text:
    James M. Clark v. Samuel Evans.
    1. Abatement—when plea of, appropriate method of attacking service. A plea in abatement is the. only appropriate method of attacking service of summons on the ground that the defendant was sued in the wrong county.
    2. Abatement—what waives question of legality of service. By the filing of a general demurrer to a bill for want of equity and making a motion to dissolve an injunction issued thereon, a defendant waives his right to insist that he was sued in another county than that in which he resided, and he thereby submits his person to the jurisdiction of the court.
    3. Decree—when may he entered without taking of proofs. Where the defendant elects to abide by a demurrer to a bill a decree pro confesso may be entered against him, and the chancellor is warranted in finding the facts averred in the bill to be true without further proof.
    4. Decebe—what sufficient to support. A decree is sufficiently supported by the averments of a hill which have been taken pro confesso where such averments show a right to the relief granted.
    5. Equity—when will cancel contract for fraud. Equity will cancel a contract for fraud inducing its execution where it appears that false and fraudulent representations of material matters were made by one of the parties to such contract knowing such representations to be false.
    Bill in chancery. Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    Blinn & Covey, for appellant.
    King & Miller, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a bill in chancery addressed to the Circuit Court of Logan county, Illinois, and filed by appellee against appellant, by which it is sought to have canceled, because of alleged fraudulent misrepresentations, a certain contract between the parties for the exchange of appellee’s farm in the State of Minnesota for a lot of ground in Clinton, DeWitt county, Illinois, belonging to appellant and further to enjoin appellant from placing of record such contract, thereby creating a cloud upon the title to appellee’s farm. The writ of summons was forthwith issued against the defendant to said bill and duly served upon him at Lincoln, the county seat of said Logan county. A writ of injunction was also issued in accordance with the prayer of the bill and likewise served upon the defendant.

Upon the convening of court the defendant, limiting his appearance for that purpose, entered a motion to quash the service and return to the summons and service and return to the writ of injunction, upon the ground that the service of said writ was procured by fraud, and further, because the defendant, at the time of the filing of the bill, was a resident of McLean county, Illinois, and had been for three years last past; which motion was supported by the affidavit of the defendant tending to show such facts. The chancellor overruled the motion, and then granted leave to appellee to amend his bill; whereupon the defendant interposed a general demurrer to the amended bill urging a want of equity in the same; also a special demurrer thereto challenging the jurisdiction of the court over either the person of the defendant, or the subject-matter of the suit, upon the ground that the allegations of the bill showed that the defendant was a non-resident of Logan county; that he was a resident of McLean county, at the time of the bringing of the suit, and that the bill of complaint did not relate to any land located in Logan county, or real estate therein. A motion to dissolve the injunction was also made. The chancellor overruled the general and special demurrer, and the defendant elected to abide thereby. The motion to dissolve the injunction was also overruled. A final decree was then entered pro confesso, for want of answer, in accordance with the prayer of the bill. An appeal therefrom was thereupon prayed and perfected by the defendant. The action of the chancellor in overruling each of the foregoing motions, in overruling the demurrer, and in entering said decree, is assigned and urged as error.

We are of opinion that the chancellor properly overruled the motions in question. The service and return of both writs appear to be regular in form and in strict conformity with the law. No defect therein is apparent upon an examination of the record. The words in the contract which recite that appellant is “of Bloomington, Illinois,” obviously are but descriptive and do not constitute an averment that such was Ms residence at the time of the commencement of the suit. The reasons urged in support of the motions were, therefore, if valid, founded upon purely extrinsic facts and should have been pleaded in abatement in order that the issue of fact thereby made could be duly determined either upon reference- or a direct hearing by the court. Otherwise, questions, upon the determination of wMch important rights might depend, would be disposed of in the most summary manner. McNab v. Bennett, 66 Ill. 157; Willard v. Zehr, 215 Ill. 148.

'Moreover, we are further of opimon that by interposing a general demurrer to the bill for want of eqrnty, and filing a motion to dissolve the injunction, appellant waived Ms right to insist that he was sued in another county than that in wMch he resided, and that he thereby submitted Ms person to the jurisdiction of the court. While it is true that the want of jurisdiction over the subject-matter of a suit can be raised at any time and in any manner, or by the court sua sponte, a different rule applies where the question of jurisdiction of the person of a defendant is involved.

The jurisdiction over the subject-matter cannot be conferred by the waiver or consent of the parties, but the statutory right of a defendant to be sued in the county where he resides, being a mere privilege and affecting only the jurisdiction of Ms person, may be waived by the failure to claim such privilege at the proper time and by a proper plea interposed for that purpose solely. Drake v. Drake, 83 Ill. 526. It is well settled that the filing of a general demurrer constitutes a general entry of appearance unless the same is based solely upon the ground of want of jurisdiction of the person. 3 Cyc. Law and Prac., 506-511; Ry. Co. v. Kenney, 62 N. E. 27 (Ind.); Holliday v. Perry, 78 N. E. 877 (Ind.).

Appellant must therefore be held to have voluntarily entered his general appearance in the canse and, the action being transitory and not local, to have conferred upon the court to which the writ of summons was made returnable, as full and complete jurisdiction over his person as if he had been a resident of Logan county at the time of the service of the writ upon him.

The averments of the bill, briefly stated, are substantially the following: That the complainant, Evans, was on November 21, 1906, the owner of 760 acres of land in the state of Minnesota; that on that day Clark, the defendant, proposed to the complainant to exchange for the same certain property which he claimed to own in the city of Clinton, Illinois; that as an inducement to the complainant to visit Clinton and examine the said property, the defendant represented that the same was worth the sum of $35,000, and that the sum of $12,000 had been borrowed upon said property and was at that time a lien thereupon; that said property was leased to a responsible tenant for the term of two years from January 1, 1907, with an option to said tenant to extend said term for five years, at a rental of $150 per month, which sum the complainant represented was a fair and reasonable rental for said property. That in consideration of such representations, the complainant accompanied the defendant to Clinton for the purpose of examining said property with a view to the exchange of his Minnesota land for the same; that upon their arrival at Clinton, the defendant showed said premises to the complainant and for the purpose of inducing him to make such exchange as aforesaid, repeated to him the representations in question, and for the purpose of inducing the complainant to believe the same referred him to 'some person to the complainant unknown, whom the defendant represented to be the tenant to whom the property was leased, and requested the complainant to obtain from such person the truth of defendant’s representations pertaining to said pretended lease. That thereupon the complainant had a conversation with such unknown person who stated to complainant that he was the tenant of said property and had the same leased upon the terms and for the period .as stated by the defendant, and further that the sum of $150 per month was a fair and reasonable rental vahm of said property and could be secured for the same.

That the defendant and his confederates prevented the complainant from making any further inquiry or investigation as to the value of said property or as to the truthfulness of the representations of the defendant as to its value or rental value; that in order to thwart the efforts of the complainant in that direction, and for the purpose of deceiving him, the defendant procured some person to the complainant unknown and whom the defendant represented as having erected the building upon the-premises, and whom he informed the complainant would give him a true statement of the value of said property, to visit said building in company with the complainant and show him the same; that said person then and there stated to the complainant that the property was worth at least $30,000; that for the further purpose of deceiving the complainant as to the value of said property, the defendant procured some other confederate to call him, the defendant, by telephone, from the city of Bloomington and held a conversation with such person in the presence and hearing of the complainant, by reason of which conversation it was intended by the defendant that complainant should be, and he was, in fact, led to believe that certain persons were exceedingly anxious to trade a good farm to the defendant for said Clinton property, and that they insisted upon an immediate decision by the defendant as to whether or not he would make such proposed pretended trade; that following such conversation the defendant stated to the complainant that he had a bona fide offer by which he could trade his Clinton property for a good farm and that it was necessary that he should know at once whether or not complainant was willing to make the proposed exchange of his Minnesota land for such property. That upon the strength of the representations made to him by the complainant and his said confederates as aforesaid, and believing all of said representations and relying upon the truthfulness of each and all of them, and in consideration thereof, and being influenced thereby, the complainant was induced to make a hasty decision, and on November 21, 1906, entered into a contract with the defendant for the exchange of his Minnesota land for said Clinton property, a copy of which contract is attached to and made a part of the bill. That after the complainant had entered into said contract as aforesaid, he ascertained that all of the statements and representations made by the defendant, the alleged tenant of said property, and the person whom the defendant introduced as the builder of the building upon the property, were false and fraudulently made or caused to be made for the purpose of misleading and defrauding the complainant.

That the complainant believing in and relying upon the truthfulness of all of said representations so made to him by the defendant and other persons unknown as aforesaid, was misled and deceived into executing-said contract. That at the time the said representations were made by the defendant, and when said contract was entered into, the defendant did not own said Clinton property; that he had not, nor had any other person secured a loan of $12,000 upon said Clinton property; that said $12,000 which was a lien upon the same covered a large quantity of other property, and that in fact a commercial loan of $12,000 could not be secured upon said real estate; that all of said facts were unknown to the complainant at the time he executed said contract, but on the contrary at the time he believed in and relied upon the truthfulness of all the representations which had been made to him as aforesaid by the defendant and said other persons unknown whom the complainant charges were in confederation with the defendant to defraud the complainant. That at the time said representations were made and the contract was entered into, said real estate was in fact owned by one Mickelberry; that the building upon said real estate was not at that time rented to any bona fide tenant but was being and for a long time prior thereto had been occupied by said Mickelberry for the purposes of his own mercantile business; that for the purpose of deceiving the complainant as to the truth of the representations that had been made by the defendant as to the rental value of said premises, the agent of Mickelberry pretended to have a lease for said premises at the rental of $150 per month; that said pretended leasing of said premises was a part of a conspiracy to advance Mickelberry’s interest in procuring a sale of the property, and to enable the defendant to defraud the complainant or any other person to whom he might undertake to sell said real estate; that said premises were not worth to exceed $12,000; that the fair cash rental value of the same would not exceed $75 per month, and that if the complainant was compelled to carry into effect said contract he would be defrauded out of a large sum of money, to wit, $10,000. That the defendant was utterly and wholly insolvent, and that any judgment against him would be unavailing; that he had threatened to record said contract in said Polk county, Minnesota, which, if done, would create a cloud upon the title of complainant to his land described therein, and that the defendant was also threatening to enforce the terms and provisions of said contract by a suit at law. The prayer of the bill is that the defendant may be required to answer the same, that the contract in question be declared null and void, and by the decree of court forever canceled; that a temporary injunction be issued restraining and enjoining the defendant from clouding the title to complainant’s land described in the contract, by filing the same for record or procuring it to be recorded upon any of the public records in the state of Minnesota, and from in any way or to any extent asserting rights under and by virtue of said contract until the further order of the court. A prayer for general relief is added.

The contract which it is sought to have nullified provides for the exchang-e of the Clinton property for the Minnésota property and recites that the former is owned by the defendant and the latter by the complainant. It further recites that in the trade, the Minnesota property is valued at $30,400 and the Clinton property at $30,700, and that the defendant assumes and agrees to pay an existing mortgage upon the Minnesota property for $11,900, and that the complainant on his part assumes and agrees to pay an existing mortgage on the Clinton property of $12,000. It is further provided that should either party fail to comply with any. of the provisions of said contract, he should pay to the other the sum of $2,000 as liquidated damages for such failure.

It is contended that the facts averred in the amended bill are insufficient to entitle appellee to the equitable relief prayed.

Inasmuch as appellant elected to abide by his demurrer and suffer a decree pro\ confesso to go against hirrg the chancellor was warranted in finding the facts averred in the bill to be true without further proof. Van Valkenburg v. Trustees, 66 Ill. 103; Hoffman v. Schoyer, 143 Ill. 598. The record therefore shows that the representations averred were made as alleged; that the same were false and untrue; that they were known by appellant to be false; that they were made or procured by appellant to be made for the purpose of deceiving appellee as to the value of the Clinton property; that appellee believed said representations, relied upon the same, and was thereby influenced and induced to enter into the contract; and further that appellant was at the time of the filing of the bill, threatening to place said contract of record in Polk county, Minnesota; that the same would thereby have become a cloud upon the title to the land owned by appellee in said county; and that appellant would have so recorded said contract had he not been restrained from so doing. That equity will grant relief against a contract procured by fraud, if its aid is invoked in apt time, is well settled. Castle v. Kemp, 124 Ill. 307; Thomas v. Coultas, 76 Ill. 493; Preston v. Spalding, 120 Ill. 208. A court of chancery has also jurisdiction to prevent the creation of a cloud upon the title to real estate. Groves v. Webber, 72 Ill. 606; Bennett v. McFadden, 61 Ill. 334. The record further shows that appellant represented to appellee that a loan of $12,000 had recently been procured upon the Clinton property by mortgage which was then a lien thereon, and- that such representation was false and untrue. This fact was of itself a good ground for canceling the contract. Kehl v. Abram, 210 Ill. 218; Cox v. Montgomery, 36 Ill. 396.

It further'appears from the record that appellant represented to appellee that said property was then leased to a responsible tenant by a bona fide lease for the term of two years at the cash rental of $150 per month, with the privilege to the lessee of renewing the lease for a further term of four years at the same rental, and that he procured the alleged lessee to corroborate such statement which representation was also false and untrue. This fact also constituted of itself equitable ground for annuling the contract. Briggs v. Dunne, 168 Ill. 226; Cox v. Montgomery, 36 Ill. 396; Weatherwax v. Riddle, 121 Ill. 141.

Such.representations related to then existing conditions and were manifestly material. We therefore conclude that the general demurrer to the amended bill was properly overruled and that a decree for the relief asked by the bill was properly entered.

The contention that inasmuch as no evidence has been preserved and there are no findings of facts contained in the decree, there is no basis for the decree rendered, is without force. The decree is based entirely upon the averments of the amended bill which is a part of the record, and where a bill is taken pro confesso, it is unnecessary that the facts should be preserved in any other way. Miller v. Davidson, 3 Grilm. 518; Roach v. Chapin, 27 Ill. 194; Baird v. Powers, 131 Ill. 66.

The decree of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Samuel McNutt et al.
    1. Justice oe the peace—jurisdiction of. to award damages. A justice of the peace has jurisdiction to award consequential -damages for injuries to personal property occasioned by negligence.
    2. Common cabbiebs—what essential to limitation of liability. To render a contract of shipment limiting the liability of the carrier, binding upon the shipper, the carrier must establish by the greater weight of the evidence that the shipper assented to the terms and conditions of the contract.
    3. Pbincipal and agent—what does not bar suit by undisclosed principal. An undisclosed principal is not debarred from prosecuting his action against one who contracts with his agent.
    4. Evidence—when opinion incompetent. It is improper to permit a witness to testify as to what in his opinion was a reasonable running time for a railroad between certain designated points.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Coles county; the Hon. James W. Cbaig, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin & Gillespie and H. A. Neal, of counsel.
    J. P. Harrah and J. H. Marshall, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This action was originally brought before a justice of the peace, by appellees, stock dealers at Charleston, Illinois, against the appellant company for the recovery of damages alleged to have been occasioned by unreasonable delay on the part of appellant in transporting’ from Charleston to Indianapolis, four carloads of hogs consigned to live stock brokers for sale upon the open market. A trial in the Circuit Court on appeal from the justice of the peace, resulted in judgment in favor of appellee for $100. The damages claimed are for shrinkage in weight by reason of the prolonged confinement of the hogs in the cars, loss from depreciation in the market prices, and extra feed bills necessarily paid by appellees. The jury was justified in finding from the evidence that there was an unreasonable delay as claimed because of the negligence of appellant, and that by reason thereof, appellees were damaged to at least the amount of the judgment. The verdict upon such issues is therefore conclusive. It is urged that a justice of the peace has no jurisdiction to award consequential damages for injuries to personal property occasioned by mere negligence. This court has held otherwise in Smithley v. Snowden, 120 Ill. App. 86; Northrup v. Smothers, 39 Ill. App. 588; and Skinner v. Morgan, 21 Ill. App. 209. It is also insisted that the verdict and judgment were unwarranted for the reason that the shippers of the hogs, in each instance, signed a contract of shipment containing the provision that no claim for damages should be paid by the carrier, or sued for by the shipper, unless the same was made in writing, verified by affidavit, and delivered to the freight claim agent within five days after the stock were unloaded, and that appellees failed to comply with such conditions. It is well settled that to render a contract of shipment limiting the liability of the carrier, binding upon the shipper, the carrier must establish by the greater weight of the evidence that the shipper assented to the terms and conditions of the contract. Wabash B. B. Co. v. Thomas, 222 HI. 337. Whether the shippers in the present case assented to the terms and conditions of the contracts in question was an issue of fact for the jury. We are unable to say that their finding thereon was so manifestly contrary to the evidence as to warrant a disturbance of the verdict.

It is further contended that inasmuch as the shipments were made in the individual names of the partners the suit could not be maintained in their names jointly. While two of the shipments were made in the name of H. K. Wright, one in the name of McNutt & Perisho and one in the name of McNutt & Newman, the evidence shows that each was made for all of the appellees as partners, and that the persons making • said shipments were acting as the agents of the partnership. It is true, so far as this evidence discloses, that appellant had no knowledge that these parties were acting as agents of appellees. An undisclosed principal is not however debarred from prosecuting his action against one who contracts with his agent. Conklin v. Leeds, 58 Ill. 178; R. R. Co. v. Walsh, 85 Ill. 58. Moreover, appellees had a right of recover against appellant for failure to perform its common law duty as a common carrier, independent of the contracts.

The court erred in permitting the witnesses McNutt and Perisho to testify what in their opinion was a reasonable running time between Charleston and Indianapolis, but we are satisfied that such error did not affect the verdict as there was other evidence tending to show that the delay was unreasonable.

There being no prejudicial error in the record, the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    City of Waverly v. Charles Goss.
    1. Instruction—upon degree of proof; what proper. In a QMasi-criminal prosecution, it is not error to instruct the jury that before a verdict can be rendered against the defendant the plaintiff must make out its case by a "clear preponderance of the evidence.”
    2. Instbuction—when, upon presumption of innocence, properly given. It is proper to instruct the jury upon the presumption of innocence in a gwsi-criminal prosecution.
    Action to recover penalty for violation of ordinance. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    A. L. Hamilton and Worthington & Reeve, for appellant.
    William N. Hairgrove, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action against appellee to recover the penalty prescribed for an alleged violation of an ordinance of the appellant city prohibiting the sale of intoxicating liquors, a trial by jury resulting in a verdict finding the defendant not guilty. From the judgment of acquittal rendered on such verdict this appeal is prosecuted by the plaintiff.

It is first urged as ground for reversal, that the verdict is contrary to the evidence. We have carefully examined the evidence as it appears in the abstract, and are unable to say that the verdict is so clearly contrary thereto as to warrant this court in disturbing the finding of the jury, whose province it was to determine the issues of fact.

By the eleventh instruction given on the part of the defendant, the jury were told that the term “clear preponderance of the evidence” meant such evidence as 1 ‘ clearly convinces the minds of the jury that the defendant is guilty as charged,” and that “if the evidence fails by a clear preponderance to convince the jury that the defendant is guilty” they should so find; and by the twelfth instruction, that “if the evidence fails by a clear preponderance to satisfy the jury of the guilt of the defendant, ’ ’ then they should find him not guilty.

It is contended by appellant that a higher degree of proof was thus required of it than is imposed by law. We are of opinion that the instruction in question substantially stated the rule applicable to cases of this character. T., P. & W. Ry. Co. v. Foster, 43 Ill. 480; Palmer v. People, 109 Ill. App. 269; Sloan v. People, 108 Ill. App. 545; A,, T. & S. F. Ry. Co. v. People, 227 Ill. 270.

Complaint is made of instruction eleven, which states that the law presumes a defendant to be innocent and that such presumption is a substantial part of the law of the land. We perceive no objection to this instruction. While the.present proceeding is not a criminal one, it is gwím-criminal, and the same rule applies in either case. Naylor v. City, 56 Ill. 285; Wiggins v. City, 68 Ill. 372; Tully v. Town, 6 Ill. App. 359; Berkowitz v. Lester, 121 Ill. 99; Bratsch v. People, 195 Ill. 166.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Mattoon City Railway Company v. Daniel Graham.
    1. Master and servant—duty of former to regulate time and manner of running trains. It is a duty which the master owes to his servants to use reasonable care so to regulate the time and manner of running its cars that those of its servants who were engaged in operating them would be informed as to times and places and manner where and in which the same should meet and pass in order that collisions might be avoided.
    2. Assumed risk—when doctrine of, inapplicable. The doctrine of assumed risk has no application where the servant acts pursuant to an express order of his master. If, however, such servant, in obeying such order, is reckless, the doctrine of contributory negligence applies.
    3. Verdict—when not excessive. A verdict for $5,000 rendered in an action for personal injuries is not excessive where it appears that at the time of the injury the plaintiff was thirty-three years oí age, sound in health and limb, six feet tall and weighed 298 pounds; that he received a wound in his forehead extending from the hair to the eye which left a scar; that his entire left side was bruised and skinned, his leg and ankle twisted and his foot jammed; that he suffered and continued to sufier up to the time of the trial much pain and became unable to walk without the aid of crutches, and that a chronic tuberculosis condition, which may ultimately cause his death, exists in his foot.
    Action in case for personal injuries. Appeal from the City Court of Mattoon; the Hon. Horace S. Clark, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    H. M. Steely and Andrews & Vause, for appellant.
    Bryan H. Tivnen, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by Daniel Graham against the Mattoon City Bailway Company to recover damages for personal injuries sustained by the plaintiff, a motorneer in the employ of the defendant, through the alleged negligence of the defendant in the operation of its electric railroad. The jury returned a verdict in favor of the plaintiff and assessed his damages at $5,000. Motions by the defendant for a new trial and in arrest of judgment were overruled. From the judgment rendered upon said verdict this appeal is prosecuted by the defendant. At the close of the plaintiff’s evidence and again at the close of all the evidence, the conrt refused to direct a verdict for the defendant. The first count of the declaration as finally amended avers that the defendant owned and operated a single track railroad, and cars thereon, propelled by electricity, conveying goods and passengers, and maintained a switch east of Mattoon known as Jones switch; that it had in force a schedule or time table providing for the movement of all its regular trains, said schedule not covering irregular, special or extra trains; that while defendant was moving its train No. 11, in a direction from east to west, from Charleston to Mattoon, which train was one of the regular and scheduled trains aforesaid, thé plaintiff, as defendant’s motorman, by servants of defendant not fellow-servants, of plaintiff, was carelessly and negligently ordered to take a special irregular or extra car No. 18, not shown upon said time table or schedule, and proceed from Mattoon to Jones switch, and there meet said regular car No. 11, without notice to the servants on No. 11 of said order and directions to. the plaintiff, or of the presence or approach of the plaintiff in time to avoid the danger; that while said servants in charge of both said cars, were exercising reasonable care and caution, proceeding from opposite directions toward each other, before plaintiff had reached Jones switch, because of defendant’s negligence aforesaid, the said cars collided, and plaintiff was injured, etc.

The third additional count contains the same averments as in the first count and in addition thereto avers that the defendant negligently failed to adopt any reasonably safe system or method whereby said cars might be operated with reasonable safety -from collision one with the other, and whereby reasonable notice might be given to those operating each of said cars, of the presence and movement of each other upon said single track, within a time reasonably sufficient to avoid a collision between said cars.

The fifth additional count charges that the plaintiff was ordered to meet No. 11 at Jones switch, and that defendant disregarding its duty to give plaintiff a clear way to said meeting point, free from opposing trains, and to exercise reasonable care and caution, was executing his orders, proceeding to said meeting point, and before he had arrived at Jones switch, defendant negligently permitted No. 11 to be driven against him, and failed to exercise reasonable care for safety of plaintiff, and by means of defendant’s negligence in that regard, the collision and injury occurred.

Appellant operates an electric railway running east and from Mattoon to Charleston, a distance of about twelve miles. About seven blocks east of the starting point in Mattoon is a switch called Banana siding. One and three-quarters miles east thereof is another switch called Jones switch, further east is a station called Loda, which is about six miles from Mattoon, and still further east is Urban Park, at which baseball games were played upon several days of the week during the summer. Midway between Banana siding and Jones switch the track curved north for the distance of 1,325 feet, following which the track was straight for 375 feet and then again curved for about 1,615 feet. Two cars were regularly operated on the line which made the trip between the two cities in about thirty minutes. Car No. 11, in charge of one Holmes, was scheduled to leave Charleston for Mattoon at l :45 p. m., and car No. 12, which was appellee’s regular car, to leave Charleston at the same hour.

On the day in question appellee was relieved of his regular run and assigned to run an extra car, No. 18, to Urban Park for the accommodation of persons who desired to attend a baseball game which was to be played there that day. The usual time from Charleston to Jones switch was about twenty minutes, and from the latter station to Mattoon about ten minutes. Appellee was directed to meet No. 11 at Jones switch, but the crew in charge of No. 11 were not notified in any way of the running of the extra car nor were they given any orders or directions as to a meeting point. The extra car left Charleston from five to fifteen minutes after two o’clock. Upon the stretch of straight track, the extra car met and collided with No. 11 coming from the east.

Appellee testified that when he first saw No. 11 it was about 150 yards distant, coming around the east curve; that his car was running at about forty miles an hour; that he at once shut oft the power and applied the air brakes reducing the speed at the time of the collision to about seven or eight miles an hour. As the cars came together appellee jumped from his car and sustained the injuries complained of in the declaration.

The evidence further shows that the appellant company had no published rules governing the running and management of its cars other than a time table for the regular cars. That the superintendent had sole charge of the movement of trains and that he was in the habit of issuing orders, occasionally in writing, but frequently verbally, and at such times and places as suited his convenience, and that- there was no designated time or place at which orders were regularly issued or when and where employes were required to report for the samé. It was the manifest duty of appellant toward its employes to use reasonable care to so regulate the time and manner of running its .cars that those of its servants who were engaged in operating them would be informed as to times and places and manner where and in which the same should meet and -pass in order that collisions might be avoided. Darrigan v. Ry. Co., 52 Conn. 285; Sheehan v. Ry. Co., 91 N. Y. 332; Ry. Co. v. McLallen, 84 Ill. 109; R. R. Co. v. Mix, 121 Fed. Rep. 476. The failure of appellant to advise those in charge of No. 11 of the presence of the extra car upon the track and as to when and where it should meet and pass the same, clearly constituted a breach of such duty. The extraordinary hazard encountered by appellee was obviously not one incident to his employment. R. Co. v. Snedaker, 223 Ill. 395. He was expressly ordered to meet No. 11 at Jones switch. It was his duty to obey such order, and he had the right to assume that appellant, with its superior knowledge of the situation, would not expose him, his fellow-employes and the passengers upon the cars, to unnecessary peril, and to rest upon the assurance that there was no danger which is implied by such order. Whether with such knowledge as he may havé possessed as to the mode and manner of operating extra ears, in obeying the order he acted as an ordinarily prudent person would have under similar circumstances, affects the question of contributory negligence rather than that of assumed risk. Springfield B. & M. Co. v. Parks, 222 Ill. 355. The question of assumed risk was therefore not involved in the case, and appellee’s first instruction is not subject to the objection held to be well taken to a similar instruction in the case of Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243. Furthermore, appellant’s third and eighteenth are substantially of the same import and it is thus estopped to complain. R. Co. v. Ricker, 116 Ill. App. 434. Nor were appellee’s injuries the result in whole or in part of the negligence of a fellow-servant. The evidence does not disclose that Holmes was in any way negligent. The superintendent was clearly a vice-principal. The proximate cause of the accident was the negligence in the performance of a duty which cannot be delegated. Whether or not appellee was in the exercise of due care in obeying the order to take the car out, and at and prior to the time of the collision, was an issue to be determined by the jury. While the evidence as to the speed with which he was running and the manner he managed his car at the time and immediately prior to the collision, was to some extent conflicting, we think that the finding of the jury upon that issue was warranted.

We do not think that the damages awarded are excessive. There is evidence tending to show that at the time of the collision, plaintiff was thirty-three years of age, sound in health and limb, six feet' tall and weighed 298 pounds; that he received a wound in his forehead extending from the hair to the eye which left a scar; that his entire left side was bruised and skinned, his leg and ankle twisted and his foot jammed; that he suffered and still suffers much pain and is unable to walk without the aid of crutches; that a chronic tuberculosis condition, which may ultimately cause his death, exists in his foot, which the evidence tends to show was greatly aggravated by the injury received; that he is reduced in weight 115 pounds; that he has been unable to work since he was injured, and that prior thereto he earned $11 per week.

We are of opinion that the declaration sufficiently stated a cause of action and that the motion in arrest of judgment was properly overruled. The rulings of the court upon the instructions were substantially correct.

We have carefully considered the remaining grounds for reversal urged by appellant and are of opinion that the same are not well founded, and that the record is free of error that could have been prejudicial to appellant.

The abstract filed by appellant is not such as is contemplated by the rules of this court and the cost of the additional abstract furnished by appellee will be taxed to appellant.

The judgment of the Circuit Court should be and is affirmed.

Affirmed,


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    The F. B. Tait Manufacturing Company v. Samuel H. Tinsman.
    1. Employer and employe—what does not affect right to salary. An employe is entitled to leave the service of his employer if his salary is not paid when due and he may recover for the unexpired portion of his term of service the same as though he had been wrongfully discharged.
    2. Employer and employe—contract for “annual” salary construed. A contract for an “annual” salary of $1,800 per year is a contract for an annual salary of such amount, payable in monthly instalments, where the parties by their conduct have so construed the same.
    Assumpsit. Appeal from the County Court of Macon county; the Hon. Orpheus W. Smith, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    Buckingham & Gray, for appellant.
    Hutchinson & Adams, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit wherein appellee recovered a judgment against appellant for $693.07. The suit is predicated upon a written contract between the parties by the terms of which appellee was employed by the appellant company as a mechanic at an “annual salary” of $1,800 a year, for a period of three years from November 1, 1904, provided that any loss of time, by sickness or otherwise, should be deducted from said compensation. To establish his claim appellee introduced in evidence upon the trial, a statement designated as Exhibit B, which was prepared and rendered to him by the bookkeeper of appellant and in which he is credited with salary from November 1, 1904, to October 1, 1905, at the rate of $150 per month, together with sundry expenses paid by him on account of appellant, the total of such credit items being $1,873.92. He is charged with various items consisting of cash payments to him, coal and other merchandise furnished to him by appellant, amounting in all to $1,280.85, leaving a balance due to him according to such statement of $593.07. ■

In addition thereto, appellee claimed and the evidence tended to show that there was due to him as salary from October 1, 1905, to October 20, 1905, the day he quit the employment of appellant, the sum of $100. Again such demand appellant presented under the proper plea, an off-set or counter-claim in the sum of $865.85 for time alleged to have been lost by appellee and for materials furnished and labor rendered to appellee by certain other employes of appellant. The jury disallowed the counter-claim in toto and returned a verdict for the full amount of appellee’s claim. ,It is first contended by appellant that having contracted to work for it for the term of three years, appellee was bound to continue in its employ for that period, unless discharged or he quit the employment, for good cause, and that having abandoned the contract voluntarily and without cause, he was not entitled to recover anything on account of salary. The evidence does not warrant such contention. It clearly appears therefrom that appellee continued in the employment so long as he was paid his salary. If, as the jury undoubtedly found, appellant refused to pay him his salary when due, he was justified in quitting its employment and his rights to recover for services up to such time was not affected by his so doing.

It is also insisted that inasmuch as the contract provided for the payment of a gross sum of $1,800 as an annual salary, appellant was not entitled to recover any salary until the expiration of each successive year. Such contention is also unwarranted by the evidence.

It is manifest from the items of the statement Exhibit B, which is admitted by appellant in argument to be correct as to the items covered thereby, that the contract was construed by both parties as meaning that the salary was to be paid monthly in instalments of $150.

It is finally urged that the finding of the jury disallowing appellant’s counter-claim was unwarranted by the evidence. There is some evidence in the record tending to show that appellee, during his employment by appellant, at intervals was engaged in perfecting various agricultural implements which he had invented, and that occasionally he was assisted- by other employes of appellant.

By said counter-claim it is sought to charge him with the time devoted by him to such purpose and with the wages of the other employes for the time it is alleged they were engaged in assisting him. It appears from the evidence that the items of set-off in question had accrued, if at all, some time prior to the preparation and delivery to appellee of the statement marked Exhibit B, which purported to show fully and correctly the account between the parties up to October 5, 1905. Such items are not charged to appellee in said statement. It does not appear that they were charged to him upon the books of appellant until after he left its employment, nor that in the negotiations for settlement between him and the president of appellant immediately prior to the time he left, that any counterclaim was either presented or urged. From these facts, the jury was justified in believing that such claim was an afterthought.

Although the third instruction given at the request of appellee is faulty in construction, we are satisfied that appellant was not materially prejudiced thereby.

The judgment of the Circuit Court will be affirmed.

Affirmed.


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    James E. Whitesides v. Springfield Colliery Company.
    Peremptory instruction—when properly given. A peremptory instruction for the defendant is properly given where that aspect of the evidence most favorable to the plaintiff fails to disclose a right of recovery.
    Action in case for personal injuries. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    S. H. Cummins, for plaintiff in error.
    Brown, Wheeler, Brown & Hay, for defendant in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by James E. Whitesides against the Springfield Colliery Company to recover damages for personal injuries received by the plaintiff through the alleged negligence of said company.

At the close of the plaintiff’s evidence, the trial court directed a verdict for the defendant. Judgment was rendered upon the verdict so returned, to reverse which this writ is prosecuted by the plaintiff.

The declaration, in substance, avers that the defendant was possessed of a certain coal mine and had attached thereto a certain coal chute which was out of repair in that the frame work was loose and the timber therein old, rotten and insecure, so that the same was not reasonably safe for one to work therein, which condition the defendant well knew or by the exercise of due care could have known; that the plaintiff requested the defendant to erect a scaffold or furnish the necessary material with which to erect one for the purpose of tearing down the said chute, but that the defendant refused so to do, and ordered the plaintiff to get into the said chute and tear the same down; and that while he was working in said chute in obedience to said order of the defendant, and with all due care, the sheet iron lining suddenly gave way by reason of the rotten condition of the said chute and threw the plaintiff to the ground, injuring him, etc.

The evidence adduced by the plaintiff, together with all justifiable inferences to be drawn therefrom, discloses the following facts: The plaintiff, who was thirty-six years of age, had been following the trade of carpenter for about thirteen years prior to the time he was injured. For six months he had been employed by the defendant as a carpenter in and about its coal shafts. On the day before the accident the superintendent of the mine ordered him to take down and apart two coal chutes which stood upon uprights adjoining the coal shafts and were twenty feet in height from the ground, twelve feet long and about five feet wide. The sides above the floor being about three feet high. The floors of the chutes were lined with sheet iron which was spiked thereto. The chutes inclined from the shaft toward the ground at an angle of about thirty degrees, and were open at each end. At the lower end of each, which was about four feet from the ground, there were cross-caps bolted to the upright to prevent the sides from spreading. Before beginning work upon the chutes, the plaintiff told the superintendent that he did not like to take them down without first building scaffolds at the sides so that he and hi's assistants could work with safety, and requested that they be given lumber with which to build the same. The superintendent replied that there was no lumber at hand; that he thought they could safely go into the shaft and tear out the sheet iron lining of the floor if they were careful; he then directed plaintiff and those who were assisting him to first pry one-half of the sheet iron from the floor and then to use a block and tackle which was on hand, and see if they could not “yank” the rest of the iron off. Plaintiff and the other employes tore down one of the chutes, and on the following day started to remove the sheet iron lining from the floor of the other. As they loosened the iron they bent it away from them toward the lower end of the chute rolling it up so far as possible as they proceeded.

When they reached a point within about two feet of the lower end, they endeavored to use the block and tackle to “yank” off the rest of the lining. Being unable to do so because of the intervention of the cross-cap and the passage of cars they then tried to bend the loosened iron down so that it would go under the cross-cap. While they were so engaged the bottom of the chute by reason of the decayed condition of its timbers, gave way, throwing the plaintiff to the ground and injuring him. The evidence further shows that during the progress of the work the superintendent came to the chute on two occasions and told plaintiff to hurry up with the work, that he desired to use the lumber in the chute and was waiting for it.

We are. of opinion that the court properly directed a verdict for the defendant. Counsel for appellant concedes that if appellant had gone to work in the chute of his own volition and without order or direction from the superintended!, he would have thereby assumed the risk, but insists that inasmuch as the facts in evidence show that he was expressly directed by the superintendent to go into the chute and do the work he cannot be held to have assumed the risk. Such contention is unsound for the reason that it is obvious that the accident was not due to the mere fact that appellant went into the chute and undertook to tear it down. His injuries were the result of the method adopted by him in doing the work. Notwithstanding he was specifically directed to remove the lining at the lower end of the chute by the use of the blocks and tackle, he elected to ignore such express directions and voluntarily adopted a method manifestly more perilous. By so doing he assumed the risk of injury attendant thereupon. He was, as shown by his own testimony, of mature age, had had experience in wrecking chutes and fully understood the nature of the employment, which was obviously hazardous. The fact that he was prevented by the passage of cars and the intervention of the cross-caps from using the block and tackle did not excuse his disobedience of the specific directions of the superintendent. When he ascertained that the method directed was impracticable it was his duty to discontinue the work. The orders of the superintendent to “hurry up” which were given when the work was begun and again as they started to roll up the sheet-iron at the top of the chute did not serve to change, modify or effect the former one as to the method to be followed.

The aspect of the evidence most favorable to appellant fails to disclose a right of recovery and the trial court properly directed a verdict for the defendant.

The judgment thereon will be affirmed.

Affirmed.


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    Toledo, St. Louis & Western Railroad Company v. Milton Baker.

      Definition—“wilfulness.” “Wilfulness” is “An entire absence of care for the life, the person or the property of others, such as exhibits a conscious indifference to consequences.”
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Cbaig, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed.
    Opinion filed December 7, 1907.
    Charles A. Schmettau, George P. Greenhalgh and Steeley & Clements, for appellant; Clarence Brown, of counsel.
    S. M. Clark, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action by appellee against appellant for the recovery of damages for personal injuries. A trial by jury resulted in a verdict for $500 upon which judgment was rendered against the defendant. To reverse such judgment this appeal is prosecuted. The declaration charges that appellant, by its servants, while operating a train on its railroad at Ridgefarm, Illinois, invited appellee to assist in unloading certain boxes from a freight car in said train at the depot in said village, and that while appellee was assisting to lower said boxes from said car, and in the exercise of due care and caution for his own safety, a brakeman who was then and there in the employ of appellant wilfully and recklessly lowered a certain box upon appellee and injured him. The uncontroverted facts are substantially the following: Appellee, a drayman residing at Ridgefarm, was at appellant’s station when one of its local freight trains arrived there at about ten o’clock in the morning. The waycar of the train containing shipments for Ridgefarm was stopped on a road crossing with the door of the car just west of the depot platform. While the conductor and brakeman of the train were removing a box of merchandise from, the car, the box fell striking appellee and causing the injury charged in the declaration. Appellee testified upon the trial that after the train arrived the brakeman rolled a box to the door of the waycar and that the conductor then asked appellee to assist in unloading the box; that he and the conductor then lowered the same out of the car' to the ground; that he and the conductor then started to roll the box out of the way of the door when the brakeman shouted “look out” and before appellee could get out of the way, rolled another box out of the car which struck appellee upon one of his legs, and fractured the bone of the same. The brakeman testified that he was unaware of appellee’s presence in the vicinity until after the box had fallen.

As to whether or not appellee was requested by the conductor to assist in unloading the car and whether he was so assisting, the evidence is in conflict. Inasmuch however as counsel for appellee concedes in argument in this court that appellee was at the time he was injured a trespasser, the question becomes unimportant. It is obvious that to entitle appellee to recover under the averments of his declaration, it was essential that he establish by the greater weight of the evidence that the act of the brakeman in lowering the box upon him was wilful. Thompson in his Commentaries upon the Law of negligence (Vol. 1, § 22) says: “An entire absence of care for the life, the person or the property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness, such as charges the person whose duty it was to exercise care, with the consequences of a wilful injury.” I. C. R. R. Co. v. Leiner, 202 Ill. 624.

We are satisfied, from a full consideration of the evidence, that the jury was unwarranted in finding that the act of the brakeman was wilful within the meaning of the law. While he was perhaps negligent in rolling the box from the car, the evidence fails to show that there was such an entire want of care or unconscious indifference as to consequences as to indicate wilfulness. The testimony of appellee that before rolling the box out of the car, the brakeman warned those in the vicinity to “look out,” tends strongly to negative the idea that he intended that the box should strike appellee or that he was indifferent as to whether it did or not.

There is no evidence in the record other than appellee’s account of the occurrence, tending to show that the act was wilful, and that, we think, is manifestly insufficient. While the question is primarily one for the determination of the jury- we are impelled to hold that its finding in the present case was clearly unwarranted by the evidence. It therefore becomes our duty to reverse the judgment of the Circuit Court without remanding the cause.

Reversed.

Finding of fact, to be incorporated in the judgment of the court:

We find that the servants of appellant did not wilfully lower the box in question upon appellee as charged in the declaration.


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    Fred. S. Leach v. Clara E. Thompson.
    1. Mechanic’s lien—wliat does not release surety upon contractor's bond. A surety upon a contractor’s bond is not released by the act of the owner in failing to withhold payments due by virtue of the work performed and materials furnished by the contractor.
    2. Mechanic’s lien—when subcontractor cannot enforce. A subcontractor cannot enforce a lien against an owner if he is a surety upon a contractor’s bond and his obligation upon such bond is such as to render him liable to the owner for the payment of any lien claims not specified by the contract.
    Mechanic’s lien. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myeks, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    Owen T. Reeves and W. B. Leach, for appellant.
    Rayburn & Buck, for appellee.
   Mr. Justice Puterbaugh

delivered' the opinion of the court.

This is a bill by Leach, a subcontractor, to establish a mechanic’s lien upon certain premises in the village of McLean. Thompson, the owner, and Max-son, the principal contractor, were made parties defendant.

The bill avers and the evidence discloses that Thompson and Maxson entered into a written contract by the terms of which Maxson agreed to build for Thompson a dwelling house upon'the premises in question, for the sum of $3,000, payable as follows: $1,000 down; eighty-five per cent, of the value of labor and materials on the ground as the work progressed, upon demand of Maxson, and the balance upon completion of the contract work, provided that in no event was Thompson to pay more than $3,000 unless she should order extra work done. Maxson completed the building at a cost of not to exceed $2,500 including all claims of subcontractors. Leach, under a subcontract with Max-son, furnished labor and materials in and about said building to the extent of $418.35, and seeks by the present bill to establish a lien therefor against the premises. The answer of Thompson avers and the proof shows that about the date of the original contract, Maxson as principal, and Leach and several others as sureties, executed and delivered to Thompson a bond to secure the full and faithful performance of the contract on the part of Maxson and the payment by him of all liens against said premises for labor and materials. The chancellor upon the hearing of exceptions to the master’s report held that Leach was not entitled to the relief prayed, and dismissed the bill, whereupon Leach prayed this appeal. The evidence further shows that in addition to the first payment of $1,000 required by said contract, Thompson paid to Maxson, during the progress of the work, various sums aggregating on April 28, 1905, $2,725, upon which date there had been labor performed and was material upon the ground to the value of but $1,547.80. Upon the completion of the contract Max-son was paid the balance of the contract price in full. Appellant claims that he was released from liability by reason of the payments by Thompson, as the work progressed, of more than eighty-five per cent, of the value of labor performed and materials upon the ground at the date of such payments. He contends that by the terms of his obligation his liability was contingent upon the strict compliance by Thompson with the terms of the contract limiting the extent of payments to be made to Maxson thereunder during the progress of the work, and that by reason of the violation by Thompson of such provision of the contract, he became discharged from all liability.

A similar defense was interposed by a surety, who was also a subcontractor, in Central Lumber Co. v. Kelter, 201 Ill. 503. It was there - urged that if the owners had strictly complied with the terms of the builders’ contract as to payments, and had withheld the specified percentage of the contract price, they could have protected themselves against loss without resorting to the bond, and that they owed it to the security to do so. Referring to such contention, the court says-: “That, we think, is hardly a fair construction of the bond and contract. It would render the bond wholly unnecessary and of little or no benefit to the plaintiff. If they were bound to protect themselves against loss occasioned by Rafferty’s failure to perform the contract, by withholding payments, then the security conditioned for his faithful performance would avail nothing.”

The views so expressed are clearly applicable to and decisive of the present case. The decree of the Circuit Court is in accordance therewith and is affirmed.

Affirmed.


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    John W. Boys et al. v. Bernhard Milling Company.
    1. Continuance—when action of court in denying motion for, not open to review. The action of the court in denying a motion for a continuance is not open to review where the motion for continuance and the affidavit filed in support thereof and the ruling of the court thereon are not incorporated in the bill of exceptions.
    2. Evidence—when admission of erroneous, will not reverse. The admission of erroneous evidence will not reverse where the verdict is amply sustained by competent evidence in the record.
    3. Instructions—when inaccuracies will not reverse. Erroneous instructions will not reverse where the verdict is amply sustained by competent evidence contained in the record.
    Assumpsit. Appeal from the County Court of Shelby county; the Hon. Galvin Green, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    W. H. Chew, W. H. Ragan and F. E. Latch, for appellants.
    D. A. Milligan, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a judgment for $58.50 rendered by the County Court in favor of Bernhard Milling Co., and against J. A. Montgomery, John W. Boys and James M. Boys as co-partners. To reverse said judgment as to them this appeal is prosecuted by John W. Boys and James M. Boys who deny the existence of such partnership. The principal ground urged for reversal is the refusal of the trial court to grant a continuance of the cause upon the motion of appellants.

Neither the motion for continuance nor the affidavits filed in support of the same, nor the ruling of the court thereon, is incorporated in the bill of exceptions, and we are therefore precluded from considering the alleged error. St. L. Ry. Co. v. Union Bank, 209 Ill. 457; Lane v. City of Springfield, 120 Ill. App. 5.

It is also urged that the trial court erred in its rulings upon the evidence and instructions. No evidence was introduced by nor instructions offered in behalf of the defendants. While the record contains some incompetent evidence, there is ample competent evidence to sustain the. verdict. The instructions are subject to criticism but in view of the fact that the evidence so clearly shows a right of recovery, the inaccuracies in question could not have affected the verdict. Moreover, no objections or exceptions were made or taken to any rulings of the court upon either the evidence or instructions, and properly shown by the record.

The judgment is affirmed.

Affirmed.


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    George A. Huff, Administrator, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company.
    1. Variance—when objection for, comes too late. An objection for variance comes too late when first made on appeal.
    2. Passenger and carrier—duty of former to latter. A carrier is required to do all that human care, vigilance and foresight can reasonably do, consistent with the character and mode of conveyance adopted, and the practical operation of its road, to prevent accidents to passengers riding upon its trains.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Champaign county; the Hon. Solon Phil-brick, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed December 7, 1907.

      Ray & Dobbins and W. B. Riley, for appellant.
    George W. Gere and Henry I. Green, for appellee; Hamlin & Gillespie and L. J. Hackney, of counsel.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This cause is before this court for the second time. Upon the former appeal a judgment in favor of the plaintiff was reversed and the cause remanded for the reason that the trial court at the conclusion of the plaintiff’s evidence, upon motion of the defendants, instructed the jury to find the defendants guilty but improperly further instructed them to assess nominal damages only. The nature of the pleadings is sufficiently stated in the former opinion of this court which is reported under the title of Huff v. P. & E. Ry. Co., in 127 Ill. App. 242.

Upon remandment the suit was dismissed as to the Peoria & Eastern Bailway Company and a second trial had by jury which resulted in a verdict in favor of appellee. The evidence established beyond question that appellant’s intestate, on January 9, 1905, became a passenger for hire upon one of appellee’s passenger trains for the purpose of being carried from Peoria to Champaign; that the coach in which he was riding became derailed and overturned thereby causing his death, and that he was at the time in the exercise of due care. In this state of the proof, under the doctrine res ipsa loquitur, the legal presumption arose that the accident was due to the negligence of the carrier and it devolved upon the defendant to explain or account for the accident, and to prove that it resulted from a cause for which the defendant should not be held responsible. Ry. Co. v. Blumenthal, 160 Ill. 40; R. Co. v. Reynolds, 88 Ill. 418; I. C. R. R. Co. v. Rothschild, 134 Ill. App. 504; Ry. Co. v. Barker, 209 Ill. 329. In addition to the foregoing facts appellant sought to prove, under the general charge of negligence in the declaration, and as a part of his case in chief, that the track east and west of the point where the accident occurred was rough and out of repair; that the ties under the track were rotten and the rails insecurely fastened thereto; and that a frog which connected the main track with a side track was defective, and that the accident was due to one or more of such conditions.

For this purpose several witnesses were called to show the condition of the frog, track and rails, and other surroundings near the point of derailment, as they had observed the same from three to twelve days after the accident. The court refused to admit such evidence or to permit appellant to show further that the same conditions and surroundings existed at the time of the accident. It is contended by appellant that in this respect the court erred, while appellee insists that the rulings of the court were proper for the reasons that the averments of the declaration were not sufficiently broad to justify its admission; that there was a failure to prove that the surrounding conditions were the same, as at the time of the accident; that the meteorical conditions were materially different; that the proof shows that there was nothing unusual in the running of the train prior to the instant of the derailment and that therefore the condition of the track over which it had passed was immaterial, and lastly that the proof shows that thereafter there was a decided change in the character of the track át the point of the accident and entirely new conditions existed and that for that reason the evidence was immaterial.

As to the first reason assigned, it will suffice to say that as no specific objection to the evidence on the ground of variance was interposed, the question is'not now before this court. R. Co. v. Harwood, 90 Ill. 426; Hinton v. Ring, 111 Ill. App. 369; Ry. Co. v. McClain, 211 Ill. 589.

In Ry. Co. v. Southworth, 135 Ill. 253, the declara: tion, as in the case at bar, charged general negligence in the care of the track and the running of the train. The wreck there involved' occurred March 11, 1887. Two witnesses testified that they assisted in repairing the track of the defendant at and near the place of the accident during the months of August and September, 1887; that they took out ties that were rotten and rails that were battered; that some of the ties were too small and some of the rails very short; and that the road-bed was not ballasted. In referring to such testimony the court said: “It is insisted that this' evidence was incompetent because it was confined to a time long after the injury and because it is not limited to the place of the accident. Plaintiff’s case does not proceed upon the theory that he was injured by reason of a defect in the track or road at the very place where the car in which he was riding was wrecked, but because of the rapid running of the train over an imperfect track. It was therefore competent for him to show the condition of the track over which the train had to pass before reaching the point where the derailment occurred. The other objection to the competency of this evidence is of more force, but we think in view of the allegations of the declaration and other evidence introduced by plaintiff, it was not error to admit it. The proof tended to show that the road-bed and track remained in about the same condition from the date of the accident during the summer of 1887 to the time of which these witnesses speak. While as a general rule evidence of defects in the track so long after the injury would not be admissible, yet being connected with other proof showing that the condition remained substantially the same, it becomes competent. * * * Proof that the road-bed was too narrow and not ballasted, that ties were too small and the rails too short or light in August or September, would tend very strongly to show that the same things existed the previous March.”

In R. R. Co. v. Lewis, 145 Ill. 78, a witness was permitted to testify as to the condition of ties which he found shortly after the accident piled along the side of the track where it was apparent that part of the old ties had been removed after the accident and new ties put in their place. The court there said: “We are of opinion that his examination of the ties being recently after the accident and at the place of derailment, was competent testimony when it was offered, to go to the jury to be considered for what it was worth by them as tending" to establish the condition of the ties at the time of the injury to appellee.”

Thompson on Negligence (Yol. 6, § 7831) lays down the rule in the following language: “Testimony of the witness as to his examination of the ties made after the accident and at the place of derailment, and their condition at that time, is competent, where offered for the sole purpose of establishing their condition at the time of the injury. ’ ’

In McCulloch v. Dobson, 133 N. Y. 114, the condition of machinery in a mill at a particular date was involved. It was there held that evidence of the condition of machinery at a particular date is competent ordinarily to show what its condition was shortly before. That it is not necessary that the witnesses should have seen the machinery at or before the time when its condition is to be ascertained, and the fact that they did not examine or see the machinery at the very day, nor till some days or even months subsequent to the time in question, may affect the value but ordinarily not the competency of the testimony.

In City of Bloomington v. Osterle, 139 Ill. 120, the court held that in a suit against a city for an injury received from a defective sidewalk, where the defect in the walk was alleged to be that the stringers were rotten and decayed, so as not to hold the nails fastening the board to them, such allegation may be supported by proving the condition of the walk within a reasonable time after the accident.

Appellant voluntarily assumed the burden not cast upon him by law, of attempting to show in the first instance the exact negligence which he claimed caused the derailment. This he had the right to do, and in view of the foregoing and other authorities, we think the evidence in question was competent for such purpose.

The law in regard to the degree of care required of appellee in the operation of its railroad is incorrectly stated in several of the instructions given in behalf of appellee. The fourteenth told the jury that even though the defendant “had been negligent in some particulars in the maintenance of its railroad track east and west of the place in question where the car was derailed, still if the track was in reasonably such safe repair and condition” etc., their verdict should he for the defendant. The fifth in effect told the jury that the defendant was required to exercise reasonable foresight only to keep its tracks and roadbed in safe condition. These instructions should not have been given. It is not the law that railroad companies are bound to use a reasonable degree of care only, or that they are required merely to keep their tracks in reasonably safe repair. They are required to do all that human care, vigilance and foresight can reasonably do, consistent with the character and mode of conveyance adopted, -and the practical operation of their railroads, to prevent accidents to passengers riding upon their trains. The second and third instructions are misleading in that they informed the jury that at certain stages of the proof “the burden shifts” without stating upon whom it rested in the first instance or to whom it afterwards shifted.

Other instructions were given which are subject to more or less criticism as being inaccurate and misleading, of which time and space forbid specific discussion. The contention that in no event could a verdict for the defendant be sustained because it requested and submitted to a former verdict against it for nominal damages, is without merit. Appellee was not in any way bound or estopped by the former judgment which was reversed and became ineffective for any purpose.

For the errors indicated the judgment must be reversed and the cause reminded.

Reversed and remanded.


text:
    Chicago, Burlington & Quincy Railroad Company v. Sarah C. Sample, Administratrix.
    1. Railroads—statute requiring construction and maintenance of crossings and, approaches construed. The words of the statute in question, “crossing and approaches thereto,” include the surface occupied by such portion of the railroad track as is within the boundaries of the street, together with such additional surface as is occupied by embankments, bridges, grades or structures of any sort on each side of the railroad track which serve as the passage or way for approaching the crossing.
    2. Crossings—how may be used by pedestrian. When once within the boundaries of a railroad crossing a person has the right to travel thereon in any direction, lengthwise, crosswise or otherwise, and without regard to the place or direction from or in which he may have approached and entered upon such street, or whether or not he was a trespasser immediately prior to going upon the street.
    3. Crossing—when use of, not contributory negligence as a matter of law. It is not contributory negligence as a matter of law for one familiar with the conditions and dangers of a railroad crossing to undertake to use the same. The question of contributory negligence in such case is one for the jury.
    4. Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review on the ground that it is against the weight of the evidence, unless clearly and manifestly so.
    5. Verdict—uohen not excessive. A verdict, reduced by remittitur to $3,500, in an action for death caused by wrongful act, is not excessive where it appears that the plaintiff’s intestate was at the time of his death sixty-five years of age, earned as a teamster from $3.50 to $4 per day, and left him surviving a widow.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of Litchfield; the Hon. Paul McWilliams, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.

      Creighton & Gasaway, for appellant; Chester M. Dawes, of counsel.
    Harry Stuttle, L. V. Hill and Amos Oller, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by appellee, as administratrix of the estate of her deceased husband, Henry L. Sample, against appellant, for the recovery of damages for wrongfully and negligently causing the death of the said Henry L. Sample. A trial by jury resulted in a verdict in favor of the plaintiff for $5,000, of which she remitted $1,500, and judgment was thereupon rendered against the defendant for $3,500.

At the close of the plaintiff’s evidence, and again at the close of all the evidence, motions to instruct-a verdict for the defendant were interposed and overruled.

The first three counts of the declaration aver, in substance, that the defendant had theretofore constructed a certain switch track across Cummings street in the city of Litchfield, leading into the yards of the glass works of Finley & Sehonfeld; that it was the duty of the defendant to construct said crossing so that it would at all times be safe to persons and property, to restore said street to such state as not unnecessarily to impair its usefulness, and to keep said crossing in good and sufficient repair; that the defendant negligently permitted said crossing to remain in bad repair, and permitted large holes to remain on either side at the point where said tracks intersected with said Cummings street within the right of way of the defendant; that while the deceased was in the act of driving over and across said crossing, and in the exercise of due care, one of the wheels of his wagon ran into said hole, whereby he was thrown from the wagon and received injuries from which he afterward died. The fourth count sets out and charges the violation of section 8 of the statute relating to the fencing and operation of railroads, which reads as follows: “Hereafter at all of the railroad crossings of highways and streets in this state, the several railroad corporations in this state shall construct and maintain said cross- • ings and approaches thereto within their respective rights of way so that at all times they shall be safe as to persons and property.” Rev. Stat. 1905, 1578. In other respects the count is substantially similar to the other counts. The defendant pleaded the general issue.

While a number of facts involved are controverted, there is evidence tending to show the following: The defendant had, prior to the accident in question, constructed a switch track running north and south across Cummings street and into the yards of the glass works a short distance' south of the street. On the day of the accident the deceased, a teamster, aged sixty-five years, had loaded his wagon with cinders in the yards of the glass works, and standing on his wagon thus loaded, drove northeasterly on the switch track to Cummings street until he reached the crossing at the traveled part of the street, when he attempted to turn the team east on the crossing. While so doing, the wheels of the wagon dropped into a “chug” hole or depression at least three feet long, eighteen inches deep and two feet wide, on the east side of the east rail at the south end of the crossing. The jolt of the wagon caused the deceased to lose his balance and to fall from the wagon, whereby he sustained injuries from which he afterward died. The horses and front wheels had at the time reached the crossing and the rear wheels were a few feet south thereof. The evidence further tends to show that the direction of the traveled part of the street at the crossing was east and west; that the crossing was composed of plank and cinders and was sixteen feet wide; that there was no traveled part of the street north and south, nor any traveled road leading to and from the glass works in the direction taken by Sample, but that the usual route traveled in hauling from the glass works was to go northwest a short distance and thence to Cummings street, thus avoiding the switch track; and that on the east side of the switch track the ground sloped to the east; that Sample lived near the crossing, had frequently used the same and was familiar with its condition and surroundings. The evidence further shows that appellant had been several times notified by the street commissioners of the city to repair the street at the place in question.

If the jury believed the testimony of the plaintiff’s witnesses, they were warranted in finding that the defendant had failed to comply with the statute as charged in the declaration, and that the plaintiff was injured by reason thereof. We,cannot say that such conclusion was manifestly against the evidence and are therefore not at liberty to interfere therewith. We regard the fact that the plaintiff, prior to the accident, was not traveling in a direction parallel with the street, immaterial as affecting the question of the defendant’s negligence in failing to keep in repair the crossing and approaches thereto. The words of the statute, “crossing and approaches thereto,” include the surface occupied by such portion of the railroad track as is within the boundaries of the street, together with such additional surface as is occupied by emban.lrm.ents, bridges, grades or structures of any sort on each side of the railroad track, which serve as the passage or way for approaching the crossing. City v. I. C. R. R. Co., 154 Ill. 539.

When once within such boundaries, a person has the right to travel thereon in any direction, lengthwise, crosswise or in any other way and without regard to the place or direction from or in which he may have approached and entered upon such street, or whether or not he was a trespasser immediately prior to going upon the street. McGuire v. R. R. Co., 120 Ill. App. 112. In this view of the law, there was no variance between the allegations of the declaration and the proofs, as contended by appellant.

It is complained that on the trial the court permitted the plaintiff, over objection, to prove by a number of witnesses that the crossing was repaired after the accident. Prior to the introduction of the evidence complained of, upon the cross-examination of George Mc-Phail, counsel for appellant exhibited to the jury and offered in evidence a photograph taken some time after the accident, with the statement that they would prove later that such photograph represented the true condition and surroundings of the crossing on the day of the accident. The evidence complained of, while incompetent for the purpose of showing that the crossing had been repaired (Howe v. Medaris, 183 Ill. 288). was therefore competent as tending to show that the photograph did not in fact correctly show the situation at the time in question.

It is urged that because the deceased lived in the vicinity of the crossing and had previously traveled over the same, he must have been familiar with its condition and the attendant dangers, and that by attempting to cross over the same with such knowledge he was guilty of contributory negligence as a matter of law. While such knowledge was proper to be considered by the jury in determining the question, it was not, of itself, sufficient to establish contributory negligence. Notwithstanding its defective and dangerous condition, the deceased still had the right to use the crossing, and if in doing so he used the requisite degree of care, was he entitled to recover for any injuries sustained by reason of such defect. Whether he did exercise due care, was a question for the jury under proper instructions of the court. We are unable to say that their finding upon that question was so manifestly contrary to the evidence asxto require a reversal of the judgment.

It is claimed that the judgment is excessive. The proof shows that although the deceased was sixty-five years of age, Ms earnings as a teamster were from $3.50 to $4 per day. While the damages awarded by the verdict were undoubtedly excessive when the age of the deceased is considered, there is nothing in the record indicating that the jury were influenced by passion or prejudice. The amount of the judgment after remittitur cannot be said to be clearly excessive. The record is free from prejudicial error and the judgment warranted by the law and the evidence.

Affirmed.


text:
    J. R. Thickson et al. v. J. P. Barry et al.
    1. Parties—who necessary, to dill in chancery. In courts of equity all persons who have any substantial legal or beneficial interest in the subject-matter of the litigation, and who are to be materially affected by the decree which may be rendered, should be made parties. This rule is inflexible, yielding only when the parties are very numerous and so scattered that their names or residence cannot be ascertained without great and extraordinary difficulty, and it is impracticable to bring them all before the court; or where the question is one of common or general interest, one or more may sue or defend for the whole, or where parties form a voluntary association for public or private purposes and those who sue or defend may be fairly presumed to represent the rights and interests of the whole.
    2. Partnership—who necessary parties to dill for dissolution. A bill for the dissolution of a partnership, for accounting, etc., must name all of the partners as parties.
    Bill in chancery. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    Savage & Woods, for appellants.
    F. M. and H. I. Green, for appellees.
   Mr. Justice Puterbaugh

delivered the opmion of the court.

TMs appeal Mvolves the legal sufficiency of a bill in chancery filed by appellants against appellees. The chancellor sustained a general demurrer thereto and upon the complainants electing to abide by their bill, dismissed the same.

The bill, after reciting that it is filed by appellants, Thickson, Craig and Crawford, for themselves and others similarly situated, avers that complainants and numerous other farmers entered into an oral agreement with one J. P. Barry to form a co-partnership to be known as the Philo-Fairlands Telephone Company, for the purpose of erecting and maintaining a telephone system connecting the farms of the co-partners with each other and with the villages of Philo and Fairlands; that it was agreed that each of said co-partners should bear his proportionate share of the cost of erecting and equipping such system and purchase at his own expense a telephone for his own use, and that in lieu of rental each should bear a proportionate share of the expense of maintaining and operating the system, and that it was agreed by Barry that if the co-partnership would place the switchboard at his residence he would operate the same and make no charge for such services.

The bill further avers that, relying upon said agreement and pursuant thereto, the complainant and the other parties to said agreement purchased and installed sufficient necessary equipment for the operation of 142 telephones, each contributing his pro rata share of the cost of the same. That Barry was elected by said co-partnership as manager of the system for the term of two years and without compensation, and that there were also elected certain auditors, who were to act with Barry in the management, and to apportion the cost of maintaining and operating the system, the said auditors being the same persons who, together with the said Barry, were made parties defendant to the bill. That Barry and the said auditors from time to time apportioned and collected assessments under said agreement, but failed to render any statement of the same until July 8, 1907, when, in response to the demand of a large number of the co-partners, Barry published a statement, which was made with the consent and approval of the auditors, in which Barry was credited with the sum of $100 for two years ’ service in operating the switchboard of the system, and which statement was in other respects incorrect and untrue. That in January, 1906, Barry and the said auditors formed a corporation under the laws of the State of Illinois, under the name of the Philo-Fairlands Telephone Company, and, conniving together and without the consent of complainants or the numerous other co-partners, appropriated or attempted to appropriate the said telephone system. That in November, 1906, the complainants each received from said corporation a notice that he was not a member of said company and that the management had fixed the cost of his service at $15 per year, and that those owning telephones would be charged $1.50 per month, but that those receiving such notice might become members of the incorporated company by subscribing for stock to the amount of $20. That on November 21,1906, bills were sent to each of the complainants for telephone service from June 1, 1906, to June 1, 1907, together with a notice that if the bill was not paid within thirty days service would be cut out. That the defendants had brought suit against one of the said co-partners who had refused to subscribe for stock in the incorporated company, and that complainants were informed and believed that like suits would be instituted against complainants and .all other of the co-partners who refused to donate their interests in the system to the corporation.

That the co-partnership in question was not formed for profit but simply to furnish telephone service to each co-partner who should pay his proportionate cost of constructing, operating and maintaining the system, and that Barry was chosen manager and the other defendants auditors for the sole purpose of conducting the business of the co-partnership on such basis. That Barry refuses to make a full and fair statement of the receipts and expenditures of said co-partnership business, but with the consent of the other defendants, has presented an unfair and incorrect statement thereof. That he has caused to be connected with the co-partnership lines a large number of telephones from which he has received rentals, and that with the consent of the other defendants, has collected from the co-partners several hundred dollars in excess of the expenses of operating said system, for all of which he should account to the co-partnership.

The record recites that the demurrer to the bill was sustained for the reason that it appeared upon the face of the bill that certain necessary parties had not been made defendants thereto. In courts of equity all persons who have any substantial legal or beneficial interest in the subject-matter of the litigation, and who are to be materially affected by the decree which may be rendered, should be made parties. This rule is inflexible, yielding only when the parties are very numerous, and so scattered that their names or residence cannot be ascertained without great and extraordinary difficulty, and it is impracticable to bring them all before the court (Prentice v. Kimball, 19 Ill. 319; Willis v. Henderson, 4 Scam. 14; Whitney v. Mayo, 15 Ill. 252). Or where the question is one of common or general interest one or more may sue or defend for the whole, or where parties form a voluntary association for public or private purpose and those who sue or defend may be fairly presumed to represent the rights and interests of the whole. Story’s Eq. Pldgs., No. 97.

It is insisted by counsel for appellants that the present suit falls within the exceptions mentioned. We do not think so. It is manifest that the subject-matter of the controversy is not of common or public interest nor a voluntary, association for public or private purposes, whereby it may fairly be presumed that the rights and interests of all concerned will be represented by any or all of the parties to the bill. On the contrary the organization is specifically alleged to be a co-partnership for the conduct of a private enterprise. While the bill states that the parties interested are numerous, it is not averred that they are so scattered that their names or residences cannot be ascertained without great and extraordinary difficulty, nor are facts stated from which such inference can be drawn. Construing the averments of the bill most strongly against the pleader, it does appear that all parties in interest live within the territory included within and adjacent to the villages named, and it may fairly be presumed that the name and residence of each of the partners could be readily obtained.

The bill prays, among other things, that the co-partnership be dissolved, the partnership property sold, and that the proceeds thereof be distributed among the respective partners. To warrant such relief it was essential that all of the partners should have been made parties to the bill. Derby v. Gage, 38 Ill. 28; Rosentiel v. Gray, 112 Ill. 283.

It is further sought to render void any title or interest the incorporated company might claim in and to the telephone properties in controversy and to require such company to restore the same to the partnership. It is manifest that any rights of the corporation could not be affected unless it was a party to the bill.

While it may be true that complainants and their co-partners are entitled to an accounting by Barry to obtain such relief, it was necessary that all of the co-partners should be made parties, either complainant or defendant. Derby v. Gage, 38 Ill. 27. Were it otherwise a series of similar proceedings to that at bar concerning the same subject-matter might follow and litigation thus be multiplied and prolonged. It is clear that the rights of the co-partners who are not parties to the present bill-would to no extent be settled or adjudicated by any decree thereunder. “It is the great object of courts of equity to put an end to litigation; and to settle, if possible, in a single suit, the rights of all parties interested or affected by the subject-matter in controversy.” 2 Story’s Eq. Jur. sec. 1526. Counsel for appellant say that “it is possible that in order to get all of the relief specifically prayed for in the bill, additional parties might be necessary” and urge that they are entitled “to such relief as is consistent with the facts stated in the bill, although not specifically prayed for.” We are unable to perceive any other or different relief than that specifically asked, to which appellants would be entitled, and none such has been indicated in argument.

We are of opinion that the demurrer to the bill was properly sustained, and the decree dismissing the bill will accordingly be affirmed.

Decree affirmed.


text:
    T. H. Scott v. S. W. Wright, Administrator.
    1. Evidence&emdash;when error in admitting, not cured By exclusion. Where prejudice is likely to have resulted, the action of the court in excluding evidence erroneously admitted will not prevent a reversal.
    2. Evidence&emdash;what not competent upon value of services rendered. Where the question is as to the value of services rendered, evidence of what has been paid or is being paid for the rendition of the same or similar services is not material.
    3. Administbation of estates-&emdash;scrutiny of claims presented. A claim presented against an estate of a deceased person is subject to no more scrutiny than such claim would be subjected to if it had been made the basis of a suit during the lifetime of the alleged debtor.
    Contested claim in court of probate. Appeal from the Circuit Court of Moultrie county; the Hon. William G. Cochean, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed December 7, 1907.
    Rehearing denied December 20, 1907.
    E. J. Miller, for appellant.

      John E. Jennings and W. K. Whitfield, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

T. H. Scott, the appellant, filed in the County Court a claim against the estate of A. J. Patterson, deceased, of which appellee is administrator, for the sum of $2,118.52. The county judge allowed the claim in the sum of $1,427.16. The administrator appealed to the Circuit Court where the cause was tried by jury, resulting in a judgment allowing the claim in the sum of $122.57, from which Scott now appeals. The evidence shows that the deceased, A. J. Patterson, held the office of county treasurer of Moultrie county for the term of four years from December, 1898; that during that period Scott acted as deputy treasurer by appointment of Patterson; that during the time Patterson paid to Scott -various sums of money on account of salary, and that Scott frequently took cash from the treasury or drew checks in his own favor upon Patterson’s bank account. So far as the record shows no agreement existed between the parties as to the amount of compensation Scott was to receive for-his services, and in this action he seeks to recover what the same were reasonably worth.

While there is some controversy as to the total amount of the payments to Scott, the main issue upon the trial was as to the reasonable value of his services.

The opinions of the witnesses called upon the ques-. tion varied greatly, those called by Scott fixing the amount at from $800 to $2,000 per annum, and those called by appellee, at $600 per annum. A review of the evidence indicates that the jury fixed the value of his services at about $40 per month, being less than the minimum amount. Upon th,e trial Percy Patterson, a brother of the deceased, was permitted to testify over objections, that he heard Mrs. Scott, the wife of the claimant, state in a conversation that her husband was receiving as salary only $50 a month. It did not appear that Scott took any part in such conversation or that he heard what was said. Notwithstanding the court upon motion excluded such testimony from the jury, it is probable that the jury were influenced by it. Upon the cross-examination of the witness Martin, he was allowed to state, over objection, that the salary of the then deputy county treasurer was but $40 per month. This was obvious error. Such fact was utterly immaterial to the issues involved and doubtless harmful to appellant. It was also serious error to tell the jury, as was done by appellee’s eleventh instruction, that where a claim is not presented until after the death of the alleged debtor, it should be carefully scrutinized. Such is not the law. A claim against the estate of a deceased person stands upon the same basis as any other. Farrow v. Flatt, 61 Ill. App. 120. In view of the wide range of opinion as to the reasonable value of appellant’s services, we are impelled to hold that the errors indicated were sufficiently prejudicial to require a reversal of the judgment of the Circuit Court and the remandment of the cause for another trial.

Reversed and remanded.