officer for more than ten years, and was at the time of his death in the active service and employment of said city, and was receiving for his services as such regular policeman $80 per month, payable each month; that petitioner and said McGraham were lawfully married on November 15, 1891, and lived together as husband and wife in said city until he died, and at his death petitioner was his lawful wife, and there survived him petitioner as his widow, and two children, each then under the age of sixteen years. The petition further set out in full an ordinance alleged to have been passed by the City Council of the City of Rockford on April 4, 1910, and which became -effective on April 7, 1910. Said ordinance is substantially word for word the same as the legislative act above referred to. The petition further alleged that at the date of the death of said McG-raham and at the date of the filing of said petition, said ordinance was in full force and effect in the City of Rockford; that, in accordance with the laws of the State of Illinois and the ordinances of the City of Rockford, the petitioner was on the date of the death of said McG-raham, and since said date, and at the time of filing said petition is entitled to receive from such pension fund one-half the salary paid to such policeman, not to exceed $600 per year; that the petitioner is the widow of said policeman and has not remarried; that there is now in the hands of the treasurer of the said board of trustees of the police pension fund $4,000, accumulated and acquired from the various sources defined in said ordinance for the purposes set forth in said ordinance; that petitioner is entitled to receive the benefits under said ordinance during each and every month; and that by the terms thereof she is entitled to receive twelve instalments each year of $40 each, but the same has never been paid by said trustees nor any part thereof, and there is now due her from said fund $1,040; that she has made demand in writing upon said board of trustees for the payment of said money, a copy of which demand is attached to the petition and made a part thereof; that such demand for payment has been wholly refused by said board and said board unlawfully withholds such payment contrary to the statute and said ordinances.

Several objections to said petition which are strongly argued by appellants are not raised upon this record. It is argued by appellant that the petition is fatally defective in not alleging facts to show that an ordinance creating the office of policeman in the City of Rockford was duly adopted by a vote of two-thirds of all the duly elected aldermen; that the allegation that McGraham was duly appointed assistant marshal and policeman for the City of Rockford is not sufficient; that the petition should not only have shown that McGraham was duly nominated and duly confirmed to that office originally, but should also have shown that he was duly nominated and confirmed every two years thereafter; and that the petition is fatally defective in not alleging that one per cent, per month of McGraham’s salary was either deducted for said police pension fund or was paid by McGraham into that fund. Each of these objections relates to a matter of form and not to a matter of substance. The matter of substance is that McGraham served as a member of the police force by lawful authority for the time indicated. The details of the method by which he acquired and held that position are pure matters of form. Since the enactment of certain statutes in the reigns of Elizabeth and Anne, a general demurrer to a pleading will not reach matters of form, but only matters of substance; and matters of form must be questioned by a special demurrer particularly pointing out the omission or defect in the matter of form. 1 Chitty’s PL, 663, 664; Heard’s Civil Pleading, 106, 107. The original demurrer assigned two special causes, namely: that McGraham had not served ten consecutive years when he died and that the petition did not show a demand for payment before March 12,1914. The first of these objections will be considered in passing upon the second special demurrer. As to the second of said causes alleged in the first special demurrer, it is sufficient to say that McGraham died on January 7, 1912, and that the ordinary statute of limitations applies to this action of mandamus, and that a demand on March 12,1914, and the institution of this suit on April 2,1914, were each within the statute. Section 13 of the statute and section 13 of the ordinance each provides for cases where there are not sufficient moneys in the police pension fund to pay the allowances of such board to the beneficiaries, and that in such ease they shall be paid pro rata from said fund. With that provision in force, no harm could come to the fund by delay in instituting suit, and the delay here referred to cannot be treated as laches. The petition averred that the fund on hand amounted to $4,000. If, by reason of other beneficiaries having a lawful claim upon the, fund, the full amount due Mrs. McG-raham by the terms of the statute and the ordinance could not be paid without depriving other beneficiaries of some part of that which is also due to them, that defense, being particularly within the knowledge of the respondents, should be interposed by answer. The record filed here does not contain the answer which was filed and which was withdrawn.

The first special cause assigned under the second demurrer vas that the petition showed that McG-raham had not duly served as a duly commissioned policeman or member of the regularly constituted police force in the City of Bockford for the ten consecutive years last prior to his death; and the fourth was that the petition did not show that McGraham had served as a member of the police force for ten years after the ordinance took effect. The ordinance went into effect on April 7,1910, and the fund began to be accumulated immediately thereafter from nine different sources specified in the ordinance, one of the sources being the withholding each month of a certain portion of each policeman’s salary. Under the construction here contended for, there could be no payment of benefits out of said fund until the ordinance had been in force ten years, and the family, of any policeman who contributed by compulsion thereto and died before the expiration of the ten years would have no right to any benefit from said fund. Such a construction is not reasonable, and we are convinced from a reading of the entire statute and of the entire ordinance that no such result was intended. We also conclude the services need not be continuous (Hess v. Board of Trustees of City of Bloomington, 188 Ill. App. 8), though we hold that it is here alleged to have been continuous. The second special cause assigned under the second demurrer is that the petition does not show that Mrs. McGraham was dependent upon her husband for support. While there is a slight confusion in one or two places in the statute and'in the ordinance where the word “dependent” is used, yet it is clear to us from a reading of said act, and especially sections 3 and 6, that the pension is payable in any event to the widow, and if there be no widow, then to such child or children as shall be under the age of 16 years, or if there be none such, then to such parent or parents as is or are dependent upon such policeman for their support, and that the word “dependent” applies only to the parent or parents. The third special cause assigned under the second demurrer is that the petition does not show that McGraham was a member of the regularly constituted police force in the City of Rockford when the ordinance took effect. There is nothing in this statute or in this ordinance to indicate that the fund was so established as only to be for the benefit of those who were policemen when the ordinance was adopted. No such meaning can be attributed to the act or the ordinance. This police pension fund may remain in force for very many years, and all of those who were in service at the time it was adopted may be dead long before the fund ceases. A statute which would take from the pay of subsequent policemen a sum of money each month for this fund, but which would debar all those who shall contribute to it from sharing in the fund except those who were in office when the ordinance was adopted, would be invalid. Indeed, section 3 of the act and section 3 of the ordinance each expressly shows that the fund is to be for the benefit not only of those who were members of the force when the ordinance was adopted, but of those who thereafter become members of the force. Under that section, a policeman must have served twenty years, but the portion of section 6 above cited applies to policemen who have served ten years. Moreover, the petition avers that at the time of his death McGraham had served the City of Rockford as such regular police officer for more than ten years. There was a period from January 7, 1907, to November 1, 1910, during which time he was actively employed as a merchant policeman in and for the City of Rockford and was paid one-half of his wages by the City of Rockford, and there is nothing to show or imply that his services as a merchant policeman made him any other than a policeman in the City of Rockford. It is obvious from the allegations of the petition that the services which he then performed were as a regular police officer in the employ of the City of Rockford, and under the petition he had been a member of the police force for more than ten years. The fifth special cause assigned under the second demurrer is that the petition does not show that satisfactory proof was made to the trustees of McGraham’s death and that he left a widow and children dependent upon him for support, and that he was a member of the police force when he died and left a widow and children. This point is not argued in appellant’s briefs, and is therefore abandoned and waived, as held in Banfill v. Twyman, 172 Ill. 123; Harrow v. Grogan, 219 Ill. 288; Bower v. Livingston, 251 Ill. 330; Biewer v. Mueller, 254 Ill. 315, and in many other cases. These are all the grounds of special demurrer assigned, and in our judgment none of them is well taken. We consider the petition sufficient in substance, and the judgment is therefore affirmed.

Affirmed.


text:
    Gus Danzeiser, Appellee, v. Robert D. Clarke, Appellant.
    Gen. No. 6,105.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed with finding of facts.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by Gus Danzeiser, plaintiff, against Robert D. Clarke, defendant. Plaintiff had judgment by default for $200 before a justice of the peace. On appeal by defendant to the Circuit Court, plaintiff had verdict and judgment for $150, from which defendant appeals.
    The evidence showed that plaintiff obtained a patent on a railroad switch frog and thereafter made a written contract with defendant, signed by both parties, constituting defendant his attorney in fact to assign, sell and deliver said patent to an Illinois corporation. The rest of the contract is mainly as follows: “In consideration of the confidence reposed in me and in consideration of the advance in money which I hereby bind myself to make, and for that which I have already made, I agree with said Gus Danzeiser to at once furnish all the necessary capital to construct, deliver and install, in different parts of the United States, at least thirty (30) of said devices and to furnish the necessary expenses to said Gus Danzeiser to supervise and direct the installation of the same, and if a demonstration and test of the said thirty devices so made and installed show the practicability of such device then and in that event I will organize a corporation with sufficient capital to manufacture and sell and dispose of said devices in such quantities as the market therefor might demand.
    “In the organization of such corporation I bind myself that the stock thereof shall be fully paid up, and that said Gus Danzeiser shall receive forty-five (45%) per cent, of same, the remaining fifty-five (55%) per cent, thereof to belong to myself and the said John H. Carroll, or our several assigns.
    “I further bind myself as aforesaid to said Gus Danzeiser to have such corporation enter into a contract with him by the terms of which he shall receive all necessary expenses for himself in the supervising and directing the manufacture and installation of said devices, and as an additional compensation shall receive from said corporation annually, a sum equal to ten (10%) per cent, of the net profits of said corporation after organized.”
    It appeared that the said thirty devices were manufactured in Milwaukee and shipped to Peoria. Defendant paid plaintiff $20 for his expenses to go to Milwaukee and superintend their construction and see that they were properly made. The evidence also showed that by the time the freight had been paid and the devices delivered in Peoria, defendant had expended about $600 thereon. Thereafter plaintiff made trips to various cities, and incurred various expenses for railroad fare, hotel bills, cigars and other matters, and ran up a bill of $235.90, and deducting therefrom the $20 he had received from defendant for a trip to Milwaukee to see that the devices were properly manufactured, his remaining expenses amounted to $215.90. He claimed that under the written contract above set out, defendant was liable to refund him that expense.
    Plaintiff did not know how many days he spent in any of those places, what hotels he stopped at, what rates per day he paid nor any other item.
    Quinn & Quinn and Heyl & McGrath, for appellant; C. O. O’Hern and John Dougherty, of counsel
    Charles S. Stubbles, for appellee; E. J. Slough, of counsel.

      Abstract of the Decision.
    Contracts, § 387

      —when evidence insufficient to support judgment for plaintiff. The evidence in an action on a contract examined and held insufficient to show defendant liable.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.


text:
    Anna Weltz, Appellee, v. John R. Connell, Appellant.
    Gen. No. 6,110.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Carroll county; the Hon. James S. Baume, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Anna Weltz, plaintiff, against John R. Connell, defendant.
    The facts in this case are stated in Weltz v. Connell, 186 Ill. App. 336. That opinion, reversing and remanding the cause, was based upon the refusal of the court to give instruction No. 17, requested by appellant, which would have told the jury that, before the plaintiff could recover, she must prove by a preponderance of the evidence that misrepresentations relative to the land in question were made by the defendant, that such misrepresentations were false and known by the defendant to be false when made, that the plaintiff was deceived thereby, and that she had been injured because of them. This instruction was given upon the second trial, which also resulted in a verdict for the plaintiff, below, followed by a judgment, from which the defendant below has taken this appeal.

      Abstract of the Decision.
    1. Vendor and purchaser, § 54*—when evidence sufficient to sustain verdict. Evidence in an action for fraud and deceit in exchange of lands and for breach of warranty, examined and held to support a verdict for plaintiff.
    2. Instructions, § 18*—when misleading instruction properly refused. An instruction which states a correct proposition of law is properly refused where giving it would tend to mislead the jury.
    B. K. Welsh and Brearton & Walter, for appellant.
    F. J. Stransky, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.


text:
    James S. Barton, Appellee, v. Foster Coulson, Appellant.
    Gen. No. 6,115.
    1. Joint adventure, § 8

      —when action at law maintainable to recover proceeds of joint adventure. Where the evidence shows that plaintiff and defendant bought a lot of cattle together and shipped them to another point and sold them there and the transaction resulted in a loss, and that the amount thereof had been ascertained between the parties and one had agreed to pay the other one-half the loss, an action at law may be maintained by the latter against the former to recover the amount so promised.
    2. Joint adventure, § 8

      —when statement showing gross and net proceeds and charges admissible. Where, in an action to recover an amount claimed to be due from defendant to plaintiff on a joint adventure, plaintiff’s evidence showed that he obtained a written statement showing the gross proceeds of the sale under such adventure, the charges incurred therein and the net proceeds; that he had bought the commodity at the price agreed upon between him and defendant and that defendant was present and knew what the price was; that the net proceeds showed the loss of a certain amount, and that this statement and result was shown by him to defendant and the latter promised to pay his half thereof, such evidence renders competent the statement from the third person showing the gross and net proceeds and charges.

      3. Account stated, § 4

      —when rendition of statement equivalent to stated account. In an action to recover an amount claimed to be due on a joint adventure, the presentation by plaintiff to defendant of a statement showing the gross and net proceeds and the ascertainment between them of the amount, when accompanied by proof that defendant then and thereafter promised to pay the plaintiff one-half of the loss incurred, makes the presentation of the statement in legal effect an account stated, the correctness of the items of which need not be proved.
    4. Joint adventure, § 8

      —when evidence sufficient to support verdict. Evidence in an action to recover an amount claimed to be due from defendant to plaintiff on a joint adventure, examined and held sufficient to support a verdict and judgment for plaintiff.
    Appeal from the County Court of Stark county; the Hon. Frank Thomas, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    James H. Rennick, for appellant.
    John W. Fling, Jr., for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Barton sued Coulson before a justice. The case was tried by a jury in the County Court on appeal and plaintiff had a verdict for $100.52, and a judgment thereon, from which defendant appeals.

Appellee claimed that he and appellant bought a bunch of cattle together and shipped them to Chicago and sold them there, and that the transaction resulted in a loss of $201.04. He sued and recovered a verdict for one-half that loss. Appellant claims that no such transaction took place and that he had no interest in said shipment of cattle, that if there was such a transaction, it was a partnership and could only be adjusted in a court of equity; that the statement from the firm at the stock yards which sold the cattle was improperly admitted in evidence; that there is no proof there was any loss; and that the evidence does not sustain the verdict.

Bach of the parties has long been engaged in buying, shipping and selling cattle. This was the only transaction between them disclosed by the evidence. Upon the question whether an action at law can be maintained for the loss in this case, or resort must be had to equity, the following statement of the law is made in 2 Bates on Partnership, section 865: “Where the partnership consists of a venture in a single transaction or single purchase, which is closed up and finished, and there are no accounts with third persons to adjust or debts to be provided for by sale and distribution of effects, but the sole question is how much one partner owes the other, an action at law has been sustained between them, being purely a money demand on a single item.” In Hanks v. Baber, 53 Ill. 292, the court said: “When partners have settled their partnership accounts and a balance is ascertained, an action of assumpsit will lie for money due on an account stated. ” In Hurley v. Walton, 63 Ill. 260, which was. an action of assumpsit, the court said: “We are of opinion that the transaction out of which the present claim arose may be regarded as a single adventure between the parties, in which they were only jointly interested, and, therefore, wanting in all the elements to constitute a co-partnership.” A judgment for plaintiff was affirmed. Purvines v. Champion, 67 Ill. 459. In Gottschalk v. Smith, 156 Ill. 377, it was held: “An action for money had and received may be maintained for a share of the profits of a single joint enterprise, under an agreement that such profits should be equally divided, where the transaction is completed and the profits received by the defendant.” In Southworth v. People, 183 Ill. 621, the court said: “Where two parties engage in a single adventure in which they are jointly interested, the transaction does not constitute the parties partners so as to oust a court of law of jurisdiction.” A similar principle is referred to in Fish v. Lapsley, 128 Ill. App. 611; Aldrich v. Mathias, 167 Ill. App. 589; and Clark v. Sidway, 142 U. S. 682. Authorities in other States holding otherwise are found in a note in 5 L. R. A. (N. S.) 510. Here, the cattle had been sold, a loss had been sustained and the amount thereof had been ascertained between the parties, and appellant had agreed to pay one-half the loss, if the jury were warranted in believing the evidence introduced by appellee. Under such circumstances we hold that an action at law could be maintained.

According to the proofs introduced by appellee, he obtained a written statement showing the gross proceeds of the cattle and the charges at the stock yards and the net proceeds, and he had bought the cattle at a price agreed upon between himself and appellant, and appellant was present when the cattle were weighed and knew what that price was, and the net proceeds deducted from the cost showed a. loss of $201.04, and this statement and result was shown by appellee to appellant and the latter promised to pay his half thereof. This proof made the statement from the stock yards competent evidence.

Appellee did not produce any witness who testified that there was a loss on these cattle. We conclude that the presentation of this statement by appellee to appellant and the ascertainment between them of the amount and the proof that appellant then and several times afterwards promised to pay appellee one-half thereof makes this in legal effect an account stated, in which case the correctness of the items need not be proved. 1 Cyc. 485; 1 R. C. L. 213; Weigle v. Brautigam, 74 Ill. App. 285, and cases there cited.

It is argued that the verdict is not supported by the evidence. It is clear that appellant was familiar with the business of buying cattle and shipping them to Chicago for sale, and that he had talked with some one about buying these cattle, and that he was present when they were delivered and weighed and took some part in that transaction. There is evidence that he told two or three parties that he was in with appellee on this shipment, and there is a preponderance of evidence that he promised to pay appellee one-half of this loss after it was ascertained. The jury and the trial judge believed the witnesses for appellee. There was little against their statements except an unqualified denial by appellant. In view of the law as we have hereinbefore stated it, the instructions are not seriously imperfect.

The judgment is affirmed.

Affirmed.


text:
    Charles Elliott, Appellee, v. Irvin M. Kidder, Appellant.
    Gen. Ho. 6,118.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by Charles Elliott, plaintiff, against Irvin M. Kidder, defendant, upon four promissory notes, two of which were executed by defendant payable to plaintiff and on two of which plaintiff was surety for defendant and was compelled to pay the amount due by the face of the notes, being approximately $7,000. Defendant pleaded the general issue. Plaintiff reeoverded a verdict and judgment for $3,000, from which defendant appeals.
    Defendant claimed that he and plaintiff were partners in various real estate deals and other transactions, and that the two and H. W. Leydig were partners in other real estate deals and other transactions. Defendant claimed that the three met at a hotel at Dixon and had a settlement; that Leydig demanded back a note which he had given and defendant held for land in Missouri that was not worth the mortgage upon it, and that defendant surrendered that note to Leydig; that defendant then offered plaintiff certain land in Nebraska, land in Dakota, 8,000 shares of the stock of the Patterson Heat & Light Company at $1 per share, 6,500 shares of Montana Oil Stock, 2,800 shares of International Mining stock, and some shares of ice, coal and coke plant stock in St. Louis; that plaintiff consented to surrender the notes in suit for that consideration, but said he could not then deliver them because he had them in a bank in Iowa as collateral, but that he agreed to surrender them when his debt to the bank was paid. This alleged settlement, wherein these notes were to be surrendered, was sworn to by defendant and Leydig. Plaintiff denied making any such settlement or agreeing to surrender such notes. There was like evidence of a later interview confirmatory of the alleged settlement and like evidence contradicting it. There is no claim but that plaintiff’s notes were valid and it is not claimed that defendant was insolvent. None of the witnesses had ever seen this Nebraska land, and none of them knew whether it was worth anything or not. It had been traded in for an automobile, but there is no proof whether the machine was old or new, nor what it was worth, or that any of the witnesses had ever seen it. None of the witnesses had ever seen the Dakota land or knew anything about its value. Defendant held a deed for it in which the grantee’s name was left blank. The proposal was that he deliver that blank deed to plaintiff and let the latter either write in his own name or trade it off to some one else. Defendant was not to warrant the title or to assume any liability. None of the witnesses knew that the shares of capital stock had any value whatever.

      Abstract of the Decision.
    1. Bills and notes, § 451*—when evidence sufficient to support finding that no settlement made. Evidence in an action to recover on promissory notes, examined and held sufficient to sustain a finding that a settlement had not been made.
    2. Appeal and error, § 1543*—when omission in instruction not ground for reversal. An instruction which tells the jury that the testimony of one credible witness may be entitled to more weight than the testimony of many others, if such witnesses have knowingly testified untruthfully and are not corroborated, is not ground for reversal for the omission of the element that such untruthful testimony must relate to a matter material to the issue, where the law was accurately stated in a previous instruction on the subject and the record does not show any contradiction in the testimony except upon matters material to the issue.
    Brooks & Brooks, for appellant.
    R. P. Scott and Bert S. Duzan, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.


text:
    Lucy Jones, Administratrix, Appellee, v. Crescent Coal Company, Appellant.
    Gen. No. 6,122.
    1. Mines and minerals, § 149

      —when failure to comply with statutory regulation implied to he wilful. Failure of a coal mine operator to comply with' the provisions of the Mines Act (J. & A. ¶¶ 7533-7575), requiring the sprinkling or spraying of roadways, will be implied to be wilful. '
    2. Mines and minerals, § 176

      —when evidence sufficient to support finding that explosion due to failure to sprinkle roadway. In an action against a coal mine operator to recover for the death of a shot firer alleged to have been caused by an explosion resulting from a failure of defendant to sprinkle the roadways of its mine in accordance with the requirements of the Mines Act (J. & A. ¶¶ 7533-7575), evidence examined and held to support a verdict for plaintiff.

      3. Mines and minerals, § 125

      —when contributory negligence not a defense. In an action against a coal mine operator to recover for the death of a shot firer in a mine alleged to have been caused by an explosion resulting from the failure of defendant to sprinkle the roadway of its mine in the manner required by the Mines Act (J. & A. ¶¶ 7533-7575), contributory negligence is not a defense.
    4. Mines and minerals, § 41

      —when provisions of statute applicable to shot fires. The provisions of the Mines Act (J. & A. ¶¶ 7533-7575), are to be construed as being for the protection of shot firers in mines.
    5. Evidence, § 232

      —when verdict of coroner's jury admissible. In an action to recover for the death of a shot firer in a mine alleged to have been caused by an explosion, the verdict of a coroner’s jury that the death of deceased was caused by asphyxiation from gases generated by an explosion caused by a blast is admissible, although coming from the files in the coroner’s office and not from the circuit clerk’s office.
    6. Mines and minerals, § 152

      —when expert testimony inadmissible. Testimony of an expert, in an action to recover for the death of a shot firer, as to other explosions in the mine and his theory as to what caused them and what effect followed them, properly excluded.
    7. Appeal and error, § 1561

      —when refusal to give instruction not ground for reversal. A refusal to give instructions on principles of law covered in instructions already given is not ground for reversal.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Rehearing denied December 8, 1915.
    Quinn & Quinn and Weil & Bartley, for appellant.
    J. L. Murphy, for appellee, Sucher & Moore, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On January 15,1913, Edward P. Jones, Junior, and a man named Berm were working for the Crescent Coal Company in its coal mine as shot firers, when an expíosion occurred by which they were killed. Jones left a widow, and this suit was brought by the administratrix of his estate for her benefit, under section 29c of the Act concerning Mines and Miners (J. & A. ¶ 7503). The cause was tried upon a declaration and a plea of not guilty. Plaintiff had a verdict and judgment for $2,800, from which defendant below appeals.

The verdict and the judgment rest on the fourth count of the declaration. Besides many allegations showing that appellant was operating this coal mine and, that Jones was a shot firer therein in the second south entry, that count averred that said entry and other entries connected with and near it were so dry that the air had become charged with dust and had been in that condition for a long time prior to said date; that appellant wilfully neglected to have said passageways and entries regularly and thoroughly sprayed, sprinkled and cleaned, as required by statute, and that by reason of such wilful neglect and while Jones was firing shots for appellant near said entry, said dry air charged with dust caught fire and exploded with great force, because appellant had wilfully neglected to have such roadways or entries regularly and thoroughly sprayed, sprinkled and cleaned, and that by reason of such explosion Jones was killed. There are two provisions of the statute on this subject. Section 14m (J. & A. ¶ 7488) is as follows: “In case the passageways, roadways or entries of any mine are so dry that the air becomes charged with dust the operator of such mine must have such roadways regularly and thoroughly sprayed, sprinkled or cleaned.” The fifteenth clause of section 20a (J. & A. ¶ 7494) prescribes the following among the duties of the mine manager: “He shall see that all dusty haulage roads are thoroughly sprinkled at regular intervals designated by the mine inspector.” Jones was firing shots in rooms off the second south entry, and Benn in rooms off the first south entry. After the explosion the body of Jones was found in the second south entry near room 6 and the body of Benn in the first south entry near room 3. Boom 1 in each entry was furthest north. The air was moving in the entry from north to south. That part of the mine had been operated for several months and we are satisfied from the evidence that these entries were very dusty. Appellant had never sprinkled them or sprayed them until a few days before this accident, and they had not been sprinkled or sprayed at all for a day or two before the accident, and were very dusty on the day of the accident and prior to the explosion. If appellant failed to obey the statutes above quoted, the law will imply that that failure was wilful. This dust was partly coal dust and partly arose from the drying up of the earth in the entry. Appellant argues from the evidence that this was not coal dust but earth dust and that, if this was a dust explosion at all, only an explosion of coal dust would render appellant liable; and also that this was not a dust explosion and therefore appellant is not liable under this fourth count and the statute. We are of opinion that the jury were warranted in finding from the evidence that if this explosion originated from gas resulting from the firing of a shot, still that explosion reached the entry and fired the dust in the air, and that it reached and killed Jones because the air in the roadway was charged with dust, and under such circumstances appellant would be liable, as shown in Davis v. Illinois Collieries Co., 232 Ill. 284. Appellant argues that Jones and Benn commenced at the wrong place in that entry to fire the shots, and that the gas from the first shot remained in the mine because they had begun to fire at the wrong place, and that therefore they were guilty of negligence and that their negligence caused the explosion and therefore appellee could not recover. If the wilful failure of appellant to properly spray and sprinkle the entries caused the explosion, then the contributory negligence of the deceased is not a defense. Peebles v. O’Gara Coal Co., 239 Ill. 370; Hougland v. Avery Coal & Mining Co., 246 Ill. 609; Brunnworth v. Karens-Donnewald Coal Co., 260 Ill. 202, and many eases cited in the latter opinion. It is held in Davis v. Illinois Collieries Co., sufra, and Hougland v. Avery Coal & Mining Co., sufra, that the fact that the deceased fired a shot prepared in an unskilful manner is not a defense. It is held in Brennen v. Chicago & C. Coal Co., 241 Ill. 610, and Hougland v. Avery Coal & Mining Co., sufra, that shot firers are within the protection of this statute. We are therefore of the opinion that the jury were warranted by the evidence in finding a verdict for the plaintiff.

It is urged that the court erred in admitting in evidence the verdict of the coroner’s jury, which found that the deceased came to his death at the mine of appellant by asphyxiation from gases generated from an explosion of accumulated coal dust near room 1 in the second south entry, caused by a blast or blasts discharged in the process of mining coal. Section 14 of chapter 31 of the Revised Statutes (J. & A. ft 2405), relating to coroners, makes it the duty of the coronér’s jury to inquire how, in what manner, and by whom or what, the said dead body came to its death, and of all other facts concerning the same, together with all material circumstances in any way related to or connected with the said death. Under the authorities, a verdict of a coroner’s jury is admissible in evidence, which is confined to finding those facts concerning which the jury are directed to make inquiry. U. S. Life Ins. Co. v. Vocke, 129 Ill. 557. This verdict is confined to such an inquiry. It does not find that appellant wilfully or negligently or otherwise failed to spray or sprinkle or clean any passageways or entries in this mine. It is argued that said verdict was not competent because it did not come from the office of the circuit clerk, but had always been among the files in the coroner’s office in the courthouse. The verdict of the coroner’s jury held to have been properly admitted in evidence in Stollery v. Cicero & P. St. Ry. Co., 243 Ill. 290, was not shown to have been filed with the circuit clerk.

John Dunlap testified as an expert for appellant. He had witnessed an explosion of dust in June, 1914, and had witnessed another explosion about five years before, and he was asked various questions as to those explosions, to which the court sustained objections. The witness did not know what the condition of appellant’s mine was just before the explosion which caused the death of Jones. There was no proof that the conditions were the same at the time of those other two explosions. Testimony as to those other explosions and the theory of the witness as to what caused them and what effect followed them would have introduced into the case immaterial issues. The objection "to said questions was properly sustained. Appellant was permitted to put hypothetical questions to this witness and had his views on every material subject to which he was competent to testify, He was asked what in his opinion caused the explosion here in question and whether in his opinion it was a gas explosion or a dust explosion or a gas explosion augmented by a dust explosion. If these questions were material, then they asked for a decision upon the very question to be submitted to the jury, and were therefore incompetent. If they were immaterial, then it was not error to sustain objections to them. It is obvious from other evidence that a dust explosion could originate in the condition of the gas resulting from firing shots. He was asked to state this from his examination of the mine and from his experience, without asking him to detail what he learned from his examination of the mine. We are of opinion the court did not err in its rulings upon the testimony of this witness.

Complaint is made of instructions Nos. 6, 8,9 and 11 given at the request of appellee. Their object was to tell the jury that if the appellant wilfully violated the statute first above recited, and thereby caused the death of Jones, it would not be a defense that Jones or Benn had been negligent in the manner of firing the shots or that Jones had been negligent in any other respect which might have contributed to his death. They are supported by authorities above cited.

Appellant complains of the refusal of certain instructions marked “A,” “B,” “C,” “D,” “E,” “F” and “G-.” The court gave eight instructions as requested by appellant* and modified and gave several other instructions requested by appellant, and appellant seems to have had all the principles of law stated to which it was entitled. None of the seven instructions, of the refusal of which complaint is made, are correct. Some omit necessary elements; some omit to submit whether the failure of appellant to sprinkle was wilful; others are formed so as to give the jury to understand that if the explosion originated in an explosion of gas, resulting from the firing of a shot, then appellee could not recover, omitting the consideration of the evidence tending to show that this explosion was communicated to the dust in the air in the roadway and would not have reached Jones if the roadway had been properly sprinkled, and ignoring the things suggested in Davis v. Illinois Collieries Co., supra, on page 290.

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

Affirmed.

Mr. Justice Niehaus took no part.


text:
    Harley Baitty, Appellee, v. Toledo, Peoria & Western Railway Company, Appellant.
    Gen. No. 6,125.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Thedore N. Green, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 20, 1915.
    Statement of the Case.
    Action by Harley Baitty, plaintiff, against the Toledo, Peoria & Western Railway Company, defendant, for personal injuries resulting in the amputation of both legs. There was verdict and judgment for plaintiff for $25,000, from which defendant appeals.
    The declaration alleged that plaintiff was in the act of boarding the train with the intention of becoming a passenger thereon and was in the exercise of due care for his own safety; that defendant started the train without warning him, after plaintiff had been invited by its servants to board said train at that place and time, and that because of such wrongful conduct plaintiff was injured. The declaration also alleged in each of said counts that defendant had long been in the habit of stopping its passenger trains at a point between the Union Depot and the Illinois River bridge in the City of Peoria; that for a long time prior thereto it had been the practice and custom for large numbers of persons to board the passenger trains of defendant at such point; and that defendant knew of and sanctioned such custom, and had permitted and invited intending passengers to board its trains in that manner.
    The evidence showed that the passenger trains of defendant, leaving the Union Depot in Peoria on their eastbound run, cross Chestnut street immediately and proceed in a northeasterly direction across certain tracks of the Rock Island Railroad and the bridge over the Illinois River, and thence east. It is the contention of plaintiff that defendant’s train No. 2, on the night in question, came to a full stop just after leaving the depot, so that the first passenger coach rested on Chestnut street; that plaintiff approached this motionless train for the purpose of boarding it, having a ticket in his pocket entitling him to passage from Peoria to Washington, Illinois, took hold of the hand rails with both hands and was about to place his foot on the lowest step when the train started without any warning and with a great jerk; that he had been invited to board this train at this point by a man in uniform, standing on the platform of the car, whom he understood to be one of defendant’s servants; and that the jerk with which the train was started caused him to lose his hold on the car and he was thrown under the wheels and injured. It is the contention of defendant that this train did not stop at Chestnut street that night at all; that plaintiff attempted to get on the train while it was in motion and was injured thereby; that no employee of the company invited him to get on; that plaintiff was intoxicated when he tried to get on the train; and that defendant had no custom of stopping its passenger trains at Chestnut street and inviting and permitting passengers to board its trains there, but that it was occasionally obliged to stop its trains so that a part thereof rested on Chestnut street, because its crossing of another railroad ahead was blocked by other trains.
    Two witnesses testified for plaintiff that the train was at a standstill when he tried to get on, one of these witnesses being plaintiff. Four witnesses testified for defendant that the train was in motion when plaintiff was trying to board it, and of these witnesses two were not railroad men, while the other two were not employed by appellant but by another railroad company at Peoria. On the question whether or not train No. 2 stopped at Chestnut street the night in question before plaintiff attempted to get on, two witnesses, one being plaintiff, testified that the train ¿id so stop, while at least nineteen witnesses testified that the train did not stop at all after leaving he Union Depot until after the rear of the last coach was north of Chestnut street a considerable distance. Some of these witnesses were railroad men working for appellant, but at least ten of the witnesses on this point had no connection with defendant or any other railroad company.
    On the question whether or not an employee of defendant invited plaintiff to board the train at Chestnut street, plaintiff testified that, as he went along the street towards the train, a man on the platform, who appeared to be dressed in a blue uniform, called out to him to “Hurry up,” but plaintiff afterwards failed to identify either the conductor or the brakeman on duty on that train that night as being the person who had made that remark to him, while the conductor and the brakeman, the only uniformed servants of defendant on that train that night, denied that they had seen plaintiff before he was run over or that they had urged or invited him to board the train.
    Plaintiff and four others testified that he was not intoxicated the evening of the accident, while sixteen witnesses testified for defendant to circumstances making it apparent that appellee was under the influence of liquor when he attempted to board the train. Three doctors and two nurses testified to the odor of the liquor on his breath after the accident and to the fact that the amount of anaesthetic required in his case before operating upon him immediately after the accident was less than usual because of his being under the influence of liquor. In rebuttal, one of plaintiff’s witnesses testified that while plaintiff lay on the ground, just after being injured, some one produced a bottle of whisky and gave a part of its contents to plaintiff. This witness was the only one who testified to this occurrence and he was unable to identify the person who produced the liquor. Others present at the same time denied that any such thing happened.
    Abstract of the Decision.
    Carriers, § 289

      —when carrier not liable to passenger attempting to board train. In an action to recover for injuries to passenger attempting to board train, evidence examined and held to show that passenger was intoxicated at time of attempting to board train while in motion, that he was without the exercise of due care for his own safety and that carrier was not negligent.
    Fifteen witnesses testified for plaintiff that this particular train was in the habit of stopping with one or more of its coaches on Chestnut street and that passengers frequently boarded it at that point, and while the train was at a standstill. Twenty-eight persons testified for defendant that there was no established custom on the part of the servants of defendant operating this train to bring it to a stop at Chestnut street, and many of these witnesses stated that such persons as occasionally boarded his train at Chestnut street did so while the train was moving slowly across the street. Some of defendant’s witnesses on this point were railroad men, but many of them were without any apparent interest.
    Frank T. Miller and John M. Elliott, for appellant; Stevens, Miller & Elliott, of counsel.
    Henry E. Rathbone and Clarence W. Heyl, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.


text:
    Charles E. Barritt, Appellee, v. A. W. Steidinger, Appellant.
    Gen. No. 6,126.
    1. Contracts, § 187

      —when construction of parties adopted by cowrt. If a contract is ambiguous the construction which the parties have placed upon it by their conduct will be adopted by the courts, if such construction is reasonable, and in such case evidence as to the construction by the parties is admissible.
    2. Brokers, § 84

      —when evidence of compromise admissible. In an action to recover compensation for the negotiation of the sale of realty, a letter containing an admission that the deal shall be put through as arranged if plaintiff refuses his claim for compensation is admissible in evidence.
    3. Appeal and error, § 788

      —when matter not contained in record not considered. A bill of particulars and an affidavit of merits not contained in the bill of exceptions are not before the court for consideration on appeal.
    Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 20, 1915.
    Robert Henning, O. F. Morgan and F. M. Crangle, for appellant.
    Pallissard & Benjamin and Saum & Malo, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Charles E. Barritt was a real estate agent at Watseka. A. W. Steidinger lived at Forrest in Livingston county and owned a farm in Iroquois county which he wished to sell. He entered into a written contract, authorizing Barritt to sell it on terms therein stated, Barritt to have all he could get over a certain price as his compensation for selling it. Barritt procured A. Buchholz and George Worthington to buy it and signed a contract with them. Steidinger refused to convey. Barritt brought this suit to recover his agreed compensation, and filed a declaration containing a special count on the contract, and the common counts. Defendant pleaded the general issue, there was a jury trial, and Barritt had a verdict and a judgment for $1,100, from which Steidinger appeals. Appellant claims that the contract had a plain and unambiguous meaning; that that meaning was not what was alleged in the special count and therefore appellee could not recover; that the court erred in admitting oral and documentary evidence showing how the parties themselves construed the contract; and that there are other minor errors in the record. Appellee contends that the contract has the meaning which he gave it in his declaration; that, if not, it is ambiguous and evidence was competent to show the construction which the parties themselves placed upon it; that the parties construed it as he declared upon it in the declaration; that, as so construed; he obtained the price called for by the contract and was entitled to recover.

The date of the contract was November 22,1913, and the body of it was as follows:

“I, the undersigned, hereby authorize C. E. Barritt, of "Watseka, Illinois, to sell the following described real estate, situated in Iroquois County, Illinois.
“The west half of the N. W. ¼ Sec. 34, T. 27, R. 12 W. containing eighty acres more or less, for the sum of Eight Thousand Dollars upon the following terms: Dollars when the sale is made. Bafemee°Maroh let, 1014: $8,000.00 Dec. 1st, 1913, subject to incumbrance of $5,000.00 and interest from Dec. 1st, 1913.
“In consideration of C. E. Barritt using his best efforts to sell said premises and the payment of One Dollar receipt of which is hereby acknowledged. He is to have the exclusive sale of the above described premises until January 1st, 1914. And that he is to have everything and all above $8,000.00 Dollars, that he may sell the above described real estate for, as his commissions for selling the same. And I hereby agree to furnish an abstract to said premises showing a merchantable title. And make the consideration in the deed any amount he may designate.”

The proof shows that the words “One hundred dollars” and “Balance March 1st, 1914” were typewritten in the contract when it was prepared for signature, but were stricken out by appellant’s direction and the line and a half written in its place. The construction contended for by appellee is that he was to sell the farm for $8,000; that $5,000 of that was to be paid by assuming an incumbrance for that amount upon the farm, (with interest from December 1, 1913, and that the balance of $3,000 was to be paid in cash on the same date. The purchasers agreed to pay $3,000 on or before December 1, 1913, and to assume the mortgage of $5,000 and to deliver three stallions. They did deposit $3,000 in the First National Bank of Watseka to await the delivery of an abstract showing merchantable title, and they delivered the three horses to Barrit, which horses on appellee’s theory of the construction of the contract, would be his commissions. Either the contract means that the land was to be sold for $8,000 as indicated in the first and last parts of the contract, or, if the language therein, “$8,000 Dec. 1st, 1913, subject to incumbrance of $5,000.00 and interest from Dec. 1st, 1913,” standing by itself would be construed to mean a sale for $13,000, then the contract is ambiguous, and uncertain as to the selling price. We can hardly say that it clearly means a sale for $13,000 when, as we shall see hereafter, the parties themselves construed it to mean $8,000. If a selling price of $8,000 for the farm is the true construction, appellee’s declaration and proofs entitled bim to recover. If the contract is ambiguous, then it is a familiar rule that the construction which the parties have placed upon it by their conduct will be adopted by the courts in the event of litigation concerning it, if that construction is reasonable. People v. Murphy, 119 Ill. 159; Burgess v. Badger, 124 Ill. 288; Carroll v. Drury, 170 Ill. 571; W. H. Purcell Co. v. Sage, 200 Ill. 342; Consolidated Coal Co. of St. Louis v. Jones & Adams Co., 232 Ill. 326; McLean County Coal Co. v. City of Bloomington, 234 Ill. 90; D. M. Goodwillie Co. v. Commonwealth Elec. Co., 241 Ill. 42. The court therefore properly admitted evidence showing how the parties understood the contract.

The proof shows that upon making the sale appellee twice called appellant by telephone and told him the terms upon which he had sold it, and for him to deliver his abstract to the First National Bank of Watseka for examination, and that the parties were ready to deposit the $3,000 there which he was to receive, and to assume the incumbrance, and to deliver the three horses, and that appellant expressed himself satisfied. These conversations are not denied by appellant or by any one. Appellee then wrote two letters to appellant in which he told him what had been done and to turn the abstract over for examination. Under date of December 18, 1913, appellant wrote appellee a letter in which he expressed willingness to sell the property on the terms specified, except that he would only give appellee a, commission of two per cent.; or he was willing that appellee should have $500 or $600 for his work, and the deal should be put through. Appellant contends here that this letter was an offer to compromise and therefore it was error to admit it in evidence. The general rule is as contended for by appellant, but the letter contains an admission that the deal shall be put through as arranged, if appellee would reduce his claim for compensation, and for that reason we are of opinion it was competent. But, if it was incompetent it did appellant no harm, because of other correspondence in evidence. A man by the name of Horneman, connected with the Watseka Creamery, bought a farm adjoining this farm of appellant’s. On November 27,1913, appellant wrote him that he had heard that he had bought this other farm and had paid $200 per acre for it and would like to sell him appellant’s farm. Under date of November 9, 1913, Horneman wrote appellant that he paid considerably less than $200 per acre for his farm and asked appellant what the price of his eighty was. To this appellant replied that he had offered his eighty for $100, but his wife would not sign the papers and so that they had made up their minds not to sell it for less than $150 per acre. Appellant contends that this correspondence was incompetent, but it contains an admission over the signature of appellant that he offered his eightly acres for $100 per acre, and that the deal fell through because his wife would not sign the deed. Appellant’s counsel contend that this might have referred to a different eighty acres, but the proof disclosed that the farm bought by Horneman was adjoining the eighty of appellant in question and appellant did not testify to contradict that evidence. Thereafter, under date of January 4, 1914, appellant again wrote appellee that he had talked the matter over with his wife and she would not sign unless he would accept $2 per acre as commission; that he had really given this farm to his wife and they were willing to take what he sold the farm for and give appellee $2 per acre for selling it. Nowhere, in correspondence or conversation, did appellant claim that the farm should have been sold for $13,000 or that he should have $8,000 besides the mortgage. That theory has been invented since this suit was begun and rests exclusively upon the language of the contract, and is not sustained by any evidence offered by appellant. It is clear from all the evidence that both parties construed the contract to mean a sale of the farm for $8,000 and the receipt of the $3,000 by appellant and an assumption of the mortgage by the purchaser, but when appellant learned the value of the three horses which the purchasers agreed to give over the $8,000, the wife refused to sign and appellant refused to convey. The evidence was competent and it is all one way, and supports the special count of the declaration and entitled appellee to recover.

The proof as to the value of the horses ranged from $1,250 to $1,500. One witness said that one of the horses was lame and he refused to put a price on that one. On that account, probably, the jury found only $1,100. It seems that after this deal fell through, appellee became the owner of the horses by some other deal between himeslf and Buchholz and Worthington, and appellant introduced a letter in which appellee offered to sell the horses for $1,200. That transaction, after appellant had refused to perform his contract, has no bearing on this case, except as it tends to show what value appellee placed upon the horses.

There was a bill of particulars filed with the declaration and an affidavit of merits by appellant concerning his version of the transaction, and appellant seeks to make some use thereof in argument here. We do not see that these papers change the situation; but neither of these documents is in the bill of exceptions, and therefore they are not before this court for consideration. Eggleston v. Buck, 24 Ill. 262; Star Brewery v. Farnsworth, 172 Ill. 247; Dumbeck v. Walsh, 179 Ill. App. 239. In George H. Hess Co. v. Dawson, 149 Ill. 138, there is a suggestion that if the bill of particulars was filed with the declaration, it might be treated as a part of the record, but that position was abandoned in Boyles v. Chytraus, 175 Ill. 370, where it was said: “The copy of the instrument sued upon, or the bill of particulars, indorsed on the declaration, being no part thereof, is no part of the record; and a bill of exceptions can alone inform us of what it is.”

The ruling of the court upon the instructions was in harmony with the views above expressed and is approved. If any instruction appeared to authorize the jury to construe the contract, an instruction requested by appellant also submitted the construction of the contract to the jury, and appellant cannot complain thereof. The jury did construe the contract correctly. The judgment is affirmed.

Affirmed.