text:
    William Mida v. Soloman Geissmann.
    1. Warehouse receipts—Liability oe seller.—A party buying warehouse receipts of whisky stored in the distillery warehouse, and holding the same without presenting them or demanding the whisky upon them for nearly a year, when the distillery company failed, can not hold the agent who sold him the warehouse 'receipts liable for the loss without proof of fraud, or express warranty by such agent in malting the sale and transfer of such warehouse receipts; and this conclusion is unaffected by the circumstance that the agent indorsed the receipts in blank to the purchaser.
    2. Same—Indorsement.—An indorsement in blank of a warehouse receipt by the seller, authorizes the purchaser to writs over such blank indorsement only a contract of mere assignment of the legal title, unlike the case of a negotiable promissory note or bill of exchange.

      3. Evidence.—A question which assumes a fact which is in dispute in the trial, and which has not been proved, is objectionable, and its admission will be error.
    4. Custom orusaoe.—It is competent to prove a custom or usage of a trade well known to all dealing therein, where it .contravenes no provision of an express contract.
    Error to the County Court of Cook county; the Hon. Richard Prehdergast, Judge, presiding.
    Opinion filed November 25, 1885.
    Messrs. Kraus & Mater, for plaintiff in error;
    as to agency, cited Wharton on Agency, § 735; Baring v. Corrie, 2 Barn. & Ald. 137, 143; Bisbee’s Law of Produce Exchange, § 101; Edwards on Brokers and Factors, § 1; Braun v. City of Chicago, 110 Ill. 187, 194; Saladin v. Mitchell, 45 Ill. 79; Debolt v. Chase, 2 Gilm. 371; Warren v. Dickson, 27 Ill. 115; Marckle v. Haskins, 27 Ill. 382; Wheeler v. Reed, 36 Ill. 81; Millikin v. Jones, 77 Ill. 372; Wright v. Cabot, 89 N. Y. 570.
    A warehouse receipt is not a negotiable instrument, and an innocent holder or indorsee does not occupy the position of one taking a promissory note before due : 1 Canadian Bank v. McCrea, 106 Ill. 281; Burton v. Curyea, 40 Ill. 320; Western Hnion R. R. Co. v. Wagner, 65 Ill. 197; Chicago Dock Co. v. Foster, 48 Ill. 507; Shaw v. Railroad Co., 101 U. S. 507; Sargent v. Central Warehouse Co., 15 Bradwell, 553; Jones on Pledges, § 281; Cochran v. Ripy, 13 Bush, 495; First Nat. Bank v. Boyce, 78 Ky. 42.
    The delay had the effect to discharge Mida as indorser: Stewart v. Smith, 28 Ill. 397, 409; Colebrooke on Collateral Securities, § 412; Sargent v. Central Warehouse Co., 15 Bradwell, 553.
    Hpon the indorsement and delivery of the warehouse receipts, the Anderson Distilling Company warehouse became a bailee for Geissmann, and all relation to Mida ceased: Newcomb v. Cabell, 10 Bush, 460; Gibson v. Stevens, 8 How. 384; Sargent v. Central Warehouse Co., 15 Bradwell, 552; Burton v. Curyea, 40 Ill. 320; McPherson v. Gale, 40 Ill. 368; Chicago Dock Co. v. Foster, 48 Ill. 507; Broadwell v. Howard, 77 Ill. 305; Bailey v. Bensley, 87 Ill. 556; German National Bank v. Meadowcroft, 95 Ill. 124; Colebrooke on Collateral Securities, Sec. 412, et seq. ; Jones on Pledges, Sec. 280.
    Tlie delivery of a warehouse receipt is a good symbolic delivery ; it forms a good delivery in the performance, so as to defeat any action by the buyer against the vendor for non-delivery of the goods : Benjamin on Sales, Sec. 697; Canadian Bank v. McCrea, 106 Ill. 281; Newcomb v. Cabell, 10 Bush, 460; Burton v. Curyea, 40 Ill. 320; Salter v. Wollams, 2 M. & G. 650; Wood v. Manley, 11 Ad. & E. 34; Shaw v. Railroad Co., 101 U. S. 507; Smith’s Leading Cases, Vol. 1, Pt. 2, p. 1223 (8th Am. Ed.), note to Lickbarrow v. Mason; Jones on Pledges, Secs. 280, 281.
    The remedy of Geissmann is against the warehouseman or the assets in the hands of -his assignee, who, by the issuance of the receipt, is estopped from denying its validity or his liability to surrender or turn over to the holder the property called for therein: Ferguson v. Northern Bank, 14 Bush, 555; Griswold v. Haven, 25 N. Y. 595; Bigelow on Estoppel, 3d Ed. 474; Jones on Pledges, Sec. 310, 311; Colebrook on Collateral Securities, Sec. 416; Newcomb v. Cabell, 10 Bush, 460, 473; McNeil v. Hill, 1 Woolw. 96.
    As to evidence of usage or custom: Cothran v. Ellis, 107 Ill. 413; Sweet v. Leach, 6 Bradwell, 212; Bailey v. Bensley, 87 Ill. 556; Chicago Packing and Provision Co. v. Tilton, 87 Ill. 547; Munn v. Burch, 25 Ill. 35; Oldershaw v. Knowles, 4 Bradwell, 63; Lonergan v. Stewart, 55 Ill. 44; Dyer v. Sutherland, 75 Ill. 583; Doane v. Dunham, 79 Ill. 131.
    Instructions which assume to make a statement of what is necessary to entitle a party to a verdict, and ignore other evidence tending to "prove a fact which would not entitle the party to a verdict, are erroneous: St. L. A. & T. H. R. R. Co. v. Pflugmacher, 9 Bradwell, 300; St. Louis & S. E. Ry. Co. v. Britz, 72 Ill. 257; Hartley v. Lybarger, 3 Bradwell, 524; Ogden v. Kirby, 79 Ill. 555; Cushman v. Cogswell, 86 Ill. 62; Protection Life Ins. Co. v. Dill, 91 Ill. 174; Chicago P. & P. Co. v. Tilton, 87 Ill. 547.

      Mr. Perry A. Hull, for defendant in error.
   McAllister, J.

This was an action brought by Geissmann against Mida, to recover back the purchase money paid by the former to the latter on a purchase of fifteen barrels of Anderson’s whisky, at the time in a bonded warehouse in Louisville, Ky. The plaintiff recovered $329.09, and the defendant brings error to this court.

The evidence shows that both parties had been engaged in the wholesale whisky trade, in Chicago, for several years prior to this sale, the plaintiff on his own account and the defendant as agent for distilleries, and that they had had several prior transactions of a similar nature, in which the plaintiff knew that defendant was dealing only as agent of the distilleries, whose whisky he sold. The sale in question was made Dec. 12,1883, in Chicago, and was effected by defendant, in -the usual mode, indorsing and delivering to plaintiff three warehouse receipts, for five barrels each, issued in the usual form, by the Anderson Distillery Co., reciting the receipt of said quantity in their bonded warehouse in Louisville, Ky., and agreeing to deliver the same upon the return of the receipt, properly indorsed by said Mida and payment of the government tax and storage. It was shown that they were respectively properly executed by the said company, and that the attestation of the United States storekeeper in charge of the warehouse was genuine. It appears that upon delivery of these receipts by defendant to plaintiff, the latter paid the former the price, amounting to $318.82, but that plaintiff retained the receipts in his possession, and made no attempt to have either of them presented at the warehouse or the goods demanded thereon'; and that about a year after the purchase, the said Distillery Company failed. During the trial, one of plaintiff’s attorneys withdrew his appearance, leaving the management of the case ostensibly in the hands of his law partner, and took the stand as a witness, and testified that during negotiations between the parties for a compromise, the defendant admitted to him that he had ascertained since the sale to plaintiff, that these receipts were duplicates and worthless. The defendant testified explicitly denying that he ever made any such statement to the attorney or any other person.

There was no evidence in the case, sufficient to go to the jury, tending to show that the receipts were worthless at the time of the sale, except said alleged admissions testified to by said attorney. And the defendant’s counsel offered to show by the defendant, when on the stand as a witness, that the whisky in question was in the warehouse which issued the receipts, at the time of the sale to the plaintiff, and also that if the receipts had been presented by the plaintiff to the warehouse company before their failure, the whisky could have been obtained. But upon objection by plaintiff’s counsel, the court excluded the evidence, to which defendant excepted.

Upon the issues raised, the evidence was clearly admissible and it was error to exclude it.

The defendant’s counsel offered to prove that at the time of the sale, there was a custom or usage of the whisky trade in Chicago, well known to all dealing in whisky warehouse receipts, that in purchasing whisky warehouse receipts, the seller of such receipts was never looked to as the responsible party; that the sole reliance was upon the warehouse which issued the receipts. Upon objection of plaintiff’s counsel, the evidence offered was excluded by the court, and exception taken. The same offer was varied and repeated, but was excluded.

We are of the opinion that it was entirely competent to prove such usage where, as in this case, it contravened no provision of an express contract. Humfrey v. Dale, 90 E. C. L. 265; S. C. affirmed, 96 E. C. L. 1004; Lonergan v. Stewart, 55 Ill. 44.

The defendant called witness Kirwin and asked him the preliminary questions, with a view to proving the custom or usage of the trade, whereupon the court put to the witness this question: “ Do you know of a custom that would place the loss on the buyer of a whisky warehouse receipt, where that receipt was fraudulent and worthless because of its being a duplicate of the original one that had been issued by the same warehouse ? ” To which counsel for the defendant objected, but the court overruled the objection, to which exception was taken. The witness answered: “ No sir, I never saw it tested.”

If that question had been put by plaintiff’s counsel, it would clearly have been objectionable, because it assumed that the warehouse receipts were fraudulent in their inception, a fact which was in dispute and which had not been proven. Haish v. Munday, 12 Bradwell, 539. But when put by the court and sustained as against the defendant’s objection, it was much more prejudicial to the defendant, because it indicated to the jury that the court was of opinion that the receipts were fraudulent when issued, and therefore worthless. Undoubtedly if the court had so declared its opinion to the jury in direct terms, it would have been error. Is it any the less so because the same thought was communicated to the jury, by the covert and indirect means of such an interrogatory ? Indeed, it is impossible to conceive of any purpose in asking the question, other than that of calling the attention of the jury to such assumed fact.

There was no attempt, on the trial, to prove either fraud or express warranty on the part of the defendant, in making the sale and transfer of the warehouse receipts. In the absence of such proof, we are aware of no principle or ground upon which defendant’s liability could be predicated, except that they were not, in fact, what they purported to be, the warehouse receipts of the Anderson Distillery Company, but were spurious, or forgeries, and therefore worthless. Gompertz v. Bartlett, 2 Ellis & B. 849; Forbes v. Pausinsky, 14 Bradwell, 1. And we are of opinion that this conclusion is unaffected by the circumstance that defendant indorsed them in b’ank to the plaintiff. It is unlike the case of the indorsement of negotiable promissory notes or bills of exchange, and the only contract the plaintiff was authorized to write over such blank indorsement of the receipts was one of mere assignment of the legal title, the statute giving no other effect to it, and the law merchant has no application.

We find it unnecessary to pass upon instructions, but for the errors indicated, the judgment must be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Bailey, P. J.

license: Public Domain

text:
    Alfred H. Andrews, Impl’d, etc., v. Mary Boedecker, Adm’x, etc.
    1. Master and servant.—In an action brought by an administratrix against an employer for damages, for 'negligence causing the death of the plaintiff’s intestate, the question of whether the relation he that of master and servant, so as to invoke an application of the rule of respondeat superior, is to he determined mainly by ascertaining from the contract of employment, whether the employer retained the power of directing and controlling the work, or has given it to the contractor. If the latter, the party undertaking to do the work is a contractor and not a servant.

      2. Damages—Excessive.—Damages for $5,000 held excessive for the death of a young laborer, aged nineteen years and eight months, whose wages were $1.75 per day, with a prospect of being increased to $2.00
    Appeal from the Superior Court of Cook county; the Horn Joseph E. Gaby, Judge, presiding.
    Opinion filed November 25, 1885.
    This was an action on the case brought by Mary J. Boedecker, administratrix of the estate of Henry J. Boedecker, deceased, against Alfred H. Andrews and Frank Douglas, to recover damages for the death of the plaintiff’s intestate, caused, as is alleged, by the negligence of the defendants.
    The declaration consists of two counts, of which the first charges that the defendants were in possession of a certain parcel of land in the city of Chicago, used by them for the purpose of piling, storing and drying lumber thereon; that it was their duty to use proper and reasonable care and skill in so doing, to prevent injury to persons lawfully upon or near said premises, but that the defendants, by their servants, carelessly, negligently and unskillfully piled and caused tobe piled a large quantity of lumber on the south side of said premises, and carelessly, negligently and unskillfully permitted the same to be piled without any proper and sufficient braces or other means to keep the same from falling and sliding over, and that while said intestate was, with all due care and diligence, lawfully on other land immediately south of said premises, said lumber, by reason of the careless, negligent and unskillful manner in which the same was piled by the defendants, fell and slid over upon said intestate and killed him. The second count is like the first, except that it alleges that Douglas was in possession of the lot, and that the lumber was piled on a portion of it by Andrews, by Douglas’ permission.
    The evidence shows that on the 15th day of January, 1884, a portion of a large pile of lumber which had been for several days standing near the south line of a certain lot in the city of Chicago fell over onto the adjoining lot, breaking down the fence between the lots and crushing a privy on the adjoining lot in which the deceased happened to be at the time, causing his instant death.
    The evidence tends to show that Douglas was the owner of a leasehold estate in the premises in question, and the proprietor of a dry-kiln situated thereon, and that he was then operating said dry-kiln mainly or exclusively in drying lumber for the firm of A. H. Andrews & Co., at a contract price of $3 per thousand feet; that Andrews & Co. brought the lumber to the kiln and took- it away when dried ; that one Andrew B. Honey was employed by Douglas to receive the lumber brought to be dried on a platform provided for the purpose, put it on cars or trucks which run it through the kiln, and when dried, to deliver it to the teams of Andrews & Co. For this work he was paid by Douglas at the rate of seventy-five cents per thousand feet. Douglas gave little personal attention to the kiln, leaving it to the care of Honey under his contract.
    The evidence tended to show that the kiln held about 30,000 feet, while the platform held only about 12,000 or 14,000 feet; that to keep the kiln supplied with lumber large quantities were delivered by Andrews & Co.’s teamsters and deposited on the ground on different parts of the lot, and that for the extra handling of the lumber thereby rendered necessary, Andrews & Co. paid Honey a certain price per thousand feet.
    The lumber which caused the death of the plaintiff’s intestate was a pile of maple lumber ten or twelve feet high. The evidence tends to show that the lower part of the pile consisted of a number of loads of lumber thrown down on the ground several days previously by the teamsters of Andrews & Go.; that two or three days before the accident, more lumber was delivered by said teamsters, which was received by Honey and piled by him on the top of the lumber previously thrown down, thus forming the pile in question; that by piling the lumber high, Honey was able more easily to place it on the platform, and that at the time the pile fell, Honey was engaged in. transferring the lumber therefrom to the platform.
    Douglas and Andrews tiled separate pleas, were represented by different counsel and defended separately, and the jury by their verdict found Douglas not guilty, but found Andrews guilty, and assessed the plaintiff’s damages against him at §8,000. For this sum and costs, the court, after overruling Andrews’ motion for a new trial, gave judgment against him.
    Andrews made his defense upon the theory, among other things, that the death of the plaintiff’s intestate was caused by the negligence of Honey, and that Honey, in what he did in the premises, was acting as an independent contractor, and not as the servant of Andrews, and there was evidence tending to support that theory of the case. At the instance of Douglas the court gave to the jury the following instruction:
    “ The jury are instructed that the said Andrew B. Honey might legally and properly be employed and paid by Andrews & Co. to pile up the lumber delivered by them at said kiln, and afterward to place the said lumber on the platform ready to be put into the kiln. And the jury are further instructed, that it was also legal and proper for the defendant Douglas to employ and pay the said Honey to take the lumber from said platform and put the same into the kiln, and thereafter deliver the same out of said kiln. In such case the said Honey would be the servant of the said Andrews & Co., in piling said lumher, and the servant of said Douglas in handling said lumber after it was put upon said platform.”
    To the giving of the foregoing instruction defendant Andrews duly excepted, and he now brings the record to this court by appeal.
    Mr. Liman M. Paine, for appellant;
    that where an injury is done by a person exercising an independent employment, doing work according to his own ideas, without directions or control by his employer, the party employing him is not responsible to the person injured, unless the work is jpe?* se a nuisance, cited Scammon v. Chicago, 25 Ill. 424; Schwartz v. Gilmore, 45 Ill. 456; Chicago v. Joney, 60 Ill. 383; Pfau v. Williamson, 63 Ill. 16; West v. St. L., V., etc., R. R. Co., 63 Ill. 545; Prairie S. L. & T. Co. v. Doig, 70 Ill. 52; Hale v. Johnson, 80 Ill.185; Kepperly v. Ramsden, 83 Ill. 354; Arasmith v. Temple, 11 Bradwell, 39; Addison on Torts, § 579; Cooley on Torts, 546.
    The damages are excessive, because the utmost that can lawfully be recovered in cases of this kind is compensation for pecuniary loss: Chicago v. Major, 18 Ill. 349; C. & R. I. R. R. Co. v. Morris, 26 Ill. 400 ; C. & A. R. R. Co. v. Shannon, 43 Ill. 346; C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; Conant v. Griffin, 48 Ill. 410 ; I. C. R. R. Co. v. Welden, 52 Ill. 290; I. C. R. R. Co. v. Baches, 55 Ill. 379; Chicago v. Scholten, 75 Ill. 468; C. & A. R. R. Co. v. Becker, 76 Ill. 25; Quincy Coal Co. v. Hood, 77 Ill. 68; C., B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; R. R. I., etc., R. R. Co. v. Delaney, 82 Ill. 198.
    Mr. George W. Stanford, for appellee ;
    that an instruction should not single out and give undue prominence to facts, cited Homes v. Hale, 71 Ill. 552 ; Shugart v. Haliday, 2 Bradwell, 45; Hewett v. Johnson, 72 Ill. 513; Hutchinson v. Crain, 3 Bradwell, 20; Protection Life Ins. Co. v. Dill, 91 Ill. 174.
    The damages are not excessive: Chicago v. Keefe, 2 N. E. R. 270; Hough Kirk v. President, etc., 92 N. Y. 219; Bierbauer v. N. Y. C. R. R. Co., 15 Hun, 559; Erwin v. Neversink Steamboat Co., 23 Hun, 573; Fitzgerald v. Nat. S. S. Co., 1 Weekly Digest, 225; Railroad Co. v. Barrow, 5 Wall. 90.
   Bailey, P. J.

There being evidence tending to show that the death of the plaintiff’s intestate ivas caused by the negligence of Andrew B. Honey in piling the lumber which fell upon and killed him, the question arose whether in that particular matter he was acting independently or as the servant of defendant Andrews. The evidence showed that he was employed and paid to do that work by Andrews, but it ivas insisted by the latter, and the evidence also showed that Honey’s relation to him in the matter was that of an independent contractor, and not. that of a servant. Upon this question the court gave to the jury an instruction at the instance of defendant Douglas, holding, in effect, that if Honey was employed and paid by Andrews to do the work, that alone constituted him a servant of Andrews.

The question in a case of this character, whether the relation be that of master and servant, so as to invoke an application of the rule of respondent superiores, to be determined mainly by ascertaining from the contract of employment whether the employer retainsjhe power of directing and controlling the work, or has given it to the contractor. If the employer retains no control over the details of the work, but contracts in such manner that the other party is to do it according to his own ideas and without being subject to the control of his employer in respect to the manner of doing, it, the party undertaking to do the work is a contractor and not a servant. This rule is abundantly supported by the numerous authorities cited by the counsel for the appellant, and has received elaborate consideration by us in the recent case of Chicago City Ry. Co. v. Hennessey, 16 Bradwell, 153; it is therefore unnecessary for us to discuss it further.

The fact that Andrews employed and paid Honey to pile the lumber, was not- the test by which to determine whether the relation of master and servant existed, so as to render Andrews liable for the negligence of Honey. The instruction, then, was clearly erroneous.

We think that the damages awarded by the jury were excessive. The evidence shows that the deceased, at the time of his death, was about nineteen years and eight months old ; that he was a mechanic, and was earning $1.75 per day, and was in prospect of having his wages advanced to $2.00 per day; that he left surviving him his mother and six brothers and sisters, of whom three were older and three younger than himself; that up to the time of his death he was in the habit of giving all his wages to his mother. This in substance was all the evidence bearing on the question of damages.

The damages awarded were $5,000. This is a sum which, if kept properly invested, would produce a perpetual income equal at least to the entire wages the deceased would be likely to be able to earn, after his necessary personal expenses should be deducted. While there is no fixed or exact measure of damages in cases of this character, and much must be left to the sound discretion of the jury, yet in this as in all other matters, this finding of the jury must be based upon the evidence. They may assess such damages as will be a just and fair compensation for the pecuniary loss suffered by the next of kin from the death of the deceased, and on doing so, they may take- into consideration every reasonable expectation the survivors may have had of pecuniary benefit or advantage from the continuance of his life.

Until the deceased attained his majority, his mother would of course have been entitled, if he had lived, to his earnings, and would have been liable for his support. On his reaching his majority, that right would have ceased and from that time-on, the pecuniary loss of the next of kin must he measured largely by such pecuniary benefits as duty, affection or gratitude would probably have moved him to bestow. But there is certainly no basis in the evidence for supposing that such benefits would extend to the entire net income of the deceased during his entire life, and to the leaving behind him for their benefit of a legacy of the principal sum of $5,000.

For the reasons above given, the judgment will be reversed and the cause remanded.

Judgment reversed.


author: Wilson, J.

text:
    Arthur T. Howe et al. v. E. G. Frazer.
    1. Practice Act.—The 32d section of the Practice Act is not mandatory in such sense as to make the mere omission to file the copy of the instrument or account with the declaration, ground for dismissing the plaintiff’s suit.
    2. Practice—Motion made too late.—The plaintiff’s motion at the trial to strike from the files defendant’s pleas of set-off, because of his failure to comply with the statutory requirement to file with said pleas a copy of the instrument and account, comes too late after the plaintiff had replied in bar to defendant’s plea, and after the case had been twice previously tried in the court below and once heard in the Supreme Court,
    3. Verdict undisturbed.—The court can not say that the verdict is not supported by a preponderance of the evidence, nor that it is not in accordance with the merits of the case.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Arthory, Judge, presiding.
    Opinion filed November 25, 1885.
    Messrs. Hodges & Shipper, for appellants ;
    that plaintiffs were entitled to the rule asked for, cited Eddie v. Eddie, 61 Ill. 134; Young v. Browning, 71 Ill. 44; Filkins v. Byrne, 72 Ill. 101; R. S. Ch. 110, § 32.
    Mr. Johr P. Altgeld, for appellee.
   Wilson, J.

This was assumpsit brought by Howe and others to recover the price of a quantity of lime sold by the plaintiffs to the defendant, amounting to 8358.33. The plaintiffs’ demand being admitted, the only contention on the trial arose upon the defendant’s plea of set-off.

The record is voluminous, and we shall not undertake to state here the facts of the case, but refer to Howe v. Frazer, 106 Bl. page 563, where they appear with sufficient fullness to answer our present purpose. The substance of the defendant’s claim as set forth in his special plea is, that he entered into a contract with the plaintiff, by which, in consideration that he would undertake to introduce and work up a demand for their Marble Head lime in a certain designated distinct, they agreed to furnish him all the lime of their brand he might need to supply his trade in said territory for five years, at sixty cents per barrel, in barrel, and forty cents per barrel in bulk, and that he should have the exclusive right of selling said lime throughout the designated territory during five years. He alleges that he performed his part of the contract, but since December 1, 1880, plaintiffs failed and refused to perform their part; that he had spent labor and money therein to the amount of $10,000 ; that plaintiffs had derived a profit therefrom of $12,000, and that the exclusive right to sell said lime for the unexpired term of the contract was worth $10,000, of which he was deprived.

To this plea the plaintiffs replied, first, a general denial, second, that the alleged contract was not to be performed in one year, and was not in writing as required by the Statute of Frauds; to which defendant rejoined that said contract was in writing, signed by the plaintiffs.

The jury found for the defendant $3,000, for which sum he had judgment.

It appears that five days before the trial began, the plaintiffs moved the court' for a rule upon the defendant to file with his pleas of set-off, a copy of the instrument and account upon which he intended to rely, and referred to in his said pleas; and that upon the cause being called for trial and before entering thereon, the plaintiffs moved the court to strike from the files the defendant’s pleas of set-off, because of his failure to comply with the statutory requirements to file with said pleas a copy of such instrument and account. The plaintiffs also moved the court to refuse to permit the defendant to introduce any evidence in supjDort of the instrument or account for the same reason. These several motions were overruled, and the plaintiff excepted.

It is contended by appellant that the 32d section of the Practice Act is mandatory, and that a failure to file a copy of the instrument or account, upon which he intends to rely, subjects him to the consequence of having his plea stricken out on motion, or disregarded at the trial. This, we think, is a misapprehension of the scope and effect of the statute. We understand that a defendant is placed by that section of the act in the same position, qvo ad hoc, as is a plaintiff when tiling his declaration. It has never been held that the statute is mandatory in such sense as to make the mere omission to tile such copy with the declaration ground for dismissing the plaintiffs’ suit, even after the lapse of two terms. This was so ruled as far back as 1810, in Kimball v. Kent, 2 Scam. 218. The court said, “ The cause might have been continued for a refusal or omission to file the account, but until a rule had been obtained requiring the plaintiff to file the account, and there had been a failure to comply with such rule, the cause should not have been dismissed.” And in McCarthey v. Mooney, 41 Ill. 301, where the defendant moved for a continuance for want of a bill of particulars, the court said Such dilatory motions must, under the rules of practice, be made at the earliest practicable period. Such a motion comes too late after a plea in bar to the action. This, like a motion to dismiss for want of security for costs, pleas to the jurisdiction and in abatement, does not go to the merits, and is not favored by the courts. If such a motion may be entertained after a plea in bar, it may be at any time before the trial. And such a practice would be attended with great delay, and in no wise tend to the promotion of justice-” See also Eddie v. Eddie, 61 Ill. 134, 22 Id. 258; 75 Id. 62; 81 Id. 278. In the present case the motion came too late. It was made not only after the plaintiff had replied in bar to the defendant’s plea of set-off, but after the case had been twice previously tried in the court below, and once heard in the Supreme Court, so that we must presume the plaintiff was fully apprised of the defendant’s claims. Moreover the motion was not made until after the cause had been reached in the regular call of the docket, and both parties had announced themselves as ready for trial, whereupon the ease was set down to be taken up as soon as some unfinished business should be disposed of, and so the trial was liable to begin at any moment. It is readily perceived how a rule entered at that late hour might have operated as a great hardship upon the defendant, whose residence andplace of business was at Rock Island, necessitating, presumably, a continuance of the case and much additional expense. We are therefore of opinion that the first error assigned, challenging the ruling of the court in respect to a copy of the instrument and account relied on, is not sustained.

As to the other error relied on, viz., the overruling plaintiff’s motion for a new trial, because the verdict was not supported by the evidence, we have to say that we have examined the evidence with great care. The evidence is conflicting. It would subserve no useful purpose for us to attempt to analyze it, but we can not say that the verdict is not supported by a preponderance of the evidence, nor that it is not in accordance with the merits of the case. The Supreme Court, when this case was before it on a former occasion, held, in substance, that the letters which were relied upon to take the case without the Statute of Frauds, were not sufficient for that purpose; but it was also held that where one has derived a benefit from the services and money of another under a parol contract to which he successfully pleads the Statute of Frauds, he is, nevertheless, liable under a quantum meruit, to the extent of the benefit so derived. As the evidence tended to bring the case within this principle, and the question was solely one of fact for the jury, we do not feel at liberty to set aside their finding.

Perceiving no error in the record the judgment of the court below must be affirmed.

Judgment affirmed.


text:
    Almerin H. Winslow, Impl’d, etc., v. The People, use, etc.,
    1. Guabdian and wabd—-Remedy on bond.—A guardian’s bond, given in the estate of three minors jointly, is enforceable at the suit of one of the minors for his individual interest, although one of the three had died between the time of the guardian’s appointment and the breach of the condition of the bond.

      2. Same—Negligence.—If a guardian neglects or fails to enforce the security on a loan of his ward’s money until the remedy is barred by the Statute of Limitations, his bondsmen are liable to the ward for such neglect.
    3. Statutes—Change affecting remedy.—W here the remedy is changed by statute, all rights of action are enforceable under the new procedure without regard to whether they accrued before or after such change in the law.
    Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed November 25, 1885.
    Mr. George W. Smith and Mr. John M. Gartside, for plaintiff in error;
    cited Scheel v. Eidman, 68 Ill. 193, R. S. 1845, 399, § 16; p. 562, § 126; p. 564, § 137; R. S. 1883, Ch. 103, § 16.
    Proof of demand and refusal of payment must be shown before recovery can be had: Price v. Farrar, 5 Bradwell 536; Mortimer v. People, 49 Ill. 475.
    Mr. John H. Hamline, for defendant in error;
    cited McIntyre v. People, 103 Ill. 142; Bonham v. People, 102 Ill. 434; Hughes v. People, 111. Ill. 461; Bond v. Lockwood, 33 Ill. 216: Byrne v. Ætna Ins. Co., 56 Ill. 326.
    Where an act simply changes the remedy or the law of procedure, all rights of action will be enforceable under the new procedure, without regard to whether they accrued before or after such changes in the law : Dobbins v. First Nat. Bk. 112 Ill. 562.
   Bailey, P. J.

This was an action of debt, brought by the People of the State of Blinois, for the use of Ida G. Wilrath against Chauncey T. Bowen, George S. Bowen and Almerin II. Winslow, on the bond of Chauncey T. Bowen as guardian of Ida G., May H. and Daniel E. Wilrath. George S. Bowen and Almerin H. Winslow only, were served with process. Bowen pleaded a discharge in bankruptcy, and Winslow filed a plea of non est factum, and also a plea of nil debet, and issues of fact being formed upon these pleas, a trial was had before the court without a jury, at which the issue upon the plea of a discharge in bankruptcy was found in favor of said Bowen, but as to said Winslow, the issues were found for the plaintiffs, and their debt assessed at $20,000, the penalty of the bond, and their damages at $3,794.39. Upon this finding judgment was duly entered by the court. The ad damnum in the declaration being only $3,000, and the plaintiffs having entered a remittitur damnam this court as to all their damages in excess of that sum.

It appears that on the 10th day of December, 1867, said Chauncey T. Bowen, having been appointed by the County Court of Cook county, guardian of said three minors, executed his guardian’s bond in the form then prescribed by the statute, in the penal sum of $20,000, with the other two defendants as his sureties, and received into his hands certain moneys amounting to $7,000, of which said minors were each entitled to one third. Bowen thereafter, from time to time, filed in the county court, reports showing his accounts as guardian, in which he stated his accounts with each of his wards separately. On the 17th day of November, 1871, May H. Wilrath died, and afterward said guardian continued to render his accounts with his two surviving wards down to February 23, 1877, at which date he filed a report showing that he then held for his ward, Ida G. Wilrath, the sum of $2,384.05. On the 16th day of July, 1877, Ida G. Wilrath attained her majority, and on the 20th day of August following, this suit was brought. The breaches of the bond assigned in the declaration are a failure by said guardian to render a fair and just account of his guardianship to the County Court of Cook county, and his neglect and refusal to pay over to said Ida G. Wilrath said money belonging to her, and converting the same to his own use.

It is insisted that, as Bowen was appointed guardian of the three minors at one time and gave his bond conditioned for the performance of his duties under such appointment, upon the death of one of said wards the appointment ceased, and his subsequent acts as the guardian of the two survivors were not covered by the condition of the bond. We fail to see how any such result could follow. Although there was but one appointment and one bond, he was the guardian of each minor severally, and each guardianship was within the condition of the bond. The statute required that, in all cases where a person was appointed guardian for more than one ward at one time, the court should include all in one bond. R. S. 1845, Chap. 47, Sec. 15. This wras manifestly for convenience, and to obviate the necessity of executing as many separate bonds as there might be wards, but it was not intended to coniine the appointment to the mere joint guardianship of those for whom the appointment happened to be made at one time, nor was it intended that the expiration of the guardianship as to one, as by his attaining his majority, his choosing another guardian, his death, or by any other means, should have the effect to dissolve and terminate the guardianship as to all.

The case of Scheel v. Eidman, 68 Ill. 193, cited by counsel, sustains no such principle as that contended for. That was a claim presented by several wards jointly against the estate of a deceased guardian for moneys arising from the sale of certain lands hi which they had an undivided interest, and which was received by the guardian and never separated by him or accounted for to his wards separately. It was held that, under these circumstances, it was not improperly prosecuted in the joint name of the wards against the estate of the guardian for allowance. That, however, was a proposition entirely foreign to the one the case is cited to support.

It is next urged that the suit can not be maintained for the reason that no devastavit was first established against the guardian. Whatever may have been the rule of procedure in this respect, at the time the bond in question was executed, the Bevised Statutes of 1874 have obviated the necessity of establishing the liability of the principal on a guardian’s bond before bringing suit against him and his sureties on the bond. R. S. 1874, Chap. 103, Sec. 13; McIntyre v. The People, 103 Ill. 142; Bonham v. The People, 102 Id. 434. Both of these cases were suits upon guardian’s bonds executed before the Bevised Statutes of 1874. This statutory provision affects the remedy only, and applies to all guardians’ bends irrespective of the date of their execution. Where the remedy is changed hy statute, all rights of action are enforceable, under the new procedure, without regard to whether they accrued before or after such change in the law. Dobbins v. First National Bank, 112 Ill. 553.

We think there was no error in charging the sureties with interest. So far as the guardian charged himself with interest in his accounts rendered to the county court, his reports are binding on his sureties. City of Chicago v. Gage, 95 Ill. 593, and cases there cited. We see no reason why the plaintiffs were not entitled to recover simple interest on the moneys due Ida G. Wilrath from the time she became of age, so as to be entitled to receive them, or at least from the time of the commencement of her suit to recover them. That would seem to be a right given by th e second sect! on of the statute in relation to interest. The amount of interest included in the judgment after the entry of the remittitur, was much less than simple interest on the amount due from the commencement of the srdt.

Complaint is made that certain credits to which the guardian was entitled were not allowed. It is conceded that a credit of §140 paid by the guardian to Ida G. Wilrath and which should have been allowed was omitted by the court. This, however, is more than covered by the amount remitted from the damages recovered and it no longer furnishes the defendants a ground of complaint. We see no ground for allowing the other credit of §480 which is also claimed. That was for moneys received by Hamilton hi. Wilrath, the father of said wards, as the proceeds of the foreclosure of a certain deed of t/ust held by the guardian as security for money loaned by him out of the estate of his wards. It is not necessary to determine whether that money came rightfully or wrongfully into the hands of Hamilton M. Wilrath, as it is not shown that it ever came into the hands of Ida G. Wilrath, or was expended for her benefit. Her father admits that he received it, and expended most of it for family expenses, and it is also true that Ida G. Wilrath has resided in his family most of the time both before and since her majority. But those circumstances do not charge her with the money expended by her father for family expenses. She was in no way liable for such family expenses, although a member of the family, at the time they were being incurred.

Lastly, it is strenuously insisted by counsel that the sureties on the bond were entitled to a credit in respect to the sum of $3,000 loaned by the guardian in 1873, to said Hamilton M. Wilrath, and for which the guardian took, and so far as appears, still holds the note of said Wilrath, due one year after date, secured by a deed of trust on certain real estate, then, and still occupied by him as a homestead. The claim that Ida G. Wilrath should be charged with this money or some part of it, simply because she has lived with her father in the homestead covered by the deed of trust, with knowledge that said money had been loaned to him and secured upon the property, does not seem to us to merit serious consideration. She can not be said to have in this way enjoyed the benefit of the fund, so as to estop her from collecting it of the guardian or his sureties. The money loaned to Wilrath, so far as this record shows, is still represented by the note and deed of trust, and may still be collected by the guardian, or his sureties, after discharging their liability on the bond, may become entitled to it by subrogation.

It is said that the note and deed of trust are barred by the Statute of Limitations. Whether they are or not can make no difference, so far as we can see, with the rights of the parties to this suit. If the money has been lost by delay in enforcing the security, the loss is imputable alone in the negligence of the guardian for whose acts the sureties are responsible under the condition of the bond.

We find no error in the record, and the judgment will accordingly be affirmed.

Judgment affirmed.


author: McAllister, J.

text:
    The C. J. L. Myer & Sons Co. v. Isaac Davies.
    Building contract.—In order to recover damages which are not the necessary result of the breach of a contract or a tort, they must be specially' set out in the declaration. The com t is of opinion that the delay of the men, and the payment by plaintiff to the men during that delay, can not be regarded as a necessary result of the defendant’s breach of the contract.
    Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Opinion filed November 25, 1885.
    This was an action by appellee, Davies, against the ap]7ellant corporation, to recover damages for the breach of an alleged contract, whereby the latter undertook to cause to he made for the former and to deliver to him at a certain building, which plaintiff, as contractor with one W. E. Bollo, was constructing, the doors, sash and blinds for such building. The declaration contained several special counts upon the contract, in some of which a specified time for the delivery was averred; and, in others, it was averred that such delivery was to he in a reasonable time. The only special damages set out in any count was that plaintiff had promised said Bollo to complete the building within a specified time, and that if he failed he was to pay Bollo as damages, fifteen dollars per day, during the time of such failure, of which it was averred the defendant had notice at the time of the contract.
    On the trial before the court and jury, the plaintiff gave evidence tending to prove the contract a breach, and some items of general damage, or damage which might he considered as to the natural and necessary consequence of such breach, hut which would amount to only about §56. Then, in order to prove special damage, the court permitted the plaintiff, against the objection of the defendant, to prove that he had twenty-four men employed on the building in question; that these men. were delayed three weeks in consequence of the defendant’s failure to furnish said doors, sash and blinds, and to prove the wages he paid them respectively during said delay. hTo such special damages were set out in either count of the declaration. hTor was there any evidence which tended to show that any such special damage was within the contemplation of the parties at the time of making the alleged contract sued upon.
    The court, of its own motion, gave to the jury the following instructions:
    “ The court instructs the jury that if they believe from the evidence that the defendant company agreed to and with the plaintiff to furnish certain material for houses he was then building, within a certain specified time, and that without the fault of the plaintiff, the goods or materials were not delivered within the specified time, and that by reason of such failure to deliver said materials, the plaintiff sustained damage; and if you further believe from the evidence that the plaintiff could not have bought these goods elsewhere and on as favorable terms, and avoided any damage by reason of said alleged delay, then you may find for the plaintiff such damage as you find from the evidence he has sustained.
    “If jury believe from the evidence that the defendant contracted with the plaintiff to furnish certain materials for the houses the plaintiff was then building, and that there was no time agreed upon within which the said materials were to be furnished, then the court instructs you that the contract was to deliver within a reasonable time, and the jury are to determine, from the evidence and the circumstances of the case what was a reasonable time.

      “ If you believe from the evidence that the materials were delivered within a reasonable time, then there can be no damage allowed for any alleged breach of the contract.
    “ If the the jury believe from the evidence that the material were not delivered in a reasonable, time, and that the plaintiff did not cause such delay, and that the plaintiff has shown that it was not in his power to buy said materials elsewhere, and on as favorable terms, and thus complete his contract in time, then you will find for the plaintiff and award him such damage as has been shown by the evidence, if any.”
    To the giving of which defendant’s counsel duly excepted. The jury found for the plaintiff, and assessed his damages at $289.87; and the court overruling the defendant’s motion for a new trial, gave judgment on the verdict'from which the latter brought this appeal.
    Messrs. Shuman & Defrees, -for appellant;
    as to damages, cited Snell v. Cottingham, 72 Ill. 161.
    Mr. John Barton Payne and Mr. J. Y. A. Weaver, for appellee ;
    cited Field on Damages, 237; Stewart v. Power, 12 Kan. 600; 2 Sutherland on Damages, 397; Tobey v. Price, 75 Ill. 648.
   McAllister, J.

It is well settled law, that in order to recover damages which are not the necessary result of the breach of a contract or a tort, they must be specially set out in the declaration. Olmstead v. Burke, 25 Ill. 86; City of Chicago v. O’Brennan, 65 Ill. 160; Bristol Manufacturing Co. v. Gridley, 28 Conn. 201; Warner v. Bacon, 8 Gray, 397; Hunter v. Stewart, 47 Maine, 417. The elementary rule is this: “But where the damages, though the natural consequences of the act complained of, are not the necessary result of it, they are termed special damages; which the law does not imply, and therefore in order to prevent a surprise upon the defendant, they must be particularly specified in the declaration, or the plaintiff will not be permitted to give evidence of them on the trial.” 2 Greenlf. on Ev., § 254; Teagarden v. Hetfield, 11 Ind. 522.

The delay of twenty-four men for three weeks, and the payment by the plaintiff to those men during that delay, can not be regarded as a necessary result of the defendant’s breach of the contract, if a natural one; so that the damage was special. And if such damage was recoverable at all, it was indispensable that it should have been particularly specified in the declaration. But it was not, and the court not only admitted evidence of such special damages, hut in the instructions given to the jury, in effect directed them if they found the contract was made, a breach of it by the defendant, and that plaintiff was unable to purchase the same kind of materials elsewhere, then the jury might allow the plaintiff such damages as they found from the evidence he had sustained. It will be observed, that neither of the instructions contained any hypothesis, as to whether any of the consequential special damages sought to be shown by themlaintifl’s evidence, were to be considered as within the contemplation of the parties, at the time of the contract. In that particular also, the instructions were defective and misleading. Olmstead v. Burke, supra; Goodkind v. Rogan, 8 Bradwell, 413.

We are of opinion that the court erred in the admission of testimony in giving instructions, and overruling defendant’s motion for a new trial, for which errors the judgment must be reversed and the cause remanded.

Judgment reversed.


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    J. C. Mitchell v. Chesapeake & Ohio R. R. Co.
    Waiver—Delivery.—The court is of opinion that plaintiff’s telegram to his broker, “ Do the best you can; whatever you do will be satisfactory,” was intended to and had the effect of a waiver of payment of the drafts and procurement of the bills of lading, as a condition precedent to the broker obtaining possession of the hay, and was an authority to defendant to deliver to such broker.
    Appeal from the County Court of Cook county; the Hon. Bichabd Prendeegast. Judge presiding.
    Opinion filed November 25, 1885.
    Mr. Luman Allen, for appellant;
    that defendant’s delivery to the broker was a conversion, cited McEnlet v. N. J. Steamboat Co., 45 N. Y. 37; Hutchinson on Carriers, Ch. 8, § 344; Price v. O. & S. Ry., 50 N. Y. 213; Stephenson v. Hart, 4 Bing. 476; Devereaux v. Barclay, 2 B. & Ald. R. 708; Wilson S. M. Co. v. L. & N. R. R. Co., 71 Mo. 214; Viner v. Steamship Co., 50 N. Y. 23.
    Mr. M. Cabuthebs, for apapellee;
    when for any reason the consignee is not ready to receive goods on their arrival and the carrier pruts them in store, ready for delivery, the carrier’s liability as insurer ceases, cited Merchants Despatch Co. v. Hallock, 64 Ill. 284; Rothschild v. Mich. C. R. R. Co., 69 Ill. 164; I. C. R. R. Co. v. Alexander, 20 Ill. 23; Noway Plains Co. v. B. & M., 1 Gray, 263.
   McAllister, J.

This was an action on the case in the court below brought by appellant, Mitchell, against aprpellee, the Chesapeake & Ohio R. R. Co., to recover damages for the alleged loss by negligence and wrongful conversion of three car loads of baled hay, delivered at Chicago, one, December 22, 1881, another December 27th, and the third, January 3,1882; by the former to the latter to be carried, one car load to Wilson Mills, and two to Baleigh, in the State of Horth Carolina. The case was tried under plea of not guilty, by the court without a jury, resulting in a finding and judgment for defendant, from which pfiaintiff took this appeal.

The court below was not requested to pass upon any propositions of law, so that all we have to determine is, whether the evidence fairly tended to support the finding. Hpon a careful consideration of 'the testimony, we are of opinion that it did, and that there is no sufficient ground for setting it aside. It appears that plaintiff, before and at the time of delivering this hay to defendant, had an agent or broker at Baleigh, of the name of Gattis, who had contracted a sale to three different parties there of a like quantity of Ho. 1 timothy, at a specified price, and this hay was sent by plaintiff, in whose behalf Gattis was acting, to be delivered on those contracts; that the defendant gave plaintiff, at the time of receiving the hay from him here, a bill of lading in the usual form, for each car load; that the -plaintiff, thereupon, drew a draft on Gattis for such sum as each car load would come to at the price for which the latter had contracted to sell it, attached each draft to the corresponding bill of lading, which latter he indorsed, and put them in a Chicago bank to be forwarded to ¡Raleigh for collection. Of course it was expected that Gattis would have to pay the drafts before he could get possession of the bills of lading, and that the latter would be necessary to liis getting the hay from defendant. ¡But it turned out that the hay, on arrival at its destination, did not answer, as to quality, the hay which Gattis had contracted, and that it was really in a bad condition and worth much less than plaintiff supposed, and the parties who had purchased refused to take it. The bills of lading with the drafts were sent to a correspondent of the bank at ¡Raleigh for collection, but Gattis declined to accept and pay the drafts or either of them. The plaintiff was informed of the situation of affairs, and was finally informed by telegram from Gattis that the railroad company insisted upon the hay being taken from their warehouse at once. Whereupon, the plaintiff being still the holder of the several bills of lading and drafts, replied to Gattis by telegram: “ Do the best you can; whatever you do will be satisfactory.” This being shown by Gattis to the agent of defendant at Raleigh (the hay all being then there), the latter regarding this telegram as authority from the plaintiff to deliver the hay to Gattis for him, delivered it to Gattis, without production and surrender of the bills of lading, on his paying the freight, etc. Gattis afterward sold the hay, at the best he could get, but at a much reduced price, and sent pdaintiff an account of his doings, and of the balance in his hands, directing plaintiff to draw on him for the amount. About a month thereafter plaintiff did draw, but Gattis having meanwhile failed, the draft was not honored.

There is no satisfactory evidence that the condition of the hay, at its destination, was in any respect due to any fault or negligence on the part of defendant, so that the only question presented is, was the delivery to Gattis without payment of the several drafts, and possessing himself of the hills of lading and their surrender to defendant, wrongful as respects the plaintiffs. It is a fair inference from the testimony, that plaintiff knew when he sent said telegram to Gattis, that the latter would not, as things were, pay those drafts; that-he also knew there was an urgent necessity for 'taking the hay off defendant’s hands and relieving it of the care of this bulky and extra-hazardous property, which it was under no legal obligations to any longer store and care for. Plaintiff had previously directed Gattis, on being informed of the condition of the hay, and that the parties he had contracted with had refused to take it, to sell to other parties. Under these circumstances he sends to Gattis: “ Do the best yon can; whatever you do will be satisfactory.” We can come to no other conclusion than that this was intended to, and had the effect of a waiver of payment of the drafts and procurement of the bills of lading as a condition precedent to Gattis obtaining possession of the hay. It was an authority to Gattis to take possession without such payment, etc., and was, of necessity, an authority to the defendant to deliver to Gattis without such payment, etc. Suppose plaintiff had gone in person and said: “ I am still the holder of the bills of lading and drafts, and I want the possession of that hay.” Would a dehvery to him without surrender of the bills of lading, be a wrong of which he could complain ? He has done the same thing through his authorized agent. What is the difference? We can see none. Besides there is evidence of a subsequent ratification with full knowledge of the acts of Gattis in thus obtaining possession and disposing of the hay. There is nothing in this appeal, and the judgment should be affirmed.

Affirmed.


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    Kalkaska Manufacturing Company v. Levi H. Thomas.
    1. Practice.—The admission of counter affidavits upon a motion to open a default is improper.
    2. Same—Default.—When after default taken, the defendant files an affidavit in apt time, from which it clearly appears that his seeming negligence is explained and excused, and that he has a good defense on the merits to the action, which is set out in detail, his application to have the default set aside should be granted.
    3. Same—Notice.—After a default for want of a plea is entered against a defendant who hasMmply caused his appearance to be entered, in an action of assumpsit, in the Superior Court of Cook county, it would seem but just and reasonable, considering the number of courts in the city and their press of business, that the plaintiff’s attorney should be required to give notice to the defendant’s attorney of the motion for the inquest of damages, because the defendant has the undoubted right to contest the matter of damages at such inquest.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed November 25, 1885.
    This was an action by appellee, Thomas, a resident of this county, against appellant, the Kalkaska Manufacturing Co., a corporation created by the laws of the State of Michigan, and having its factory and place of business in the northern part of that State. Summons issued April 3, 1885, returnable to the May term of the superior court, and was returned served April 23d, and declaration upon executory contract filed on that day, claiming damages in the sum of §7,000. May 6th, the defendant caused its appearance to he duly entered by attorney. June 6tli, defendant’s default was entered for want of appearance, no rule having been taken on defendant to plead June 8th, defendant’s attorney, not knowing of the default, filed a special demurrer to the declaration. June 23d, the cause being on the trial calendar and not reached in its order, the plaintiff’s attorney, without any notice to defendant’s attorney) made a motion to strike the demurrer from the files and for assessment of damages by jury. The motion was granted and damages assessed at §1,008.50, for which judgment was given.
    At the same term, and July 3d, defendant’s attorney made a motion in the cause, upon notice, to set aside the default and judgment and for leave to plead, supported by his own affidavit stating and showing that the defendant was a foreign corporation having its main place of business in the northern part of the State of Michigan; that at the time he entered his appearance in the cause, the presiding judge announced to him from the bench that it was the practice in that court, when parties had appeared by attorney, not to permit any proceeding to be taken in the cause by one, without notice to the other of the attorneys; and it is further stated and shown that after diligent inquiry, affiant could not ascertain that said court had any published rules of practice; and he therefore relied upon what had thus been stated to him. The affidavit, for further excuse of the seeming negligence on the part of defendant, shows that soon after the bringing of the suit, negotiations were entered into between the parties, for a settlement of the claim in suit and that terms of settlement were actually agreed upon before the default was taken, among which was the dismissal of the suit. The affidavit further shows, from facts positively stated in detail, that the defendant had a good defense to the action upon the merits. On the hearing of the motion, the court permitted the plaintiff, against the objection of defendant, to read counter affidavits, and denied defendant’s motion, from which order the latter, preserving said matters in the record by bill of exceptions, appealed to this court.
    Mr. "William T. Blair for appellant;
    that an appellate court will interfere with respect to a matter ordinarily resting in the discretion of the court below, when there has been an evident abuse of that discretion, to the injury of the party in default, cited Scales v. Labar, 51 Ill. 232; Mason v. McNamara, 57 Ill. 274; Union Hide & Leather Co. v. Woodley, 75 Ill. 435; Hinckley v. Dean, 104 Ill. 630; Hopkins v. Medley, 97 Ill. 402.

      The court should always exercise its power of opening a judgment by default, when to permit it to stand would be oppressive, if the defendant has shown reasonable diligence to avoid the effects of the default: Mason v. McNamara, 57 Ill. 284; Union Hide & L. Co. v. Woodley, 75 Ill. 435; Mendell v. Kimball, 85 Ill. 582; Souerbry v. Fisher, 62 Ill. 135; Waugh v. Suter, 3 Bradwell, 271.
    Mr. A. A. Exulke, for appellee;
    that a motion to set aside a default is addressed to the sound legal discretion of the court in which it is made, and appellate courts will not interfere unless there has been a palpable abuse of this discretion, cited Kirchoff v. Braley, Supreme Court, Ill., Sept. 7,1884; Hitchcock v. Herzer, 90 Ill. 543; Constantine v. Wells, 83 Ill. 192; Greenleaf v. Roe, 17 Ill. 474; Scales v. Labar, 51 Ill. 232; Mendell v. Kimball, 85 Ill. 582.
   McAllister, J.

The court below permitted the plaintiff, against the objections of the defendant’s counsel, to introduce voluminous affidavits in opposition to the motion of defendant to open the default, and for permission to plead, and it is very probable that such counter affidavits controlled the action of the court in denying the motion. We are of opinion that the admission of counter affidavits, ujron a motion to open a default, is improper. In Phillips v. Blagge, 3 Johnson, 141, the plaintiff’s attorney offered counter affidavits upon the hearing of a motion to set aside an inquest; but the court said it was settled, that no counter affidavits could be read in such a case. In Hanford v. McNair, 2 Wend. 286, the same principle was recognized. In Mendell v. Kimball, 85 Ill. 582, the court said : “ The record in this cause shows that counter affidavits were read by plaintiffs on the hearing of the motion to set aside this default. This is a vicious practice. Courts can not do justice to parties in thus trying the merits upon affidavits, when the affiants áre not subject to cross-examination. Such motions should be determined ujion the ex 'parte affidavits in support of the motion, and they should be strictly scrutinized.” It does not appear that any exception to their introduction was taken in that case, and it did appear that the affidavit in support of the motions failed to show any excuse for the negligence of defendant’s attorney. In the case at bar, the affidavit in support of the motion shows a good excuse for not filing a plea or keeping closer watch of the case. (1) The announcement of the court that the rules of practice of that court required notice to the attorney of the opposite party before any proceeding could be taken. (2) The piendency of negotiations for a settlement, brought, as it was supposed, to a successful termination. The affidavit shows by facts positively stated and in detail, that the defendant had a good defense to the action upon the merits, and there is no pretense that the motion to open the default was not made in apt time, it being at the same term and only a few days after the judgment.

We have no means of ascertaining precisely what the practice of the Superior Court is, in respect to requiring notice of assessment of damages in such case, where the defendant has entered an appearance. In Cairo, etc., R. R. Co. v. Holbrook 72 Ill. 421, the court said : “ By our practice, the defendant not having entered its appearance, was not entitled to notice of the execution of the writ of inquiry, so that if no time was fixed for its execution by order of the court, the defendant, if it would contest the amount of damages, would be under the necessity of keeping watcli and being ready whenever the plaintiff, with the consent of the court, chose to have them assessed.”

The damages in the case at bpr were unliquidated. If no time was fixed by the court for their assessment, and notice thereof given to defendant’s attorney, then it would seem but just and reasonable, considering the number of courts in the city, and their press of business, that the plaintiff should have been required to give notice to the defendant’s attorney of the motion for the inquest of damages, because the defendant had the undoubted right to contest the matter of damages at such inquest. How, disregarding the counter affidavits, as the law requires us to do, it clearly appears from that, in support of the motion to open the default, that the seeming negligence of defendant’s attorney is explained and excused; that the defendant had a good defense on the merits to the action which is set out in detail; and, it not being pretended that there was any real laches as to making the application, we are of opinion that it should have been granted and it was error to refuse it. Dunlap v. Gregory, 14 Bradwell, 601. The judgment will therefore he reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.


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    John T. Major et al. v. John Collins et al.
    1. Reversal of judgment—Restitution of property.—When a judgment or decree is reversed, the defendant is entitled to be restored to all things which he has lost thereby. Where land has been sold, and the plaintiff to the erroneous judgment or one standing in privity with him is the purchaser, and he still retains the ownership, the defendant may recover the specific property.
    2. Who may assert the right.—The right to claim a restitution of the property or its value, appertains exclusively to the defendant, and ho alone can assert it.
    Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed December 4, 1885.
    This was a petition, brought by John Collins against John T. Major and others, for a mechanic’s lien, for materials furnished and work done by Collins, under a written agreement between him and Major, in the erection of five buildings on five different lots belonging to Major. The petition was after, ward amended by making Edward A. Hartwell a defendant, and Hartwell thereupon filed his answer and cross-petition, claiming a lien by virtue of an assignment from Collins to him of the moneys due and to become due on the contract. This answer and cross-petition were afterward amended by striking out Hartwell’s claim for a lien on the premises, and inserting a claim for an equitable lien on the moneys to be recovered by Collins under the contract.
    On the hearing, on pleadings and proofs, a decree was entered establishing a lien in favor of Collins for $3,085, and declaring an equitable lien in favor of Hartwell upon said money to the extent of the entire amount thereof, and ordering a sale of the premises described in the petition, and a distribution of the proceeds in certain proportions between Hartwell and the owners of certain prior incumbrances on the lots. That decree being brought to this court by writ of error, was reversed for error in ordering a sale of all of the lots in solido: Major v. Collins, 11 Bradwell, 658. The facts at that time appearing in the record are sufficiently stated in the report of the decision, and need not be repeated here.
    It appears by the present record that several months before said writ of error was sued out, the master advertised said lots for sale under the decree, and after offering them for sale separately, without receiving any bids, offered the five lots for sale together, and sold them to Hartwell for $4,283.36, and executed to him the usual certificate of purchase, the sum realized being sufficient, after paying the costs and expenses of sale, to satisfy said lien, and leave $974.86 to apiply on said incumbrances.
    The master’s report was duly filed, showing the sale, and that the master, out of the proceeds, had paid the costs and the expenses of the sale, and also the amount of the mechanic’s lien, leaving the sum of $974.86 in his hands subject to the order of the court; and appended to the report was a receipt dated the day of the sale, signed by Hartwell’s solicitor, acknowledging the receipt from the master of the amount, principal and interest, due said Hartwell under the decree. An order was thereupon entered approving the sale and distribution.
    One John Zimmer then filed a petition claiming as assignee of the first incumbrance on the lots, and praying for an order on the master to pay him, out of the moneys remaining in his hands, the amount.of said incumbrance, and an order was afterward entered on said petition, directing the master to pay said Zimmer, out of said money, the sum of $645.32, the amount then due on said incumbrance.
    The cause having been re-instated in the court below, after the reversal of the decree an order was entered requiring Collins and Hartwell to file a supplemental petition, and such petition was thereupon filed, setting forth all the proceedings aforesaid, down to and including the reversal of the decree and the re-instatement of the cause below, and praying that a mechanic’s lien be granted as prayed in the original and cross-petitions; that Hartwell be allowed the costs paid by him, and be subrogated to the rights of Zimmer, so far as relates to the incumbrance held by him; that the master refund to Hartwell the surplus of $329.54 in his hands; that Hartwell have leave to surrender into court for cancellation his master’s certificate of purchase, and that the same be held for naught, and the same as if never issued; and for other, further and different relief, as the nature of the case might require.
    Answers were filed, and the cause was again heard on pleadings and proofs. The court, against the objection of the defendants, heard and considered the evidence taken before the master prior to the former hearing, including the evidence then heard in relation to the value of the lots and buildings. The defendants then offered to prove the relative value of the lots and buildings at the date of the hearing, but such evidence was excluded by the court.
    By the decree, the court found that Collins, was entitled to a lien amounting in all, including interest, to the sum of $3,590, to be apportioned equally between said five lots and buildings—that is to say, $718 on each, and that Hartwell had an equitable lien on said moneys to the full amount thereof ; that Collins had a first lien, for the use of Hartwell, on each of said buildings, and a third lien on each of said lots, for said sum of $718, and the proportion of each of the costs of suit. The decree ordered that Hartwell surrender into court, for cancellation, the master’s certificate of purchase, and that said certificate be forever held and esteemed for naught and of no effect or value whatever; that the master pay to Hartwell the sum of $329.52 remaining in his hands out of the proceeds of the former sale, and also that Hartwell be subrogated to the Zimmer incumbrance; that said lots and buildings be sold, and the proceeds, after paying the costs of suit, and the expenses of sale, be divided in certain proportions between Hartwell and the holders of said incumbrances, the amount applicable to the Zimmer incumbrance to be paid to Hart-well. Upon the entry of said decree, the defendants have again brought the record to this court by writ of error.
    Mr. DeWitt C. Jones, for plaintiffs in error;
    as to who may set the sale aside, cited Rorer on Judicial Sales, §§ 148, 149; Roberts v. Hughes, 81 Ill. 132.
   Bailey, P. J.

The sale under the former decree was made while that decree was in full force, and before any proceedings had been instituted for its reversal. Hartwell, the beneficial plaintiff, became the purchaser, and in part payment of his bid receipted for the full amount of the ■ decree, and the sale, as well" as the payment and satisfaction of the decree, being reported by the master to the court, was approved and confirmed.

■ How then were the rights of the parties affected by the subsequent reversal of the decree ? The principle has been very frequently declared, that when a judgment or decree is reversed, the defendant is entitled to be restored to all things which he has lost thereby. Where land has been sold and an innocent party is the purchaser, his title will not be disturbed, and in that case the money produced at the sale is all the defend, ant can claim to have restored. But where the plaintiff to the erroneous judgment, or one standing in privity with him, is the purchaser, and still he retains the ownership, the defendant .may recover the specific property. McJilton v. Love, 13 Ill. 486; McLagan v. Brown, 11 Id. 519; Fergus v. Woodworth, 44 Id. 374; Hannibal & St. J. R. R. Co. v. Brown, 43 Mo. 294; Corwith v. State Bank of Illinois, 15 Wis. 289; Reynolds v. Harris, 14 Cal. 668; Johnson v. Lamping, 43 Id. 293; Reynolds v. Hosmer, 45 Id. 616; Bank of the United States v. Bank of Washington, 6 Pet. 8.

But a right to claim a restitution of the property or its value appertains exclusively to the defendant, and he alone can assert it. Thus, it will be found, in all the cases where such restitution has been awarded, it has been done at the instance of the defendant, whose property had been sold under the judgment or decree subsequently reversed. In the case of McLagan v. Brown, 11 Ill. 519, above cited, the court say: “ Where an innocent party is the purchaser, only the money produced by the sale can be restored to the judgment debtor, without injustice to the purchaser; but, as a general rule, when the plaintiff in the erroneous judgment has purchased, he should restore the specific property, for it is his duty to make all the reparation in his power to one whose property he has wrongfully sold. But certainly no one but the defendant, or his assignee, should be allowed to complain, or claim any benefit on account of such reversal. Although he may reverse the judgment, the defendant may not choose to complain of or may even prefer to affirm the sale. It may be for his interest to do so. * * * * * We can not go to the length of saying that the title acquired by the plaintiff under the judgment is absolutely divested and defeated, as to all the world, by the reversal of the judgment. It is time enough to say that the purchaser acquired no title when the party injured complains.”

In the present case, the defendants have not sought to have the sale vacated, nor are they shown to have done any act manifesting an election on their part to question its validity. Having failed to obtain a reversal of the decree, except upon a technical ground not affecting the merits of the controversy, viz., the failure of the decree to apportion the lien among the several lots and buildings and to order them to be sold separately, and the decision of this court being adverse to them as to all the other points urged by them for a reversal, they were at liberty to affirm the sale, although they had succeeded in reversing the decree, and in the absence of any steps on their part showing a contrary election, they may perhaps be presumed to have done so. At any rate, until they had shown satisfaction with the sale by some affirmative acts of repudiation, Hartwell was in no position to call it in question ; and after the lapse of nearly two years and a half without any such steps on their part, it might possibly be held that the presumption of their election to affirm it was conclusive, or that they were barred by tlieir laches from now having it vacated.

The sale, so long as it remains in force, operates not only as a satisfaction of the decree, but as a satisfaction of the lien sought to be established, and it is therefore a bar to a further foreclosure of the same lien.

It should be observed that the supplemental petition does not, at least in terms, ask to have the sale set aside or the satisfaction of the decree vacated, but only for leave to Hart-well to surrender into court his certificate of purchase for cancellation, and an order that the same be held for naught, as if it had never been issued, and in this respect the present decree merely follows the terms of the prayer. It does not atíemj t to set aside the sale or the satisfaction, but orders Hartwell to surrender his certificate for cancellation, and decrees that it be forever held and esteemed as of no effect. The surrender o c the certificate for cancellation is a different thing from the ^ a-cation of the sale and satisfaction, and can scarcely be he’d» even by implication, to accomplish those results. It would then appear that, technically at least, the sale and satisfaction remain unaffected by the present decree, and that said decree establishes a lien for a claim which has been paid and satisfied, and directs a second sale of the same premises therefor.

But however this may be, it is clear that Hartwell was in no position to ask to have the sale or the satisfaction vacated on his own motion, and that until the defendants ask such relief, he must abide by the sale under the first decree. It follows that the present decree is unwarranted by the facts appearing in the record, and is therefore fundamentally erroneous. It also follows that the part of the decree which directs the payment to Hartwell of the surplus of $329.52, in the hands of the master, is erroneous. That fund equitably belongs to the holder of one of the incumbrances on the lots.

A number of other questions are raised by counsel for the plaintiffs in error, hut as the conclusions at which we have arrived as to the questions above considered, necessarily dispose of the case, we do not deem it necessary to notice them.

We would not be understood, in what we have said, as intimating an opinion that the defendants can, merely because the former decree has been reversed, receive back from Hartwell or Collins the money for which the lots and buildings were sold. We should rather incline to the view adopted in Green v. Stone, 1 Harr. & John. 405, that if money he paid on a judgment afterward reversed, it may be recovered back in an action for money had and received, unless it was equitably due at the time of such judgment or payment; that the defendant may resort to any equitable or eonscientious defense to repel the claim of the plaintiff, and may show the justice of his original claim.

The decree will be reversed, and the cause remanded for further proceedings.

Decree reversed.


author: Wilson J.

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    Franklin D. Cummings et al. v. Michael J. Davis.
    1. Replevin—Conditional sale.—The court is of opinion that the preponderance of the evidence supports the finding that the sale in question, was a conditional one and the judgment is undisturbed,
    2. Rescission op contract.—Where there was a conditional sale of a carriage to A, but the possession of the carriage was never in fact delivered to A but was always retained by the seller, though kept by him in the stable of A, the mere removal of the carriage to another place would not of itself be a rescission of the contract, and such removal could not he said to be a retaking.

      Appeal from the Circuit Court of Cook county; the Hon. John Gf. Rogers, Judge, presiding.
    Opinion filed December 4, 1885.
    This was replevin, brought by appellee,- Davis, against appellants and others, to recover the possession of a Landau carriage. The case was tried by a jury, resulting in a verdict for the plaintiff against the defendants, Cummings and Marsh, the suit having been dismissed by the plaintiff as to the other defendants at the trial. Damages were assessed for the detention of the property at $425, for which sum the plaintiff had judgment, the court overruling the defendant’s motion for a new trial. The defendants appealed to this court and assign various errors. The facts sufficiently appear in the opinion of the court.
    Mr. Albion Cate, for appellants;
    that appellee upon a rescission of the sale should have placed the parties in statu qxio, cited Brundage v. Camp, 21 Ill. 330; M. C. R. R. Co. v. Phillips, 60 Ill. 190; Young v. Bradley, 68 Ill. 553; Van Duzor v. Allen, 90 Ill. 499.
    Mr. C. M. Hardy, for appellee.
   Wilson J.

The record is very voluminous, and we shall not undertake to refer to the evidence in detail. It was claimed on the part of the defendants, Cummings and Marsh, that Beale & Dwelle, through whom they claimed title to the carriage, purchased it from the plaintiff, Davis, for $1,350 by an absolute sale; that they paid him therefor $600 cash, and some time thereafter gave him their note for the balance, $750, dating it back to the date of the purchase; that the carriage was thereafter kept in the livery stable of Beale & Dwelle, and was used in their business, they receiving pay therefor, though it was driven by Davis, who was in their employ on a monthly salary, and that it was generally called “Mike’s carriage.”

On the other hand, it was claimed b,y Davis that the sale was only conditional, and that Beale & Dwelle were not to he owners of the property or have any claim upon it until it was fully paid for; that meantime it ivas to he and remain the property of Davis who was to retain the possession and exclusive control over it until paid for.

The testimony was largely directed to this branch of the case, and was conflicting, but'the jury, in reaching the conclusion it did, must necessarily have found that the sale was conditional, and not an absolute one. This finding, we think, is supported by a preponderance of the evidence. The testimony of Davis is corroborated by other apparently disinterested witnesses, who testify to admissions of both Beale and Dwelle, to the effect that the carriage was to remain the property of Davis until fully paid for; and it receives still further corroboration from the control and acts of ownership, which, with their knowledge and consent, Davis continued to exercise over the property subsequent to the alleged sale.

Beale & Dwelle executed a chattel mortgage on the property in their livery stable to one Crowell, in which mortgage they included the carriage in question, Avithout, as Davis claims, his knOAvledge or consent. Cummings and Marsh took an assignment of this mortgage, and deriAre their title to the carriage through a sale on the mortgage. The evidence tended to show that CroAvell had notice of Davis’ claim to the carriage when he received the mortgage, and that Cummings and Marsh had like notice when they took an assignment of it. It Avas further claimed by Davis that the Beale & DavcIIc mortgage was only colorable and was given without consideration, to hinder and delay their creditors or the creditors of Dwelle. These and many other matters appearing on the record were controverted questions of fact, falling within the peculiar province of the jury to pass upon and determine under the evidence. We must assume that the jury who saAv the Avitnesses and heard them testify Avere better able to judge as to the Aveight of their evidence than we can be, and Ave can not say their finding was not Avarranted by a preponderance of the evidence.

It is argued by appellants, that if the sale of the carriage is to be regarded as a conditional sale, the retaking of the car_ riage by Davis amounted to a rescission of the contract, and he should have placed the parties in statu quo by returning, or offering to return, the consideration paid for it. It is not perceived that the rule in relation to the rescission of executory contracts has any necessary application to the facts of the present case. If the possession of the carriage was never in fact delivered to Beale & Dwelle, but was always retained by Davis, though kept by him in the stable of Beale & Dwelle, the mere removal of the carriage to another place would not of itself be a rescission of the contract, and such removal could not he said to he a retaking. The evidence tended to show that the carriage was in Davis’ possession before as after the removal, and whether this was so or not was a question of fact which the jnry presumably found in favor of Davis. The rights of the respective parties remained unaffected by the removal of the carriage.

It is contended that the charge of the court was erroneous and misleading, hut in what respect is not pointed out in appellant’s brief. By agreement of the parties the court instructed the jury orally, and with the exception of one or two slight inaccuracies of statement, not affecting the substance of the charge, we think it was a correct statement of the law applicable to the case and was not misleading.

Finding no material errors in the record the judgment of the court below is affirmed.

Judgment affirmed.


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    The Phenix Insurance Co. v. John B. La Pointe.
    1. Evidence—Insurance.—'Where, by the terms of apolicy of insurance, the insured was to use Ms best endeavors to save the property insured, in an action on the policy it was proper for Mm to testify as to what property he had in the store other than that covered by the policy of insurance.

      2. Evidence—-Agent’s report.—The report of an insurance company’s agent-, in which, in answer to the question contained in the application for insurance, as to incumbrances, the answer is “ no,” and the application is not signed by the insured, and was merely the report of the agent- to the company made subsequently to the time of the application, and not in the hearing or presence of the insured nor with his knowledge, does not bind the insured.
    3. Practice.—New trials will not be granted for slight errors in the giving or refusing of instructions where the verdict is clearly right.
    Appeal from the Circuit Court of Cook county; the Hon. Johe G. Rogers, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. Robert Rae and Mr. Johe S. Miller, for appellant.
    Messrs. Abbott, Oliver & Showalter, for appellee.
   Wilson J.

This was assumpsit, brought by appellee against appellant on a policy of insurance for $1,000, covering certain fixtures, billiard tables, liquors, etc., in appellee's saloon at South Chicago. Verdict and judgment for plaintiff for $1,000, from which the defendant appealed to this court.

We are of opinion that the case, as made by the plaintiff’s evidence, showed a cause of action, and that the defense was without legal merits. It is objected (1) that the court improperly refused to admit in evidence the report of the company’s agent, in which, in answer to the question contained in the application for insurance, “ Is the property mortgaged or otherwise incumbered?” the answer is “Ho.” As the application is not signed by the plaintiff, and this was merely the .report of the agent to the company, made subsequently to the time of the application, and not in the hearing or presence of the plaintiff, nor so far as appears with his knowledge, it did not hind him. It was not his declaration, nor did it constitute a part of the res gestee. The evidence was therefore properly rejected.

(2) Hor was there any legal ground of objection in allowing the plaintiff to testify as to what other property he had in the store other than that covered by tiie j'olicy of insurance. It was proper to show""all the surroundings, that the jury might be better able to judge as to whether the plaintiff used his best endeavors, as by the terms óf his policy he was required to do to save the property insured. The evidence was also competent as tending to rebut any inference that the fire was intentional on the part of the insured.

(3) It is objected that the plaintiff did not use due diligence in making proofs of loss. This objection finds no support in the evidence. On the contrary, he seems to have endeavored in good faith "to have his loss adjusted, and to have used all the diligence which could have been reasonably required of him under the circumstances. The fai'ure to obtain an earlier adjustment may, we think, quite as justly be referred, under the evidence, to a want of co-operation on the part of the company's representatives, as to any supposed want of diligence on the part of the plaintiff.

The assignment of errors also questions the action of the court in giving and refusing certain instructions, and modifying others. It is sufficient to say that, taken all together, the instructions laid down the law of the case with substantial accuracy. But if it were otherwise, and they were in some respects not technically correct, the merits of the case were so clearly with the plaintiff .we should not be inclined to reverse on that ground. It has been repeatedly held by the Supreme Court that new trials will not be granted for slight errors in the giving or refusing of instructions, where the verdict is clearly right. Chi. & W. I. R. R. Co. v. Dooling, 95 Ill. 202; Albin v. Kinney, 96 Id. 214; Lowry v. Coster, 91 Id. 182; Chi. & E. Ill. R. R. v. Rung, 104 Id. 646; Hubner v. Feige, 90 Ill. 208; Race v. Oldridge, Id. 250; Taylor v. Danville, O. & O. R. R., 10 Bradwell, 311; 75 Ill. 139; 83 Ill. 20. The court said: “ Where the evidence clearly sustains the verdict, this court never reverses for error in the instructions.” In the present case, the verdict manifestly executes justice. It is not claimed that the loss was not an honest one; the fire originated at a distance from the plaintiff’s premises; there is no proof of over-valuation of the property destroyed; and the loss was total. The judgment of the court below is therefore affirmed.

Judgment affirmed.


text:
    Delonas W. Potter v. J. A. Gronbeck et al.
    Guabanty—Revocation.—In the case of a lease with guaranty, one of the guarantors, whose signature was the second upon the guaranty, before the execution of either the lease or guaranty was completed by signing and delivery, revoked and withdrew from the transaction, and the lessor and lessees assented to such revocation before the execution of the instruments had been completed by delivery. Held, that such act of revocation was effectual and binding; that there was no joint liability as to the guarantors.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gamy, Judge, presiding.
    Opinion filed December 4, 1885.
    This was assumpsit, by the appellant, Potter, against the six appellees jointly, to recover some twenty-eight hundred dollars upon a guaranty in writing alleged to have been made by the defendants, whereby they became sureties for one Sylvan and wife to one McLean, for the payment by them of all rents which might accrue in the future under a lease bearing date ,i uly 23, 1883, whereby said McLean leased certain premises to said Sylvan for the term of ten years from Hovember 1, 1883. at a monthly rental of three hundred and fifty dollars ; which said lease was, after the making thereof, assigned by said McLean to the plaintiff. Pleas: the general issue, and a verified plea denying the execution of the guaranty and joint lia bility.
    On the trial before the court, without a jury, the plaintiff introduced the lease in evidence, and testimony of the genuineness of the respective signatures of defendants to the guaranty, the amount of rent due, and rested. The defendants thereupon introduced evidence tending to prove that while the matter of the execution of the lease and of the guaranty was in fieri, the defendant LeVin, whose signature was the second upon the instrument of guaranty, even after he put it there, and on the same day, but before it was signed by the other four guarantors, and before the execution of the lease was completed by delivery, went' to plaintiff, who was acting in the premises as the general agent of said lessor, McLean, and expressly revoked the contemplated guaranty so far as he was concerned ; that the Sylvans, who were to be the lessees, were notified of such revocation, and that they and the plaintiff acquiesced therein; but that neither of the other four guarantors who signed after LeYin, or the one who had signed previously, had any notice whatever of such revocation. The plaintiff introduced rebutting testimony upon the question of revocation. There was a finding and judgment for defendants, and plaintiff brings the record here by appeal.
    Mr. Franklin P. Simons, for appellant.
    Messrs. Blanks & Chytraeus, for appellees;
    that until accepted the guaranty may be withdrawn, cited Chitty on Contracts, 16; Offord v. Davis, 12 C. B. (N. S.) 748; Jordan v. Dobbins, 122 Mass. 168.
   McAllister, J.

If the execution of the lease and guaranty had been completed by signing and delivery, before the act of revocation on the part of Le Yin, by notice of his withdrawal given to both Sylvan, the lessee, and the lessor, we are of opinion that both said instruments being under seal, such act of revocation would have been nugatory and ineffectual. 2 Pars. on Con. 31, and cases in notes.

But it was shown, by a preponderance of the evidence, that Le Yin revoked and withdrew from the transaction before the execution of either the lease or guaranty was com¡fieted by signing and delivery; and that the lessor, through the plaintiff, then the authorized agent of the lessor, and the Sylvans, the lessees, assented to such revocation before the execution of the instruments or cither of them had been completed by delivery. At that stage of the transaction, we think it was entirely competent for Le Yin to revoke his mere act of signing an undelivered instrument of guaranty, he' having received no consideration whatever therefor. Afford v. Davies, 12 J. Scott, N. S. 104; E. C. L. 747; Hunt v. Roberts, 45 N. Y. 696; Brandt on Suretyship and Guaranty, § 114.

The other parties to the guaranty, who signed and delivered without any notice of Le Yin’s revocation and withdrawal, were not hound. At all events there was no joint liability and the court below v as justifiable in finding for the defendants. We find from examination of the supplemental hill of exceptions, obtained by appellant’s counsel, that the judge does not say that he did not take the evidence upon the question of the revocation into consideration, in forming his conclusions upon the facts, but he says he did not take it into consideration in tmnouncing his conclusions. The evidence was conflicting it is true, but upon a close scrutiny of it, we are satisfied that the clear weight and preponderance of it were with the defendants, and that the judgment below should be affirmed.

Affirmed.