text:
    Frank C. Smith et al. v. Frank B. Stafford.
    1. Instruction — Contract—Evidence tending to show abandonment of work. — Where it was incumbent upon appellee to show either a substantial performance of the terms of a contract within the time fixed or a sufficient reason for a failure, or a voluntary acceptance by appellants of the work as done, an instruction which withdrew from the consideration of the jury all of appellants’ evidence tending to show that appellee abandoned the work before its completion without good cause, was improper.
    2. Excessive verdict. — The verdict in this case is excessive as certain payments by orders were not deducted from the amount of appellee's bill.

      Appeal from the Circuit Court of Ivnox county; the Hon. Arthur A. Smith, Judge, presiding.
    Opinion filed February 29, 1884.
    Mr. K. 0. Hunt and Mr. George W. Thompson, for appellants;
    that a contract must be completed before recovery can be had, cited Hensell v. Erickson, 28 Ill. 257; Guerdon v. Corbett, 87 Ill. 272; Knickerbocker Life Ins. Co. v. Seeleman, 83 Ill. 446; Bassett v. Child, 11 Ill. 569; Holmes v. Stummel, 15 Ill. 412.
    Mr. F. S. Murphy, for appellee.
   Pleasants, J.

Appellants having contracted with the Peoria & Farmington Pail way Co. to grade that portion of its road lying between Monmouth and Keithsburg, sublet a section of three miles to the appellee, who, in September, 1882, brought this action before a justice of the peace to recover a balance claimed for his work done thereon. The trial, on appeal to the circuit court, resulted in a verdict for plaintiff for $175, on which, after a motion for a new trial had been overruled, judgment was entered, and defendant appealed.-

Appellee’s agreement, made June 14, 1881, was to do the work contemplated and receive payment therefor in the manner and according to the terms, conditions and specifications of thejoriginal contract, of which a printed copy was attached, and its provisions, as far as applicable, made binding upon him.

This provided, among other things, that the work should all be done subject to the general direction and orders of the company’s engineer as given from time to time, and to his satisfaction and acceptance; that between the first and tenth days of each month the contractor should furnish to the company his time book, verified, with duplicates of all orders issued by him against it in payment for labor, which orders the company might pay and charge to him, and that he should not pay for any labor except in such- orders, although he might cash them himself after they were issued and properly .indorsed; that about the first day of each month approximate estimates of tlie work done during the one preceding should be made, and on or before the twentieth, upon the engineer’s certificate thereof, paid for to the contractor, less fifteen per cent., and the amount of all labor orders issued by him during that month. The fifteen per cent, was to be retained until the final completion of the contract and acceptance of the work, which was to be commenced within twenty days and completed on or before the first day of October, 1881.

Appellee commenced the work in the latter part of June and continued until some time in the first week of September, when he left it unfinished and never resumed. He claims that he had substantially finished it as far as the grade stakes had been set, and that the engineer, although requested by him, neglected to lay out further work, so that he was compelled, without his fault, to leave it as and when he did. He further claims that he had subcontracted a portion to J. A. Giles, who continued to work until October 1st, when he and all the other contractors were, by the company and with the consent of appellants, ordered to suspend; but it is not claimed that he ever did, by himself, through Giles or otherwise howsoever, complete the work he contracted to do.

Appellants set up these defenses: First, that they had paid him nearly all that he could be entitled to in any view of the case, by labor orders issued to him and his men, and had the right to pay the small balance remainingyw rata to the men; and secondly, that he abandoned the work before it was completed and before the time fixed by the contract for its completion, without any justifying cause, and for no reason except that he found it to be, as he conducted it, unprofitable; that he had not substantially finished it to the point where he was when he left, and that the engineer had then complied with his request and staked out a thousand feet beyond it; that Giles’ work was done under contract, not with appellee, but with appellants, made after and because appellee had refused to go on, and that they paid Giles in full.

Smith testified that appellee refused to proceed because he was dissatisfied with the engineer’s measurement of what he had done, and not because more work was not laid out for him; and the engineer, that he staked out, for grading, an additional thousand feet very soon after he was requested and before appellee left; which the latter denied.

What the jury thought of this testimony, or whether they deemed it important to find as to the fact thus disputed, may be doubted, since they were instructed on behalf of the plaintiff, “ that if they believe, from the evidence, that Giles was a subcontractor under the plaintiff, Stafford, and entered upon the work belonging to Stafford, with Stafford’s consent, and with the consent of Smith & McFarland, and continued to so work on said job until the 1st of October, 1881, and that on that day there was a general order suspending all work on the line of the road, and Giles was so notified as the order of the railway company, and assented to by defendants, Smith & .«.McFarland, and in that way prevented the plaintiff from prosecuting the work and finishing said contract, then the plaintiff is not in default, and is entitled to recover any balance due on the contract for work already done, and the jury will find for the plaintiff.”

Being bound by his contract to complete the work on or before October 1,1881, it is manifest that an order of suspension issued on that day could not have abbreviated the time allowed, nor,- of itself alone, have deprived him of any opportunity or means of fulfillment to which he was entitled under that contract. So that if he was then in default, of whatever character or to whatever extent, the order alone could not relieve him. Flor do we perceive the bearing, in .this connection, of the subcontract with Giles and his entering and continuing upon the job as stated in the instruction, though made and done with defendants’ consent; for these facts would not work an extension of the time for performance, nor any other change in appellee’s contract with them. The proposition, then, in substance, is, that if Giles was a subcontractor under plaintiff] and worked on his own job, with defendants’ consent, until the time fixed for the completion of plaintiff’s contract with them, and then the company, with their assent, ordered a general suspension, they are liable to plaintiff for all that had been done under his contract with them, no matter how far short of compliance with it or who was responsible for such shortcoming. We think it was incumbent on him to show either a substantial performance within the time fixed, or a sufficient reason for the failure, or a voluntary acceptance by appellants of the work as done; and therefore that this instruction was too broad and unqualified. It withdrew from the consideration of the jury all the evidence on the part of the appellants tending to show that he abandoned the work before its completion and without good cause.

We discover no other error, in respect to instructions, of which appellant can complain. The one numbered 3, asked by them and refused, was in substance a repetition of another which was given, and the one numbered 6 was not applicable to the case between these parties without material qualification.

For proof of the amount of his claim, except for what was done under Giles, appellee relied solely on a statement of the account given him, a month or two after he quit, by appellant Smith — calculated, on the engineer’s final estimate of the amount and class of work done, at $1,111.11, and showing, by deduction of “15 per cent.” and payments for July and August, a balance in his favor of only $3.82. (The abstract, by error in addition and subtraction, makes, and appellee understood it to be, $2.02 the other way.) He does not deny the payments so shown, but claims that the contract having been terminated by their own fault, they have no legal right to retain any portion of what had been earned by him; and the 15 per cent, shown by this statement was $165.93. It is conceded that the statement was wrong in that it calculated certain of the work mentioned at 10c per cubic yard instead of 10-0-, the price fixed by the contract, making an error against him of $19.16. It is also shown beyond doubt that appellants-paid Giles’ men all that was earned by him except $28, of which appellee claims one half, or $14.

He would thus be entitled to $1,144.27, less the amount of payments stated ($341.86 for July and $600 for August), $941.86, being $202.41, which without interest exceeds the verdict by $27.41.

But it appears from the evidence that the payments for August as given in this statement were considerably less than were actually made. This is shown by the positive testimony of Smith, confirmed by the stubs from the order book which were produced, showing the name of the payee and amount of each order with the month for which it was issued, and aggregating $737.90. He issued every one of them, but thinks he did not have the stubs when he made out the statement; and the round even number ($600) would indicate that he made it from recollection only and without attempting to be accurate — -just large enough to show, as he thought, that nothing was payable to appellant, and small enough to be certainly within the true amount. There was no contradiction of his testimony on this point, nor anything in the case to justify the slightest doubt of its truth.

Counsel argue, however, that these orders were issued without the consent of appellee and therefore should have no effect as against him, and that it was necessary to show also that they had been paid or accepted by the railroad company.

As has been stated, the original contract provided that payment to the laborers should be made in this way and no other, and that the orders should be reported monthly to the company and be first paid out of the amount due the contractor as far as it would reach. This was required in order,' doubtless, to avoid the annoyance of labor liens. The right and duty of appellants to issue them grew out of the contract, and not out of the statute which counsel labors to show would not sustain them. The subcontract of appellee recognized and assented to this provision. Appellee so understood it. He testified that he furnished appellants from month to month his time roll showing the names of all his. men, the wages per day and number of days work of each — to enable them to comply with this requirement and to issue these orders. He understood that they were issued. He speaks of this arrangement as the settlement he made with his men and says it was all the settlement that could be made. It appears also that he himself received one of these orders for July, for $30, and he does not intimate that it was not paid. Not one of them is shown to have been returned to appellants.

These facts sufficiently prove that they were issued with the knowledge and consent of appellee, and prima facie that they were paid by the company out of appellants’ funds.

Smith also testified, without contradiction, that appellants paid the further sum of $9.30 on account of appellee for board and shovels. From the amount of appellee’s work, $1,144.27, there should have been deducted the amount of these payments, — by orders for July, $341.86, and for August $737.90, and by cash $9.50, in all $1,089.26, — which would leave a balance of only $55.01, or $119.91 less than the verdict. For this excess in the finding, wholly unsupported by evidence, the motion for a new trial should have been allowed.

The judgment of the circuit court is reversed and the cause remanded.

[Reversed and remanded.


source: Caselaw Access Project

author: Pleasants, J.

license: Public Domain

text:
    August F. Albright v. Joseph Bruner.
    1. Bences. — When a general law prescribes what shall be deemed a “sufficient” fence, an agreement requiring a “ sufficient ” fence, without a more particular description, will be held to refer to and adopt the standard prescribed by such general law.
    2. Agreement as to eence. — A partition fence may be built and the statutory height maybe waived by agreement, in which case the agreement would control as to its sufficiency.
    3. Instruction. — An instruction that “ all he is required to prove is that his fence then and there was sufficient to turn ordinary stock.” Held, that although the case would not be reversed for the giving such instruction, yet the court is of opinion that the terms “not extraordinarily breach y ” are preferable in point of clearness to “ordinary.”
    4. Yerdict against the weight op evidence. — Where, after a fence had been erected by appellant, he and appellee’s grantor agreed to “keep in repair” or “keep up ” each an allotted portion of the fence, which agreement was acquiesced in by appellee when he obtained title. Held, that in an action brought by appellee for damages occasioned by the fence not being in proper repair, the burden would be upon him to show that the damages were not due to his own neglect to keep the fence in proper repair. As the evidence preponderates clearly in favor of appellant’s part of the fence being good and sufficient, the verdict is set aside as contrary to the evidence.
    Appeal from the Circuit Court of Lee county; the Hon. John Y. Eustace, Judge, presiding.
    Opinion filed February 29, 1884.
    Messrs. Barge, Bathbun & Barge, for appellant.
    Mr. A. K. Trusdell, for appellee.
   Pleasants, J.

On appeal from a justice of the peace appellee here recovered in the circuit court a judgment upon verdict for $35, against appellant, for damages by the latter’s cattle to his crops.

The parties owned adjoining lands divided by a fence eighty rods in length, which had been built by appellant some seventeen years before the trial. A verbal agreement was afterward made between him and appellee’s grantor which speci- ■ lied the parts to be maintained by each and provided that they should be kept “in repair.” This agreement being made known to appellee when he acquired his title, was acquiesced in by him.

There is no dispute that on the occasions in question the cattle got through appellee's part, but. the controversy is whether it was at the time in such repair as to give him a right of action for damages so done.

It was confessedly an inch or two short of four feet in height, and the point having been saved by instructions asked and refused, it is contended that this fact alone was a complete and conclusive defense under sections 2, 20 and 21 of Ch. 54 R. S. 1874. Counsel cite T. & W. Ry. Co. v. Thomas, 18 Ind. 215, and Enwright v. S. F. & S. J. R. R. Co., 33 Cal. 230, to the effect that when a general law prescribes what shall be deemed a “sufficient” fence, a special statute, and by parity of reasoning an agreement, requiring a “sufficient” fence, without a more particular description, will be held to refer to and adopt the standard prescribed by such general law. We are not disposed to question the soundness of this construction, although in Crawford v. Dupuy, 17 Cal. 308, it was held that such a contract required a fence of the particular character described by the statute “ or at least an inclosure equivalent in its capacity to exclude cattle.” Nor are we prepared to hold that See. 2 of Chap. 54, above referred to, does not apply to all fences that are now required by law, that is, to outside fences in those localities where stock are lawfully allowed to run at large, and to partition fences, unless its application is waived by the parties. These questions, however, in our judgment, do not arise upon this record, because of their agreement. That they might thereby waive the statutory requirement as to height was expressly held in the case cited from the 33d Cal. supra, and that in this State a partition fence may be so established was assumed as clear in D’Arcy v. Miller, 86 Ill. 102; and in McCormick v. Tate, 20 Id. 337-8, in which case the agreement would control as to its sufficiency. Here, as already stated, it was so established after it had been erected by appellant. It was composed of different materials in different parts. Appellant was to maintain twenty rods, in part of hedge, at each end, and appellee the forty between, which was made of posts and boards. What was its height when so established or when appellee acquired his title and assumed his obligation is not shown, nor does it appear that it was less when the cattle got through it. The evidence as to the terms of the agreement does not show it was to be maintained as a “legal,”or “sufficient” fence, but only that the parties were to “keep up” (as appellant stated it) or “keep in repair” (according to appellee) their respective parts of the one then standing. From which it would seem that they did not contemplate a fence strictly of the height prescribed by the statute, but simply that the one then standing should be kept in such repair as to make it, irrespective of its height, reasonably sufficient to turn stock not extraordinarily breachy.

The language of the instruction given for plaintiff touching this point, was that “ all he is required to prove is that his fence then and there was sufficient to turn ordinary stock.”

It is true that in C. & A. R. R. Co. v. Utley, 38 Ill. 413, the Supreme Court held such instruction properly refused, saying: “A good and sufficient fence must be, not merely one which will turn ordinary stock, for a slight barrier might do that, but one that will turn stock even though, to some extent, unruly.” "We do not perceive any clear difference. We take it, ordinary stock is to some extent unruly — at least, ordinarily breachy. The Supreme Court itself, in later cases, has treated the phrase “ sufficient to turn ordinary stock” as fairly expressing the law. Thus, in Scott v. Wirshing, 64 Ill. 102, the only reason given for holding it was not error to refuse such an instruction in that case, was that the law was sufficiently given in the one preceding it, which used instead, the terms “stock not breachy.” And in Scott v. Buck, 85 Id. 336, they say: “The real question for the jury was whether the fence was good and sufficient, regardless of its height, to turn ordinary stock. If it was, then the plaintiff was entitled to recover; otherwise, not.” Stock that is “ordinary” in this respect must be such as is not extraordinarily unruly or breachy, and vice versa. We would not, therefore, reverse the judgment for the giving of this instruction, although we think the terms “not extraordinarily breachy” preferable in point of clearness to the term “ ordinary.”

But we reverse it because the verdict was against the evidence, and ought to have been set aside for that reason.

The burden was upon the plaintiff to show that the damages sustained were not occasioned by his own neglect to keep the fence in proper repair according to the agreement. It is clearly shown that the defendant was not in fault; his part of the fence was good and sufficient; the cattle never got through it, but always through that of the plaintiff; and further, that they were not breachy. The inference would be that plaintiff’s part of the fence was insufficient to turn ordinary stock. And such is the overwhelming weight of the evidence. His own description of it at the place of the breach is that “it was a three board fence, a good strong fence, nearly four feet high, posts eight feet apart, the lower edge of the bottom board was about nine inches from the ground, boards six inches wide and about nine inches apart.” Several other witnesses on his part concur in this description of the height, and the materials and their arrangement; but he alone speaks of its strength or sufficiency, and he, as is seen, only in general terms and as matter of opinion or conclusion. On the other hand, the defendant, his three sons and three other witnesses who, so f§r as appears, are wholly disinterested, testify to the contrary and give their reasons in detail. It was old and worn out. Some of the posts were rotted off and propped up in some places by small sticks or pieces of boards. Some of the boards had been broken and pieces nailed on. Emmert said he “wouldn’t trust it to save anything,” and Charles Al-bright that he “ could pull over three or four panels.” Where the cattle got through the fence was found down but no board was broken and the center post was rotted off'. As to these particulars of its defects, there is no contradiction. A fair explanation of the trouble would seem to be, that there was inviting pasture on plaintiff’s side, that the fence was so low that cattle not breachy would attempt to graze over it, and that the rotted posts could not resist the pressure.

On this subject there can hardly be said to have been a conflict of testimony. It is one witness interested to the fullest possible extent in the event, speaking in general terms and by way of opinion, against “ seven men who render a reason,” of whom six are without interest and three wholly unbiased. What can be said of this finding more favorable than that it was capricious? If a verdict is ever to be set aside as contrary to the weight of evidence this appears to be a proper case.

The ruling of the circuit court on the question of recoupment is approved, but for the refusal to set aside the verdict as against the evidence and grant a new trial, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Benjamin Burt et al. v. Daniel W. Blake.
    1. Levy — Property in goods. — An officer, who by virtue of a valid execution or other lawful warrant has taken the goods of the defendant therein, has a sufficient property in them to maintain trespass against a wrongdoer; but a wrongful possessor can not maintain it against the true owner or one who has the right to immediate possession.
    2. Trespass for retaking goods — When liable. — When an officer tabes the property of a stranger to the writ which is in the possession of certain parties, and they, as agents óf the owner, retake the property for him without a breach of the peace, they can not be made liable therefor in an action of trespass at the suit of the officer. And if either but only one of the parties was such agent, the judgment against him jointly with another who might he guilty would be erroneous as to both.
    Appeal from the Circuit Court of Livingston county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed February 29, 1884.
    Messrs. Wallace & Terry, for appellants.
    Mr. W. T. Ament and Mr. S. S. Lawrence, for appellee.
   Pleasants, J.

On January 20, 1882, appellee, a constable, having several executions against appellant Dodwell, indorsed on each a levy upon about five hundred bushels of corn and a buggy loaded in a car of the Wabash, St. Louis & Pacific Bailway Company at Cornell, in the county of Livingston, as the property of said appellant; but whether he took actual ¡possession or had control of it is disputed, and upon that point the evidence is conflicting. The car containing the corn and buggy was shipped out on the evening of the next day, and as appellee claimed, by direction of' appellants after notice of the levy. Thereupon he brought this suit in trespass, the trial of which upon the general issue resulted in a verdict against the defendants for $342. The court overruled their motion for anew trial and entered judgment upon the verdict, from which they took this appeal.

The evidence preserved in this record shows clearly and without any substantial contradiction that the corn in question was never the property of Dodwell, nor in his possession at the time of the alleged levy.

He had been residing for two years at Arkadelphia, Arkansas, but about ten days before had returned to Livingston county where he previously resided, and having transacted some business there and at Chicago was about to leave for his home. It appears .that one Francis Carpenter, who was engaged in the livery and transfer business at Arkadelphia, had written to him while here to buy some corn for his (Carpenter’s) account and for that purpose procured and sent him a draft for $250, payable to his order; that Dodwell obtained the money upon it from S. E. Morrow, a banker at Cornell, which he delivered to appellant Burt, who was a grain buyer there, with the request that he would make the purchase for Carpenter; that Burt accordingly bought the corn in question of G. W. Quaif, stating at the time that it was for Carpenter; that he loaded it in the car for shipment to Carpenter, taking the railroad company’s receipt to that effect; that Dodwell was not present when it was loaded or when the receipt was taken, nor had any agency in the purchase of it except as above stated; and that it was shipped to and received and used by Carpenter as his corn.

These several transactions were positively testified to by all the parties to each, respectively, and not one of them was contradicted as to any particular relating thereto. Some of them were further proved by the written evidence — the draft, the receipt and the way bill, a copy of which was introduced by the plaintiff — and all were of such a character and so recent that the witnesses could not be mistaken or forgetful concerning them. They were natural, probable, sequent and mutually corroborative. It seems impossible to entertain a doubt in regard to either of them.

From a few collateral circumstances plaintiff attempted to infer fraud and raise some suspicion as to the real ownership. But these at most tended only to impeach the credibility of Dodwell, whose testimony was not at all necessary to establisli either of those transactions as stated, and where not fully explained were too inconclusive and trifling to be relied on for any purpose.

To maintain this action the plaintiff must show that at the time of the taking he had possession of the property, actual or constructive, and that it was rightful as against the defendant. 2 Greenl. on Ev., § 613; Cannon v. Kinney, 3 Scam. 9; Dunning v. Fitch, 66 Ill. 51; Miller v. Kirby, 74 Id. 242. And this the defendant may disprove under the general issue. 1 Greenl. on Ev., § 625. Possession alone being.faeie evidence of title (Bergen v. Riggs, 34 Ill. 170; Brownell v. Dixon, 37 Id. 197) is sufficient as against a wrong-d_oer_or one who can show no better right. 2 Greenl. on Ev., § 618; Gilson v. Wood, 20 Ill. 39, 40; Miller v. Kirby, supra.

An officer who, by virtue of a valid execution or other lawful warrant, has taken the goods of the defendant therein, has a sufficient property in them to maintain it against a wrongdoer. Garner v. Willis, Breese (Beecher’s ed.) 370; Dunning v. Fitch, supra; Becker v. Dupree, 75 Ill. 168; Tuttle v. Robinson, 78 Id. 334. But a wrongful possessor can not maintain it against the true owner, or one who has the right to immediate possession. 2 Greenl. on Ev., § 618; Searles v. Crombie, 28 Ill. 396. And an officer who takes the property of a stranger to the writ is himself a trespasser. England v. Clark, 4 Scam. 486; Gauche v. Mayer, 27 Ill. 134; Hessing v. McCloskey, 37 III. 341. More especially where at the time of the-taking it is not even in the possession of the defendant in the writ. Tuttle v. Robinson, 78 Ill. 334.

Here the writ authorized appellee to take only the property of Dodwell; and having taken that of Carpenter, which was in the possession of Burt or of the railroad company for him, if appellants as agents of the owner retook it for him without a breach of the peace they cannot be made liable there-’ for in an action of trespass at the suit of the officer. And if either but only one was such agent the judgment against him jointly with another who might be guilty would be erroneous as to both. Grand v. Van Vleck, 69 Ill. 478.

In this view it is unnecessary to consider the validity of the levy, or the time, in reference to it, when Burt got the railroad company’s receipt, about which question is made in the argument. But if the latter had been material we should hold that evidence of what the station agent said about it, after it was given and out of the presence of the defendants, was improperly admitted. So also as to what he said Burt told him; it was all hearsay.

The third instruction for plaintiff was erroneous in omitting from the hypothesis the finding of a valid levy made, and the modification of the fourth asked by defendants, in implying that fact. The finding of a valid levy was essential to the plaintiff’s case, and whether it had been made, which was disputed upon the evidence, was a question for the jury under proper instructions as to what would constitute a valid levy.

hior is it important now to consider the question of Burt’s agency in removing the buggy, since the proof showed it to be worth only $110 or $115; so that the verdict must have included the corn also, and therefore, to the extent of two thirds of the amount found, was so clearly against the law ánd the evidence that it should have been set aside. For the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    William Ennor v. Galena & Southern Wisconsin Railroad Company et al.
    1. When equity -will relieve by awarding- a new trial. — Complainant agreed witli a certain company to take and pay for certain bonds and stock upon condition that one hundred of such bonds should be subscribed for on like terms. The company brought suit upon the subscription, averring that one hundred of the bonds had been so subscribed for. But in fact only ninety-two bonds had been subscribed for on like terms. The officers of the company included in the one hundred, which they testified had been subscribed for, bonds subscribed for on different terms. Complainant was not in a position to know or ascertain the truth except from information by the officers, and this information, being false but not improbable, deceived him. Judgment was rendered against complainant. A year or so after the judgment, complainant learned the truth. Held, that this is a case in which equity will relieve by awarding a new trial. The doctrine of res adjudicata can have no just application. The company can not be heard to charge as appellant’s fault or negligence, that he believed its officers, and failed to insist on the trial, upon the introduction of the other subscription papers.
    2. Injunction bestbaining collection of judgment at law.— Where the company after complainant’s subscription and before judgment, by its own voluntary and wrongful act became and ever since was unable to deliver to complainant the bonds and stock so subscribed for, having hypothecated them, complainant would he entitled in equity to an injunction restraining conditionally the collection of such judgment at law.
    Appeal from the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.
    Opinion filed February 29, 1884.
    Mr. R. H. McClellan and Messrs. D. & T. J. Sheean, for appellant;
    that every vendee of property is entitled to the article he purchased even after judgment for the purchase price, cited Freeman on Judgments, § 237; Mecum v. P. & O. R. R. Co., 21 Ill. 533; Stoolfire v. Royse, 71 Ill. 223.
    As to when relief in equity will be granted against a judgment at law: Holmes v. Stateler, 57 Ill. 211; Brown v. Luehrs, 79 Ill. 579; Gregg v. Brower, 67 Ill. 532; McGahn v. Ford, 68 Ill . 215; Freeman on Judgments, 2d ed., § 507; Hubbard v. Hobson, Breese, 149; Shinkle v. Letcher, 47 Ill. 217; Foster v. Wood, 6 John. Ch. 87; Lansing v. Eddy, 1 John. Ch. 51; Davis v. Tileston, 6 Howard, U. S. Rep. 119; Wilday v. McConnel, 63 Ill. 270; Weaver v. Poyer, 79 Ill. 422.
    Mr. M. Y. Johnson and Mr. J. S. Baume, for appellee;
    as to res ac^vdieata, cited Rogers v. Higgins, 57 Ill. 244; Kelly v. Donlin, 70 Ill. 378; Briscoe v. Lloyd, 64 Ill. 33; Hicks v. Chapin, 67 Ill. 375; Sanders v. Jednings, 2 J. J. Marsh, 513; Howell v. Goodrich, 69 Ill. 556; Mellendy v. Austin, 69 Ill. 19.
   Pleasants, J.

This was a bill filed by appellant to restrain conditionally all proceedings for the collection of a judgment recovered against him by the railroad company and assigned to the iron company, and for a new trial. On final hearing upon the pleadings and proofs the circuit court found its allegations unsustained, and dismissed it for want of equity. He appealed from this decree, and here assigns it for error.

It appears that he subscribed for eight bonds and forty shares of stock of said railroad company, under a paper of which the following is a copy: “We, the undersigned, hereby agree to take the number of first mortgage bonds and shares of stock of the Galena & Southern Wisconsin Railroad Company set opposite our names, and to pay for the same at the rate of six hundred and fifty dollars in cash for each one thousand dollar bond and five shares of stock, on demand being made by the secretary of the company. The money to be deposited in one of the banks of Galena as collected, and left as a separate fund to be used for building and equipping an extension of the Galena & Southern Wisconsin Railroad to Wingville. This subscription not to be binding unless one hundred of said bonds shall be subscribed for. Galena, February, 1877.”

On this subscription the railroad company brought its suit, averring that one hundred of said bonds had been subscribed for “ under said agreement,” and that defendant had refused to pay on demand duly made; and at the June term, 1879, of the Jo Daviess Circuit Court, recovered a judgment for $6,568 damages, and for costs. A fi.fa. having been issued thereon and returned unsatisfied, a ca. sa. was sued out, July 11,1879, upon which the defendant was imprisoned for about fifteen months, and until released on bail in proceedings for his discharge under tlieinsolvent debtor’s act, which are still pending. After such release he filed the bill herein, alleging that he was then first informed of the facts therein set forth in detail as grounds for the forms of relief alternatively asked, and which, generally stated, are: First, that the railroad company, after his subscription and before judgment, by its own voluntary and wrongful act, became, and ever since has been and still is,. unable to deliver the bonds and stock so subscribed for; and Second, that the judgment was obtained by accident, or by fraud of the company, without his fault in respect thereto.

The evidence preserved in the record shows, and it is ad-" mitted, that ever since June 18, 1878, said railroad company has been without control of any of said bonds; that on that day it hypothecated all it had; that under a decree of foreclosure against it, of May 3, 1879, for all the mortgage bonds it had executed, all its tangible property and franchises were sold and thereupon a new organization was effected, since which time it has been wholly without property and unable to issue or deliver, much more to secure, any stock or bonds whatsoever. In short the corporation was thereby to all intents, practically extinguished. Wherefore complainant prayed that all proceedings to collect said judgment b; enjoined until the bonds and stock so subscribed for shall be produced, ready for delivery upon such collection or payment.

The answer offered is that this inability was a defense which ought to have been made upon the trial; that before the filing of this bill the complainant never made demand, nor ever? offered nor now offers, to pay for these bonds; and that in fact he might have had them of the iron company, if he had made demand and offered to pay for them, at any time before April, 1880. And it was shown that the iron' company, having held twelve of these bonds, did somehow, notwithstanding they had been proved up before the master in the foreclosure case and merged in the decree therein, retain possession and had them at the time of the trial in the hands of the plaintiff’s attorney, to be produced if required. But it also appears that in April, 1880, it took in lieu of them the amount found due upon them, in stock of the new organization, and then sold said stock to the Chicago & North Western Railway Company.

While it may be that the inability of the plaintiff to deliver the stock and bonds, if properly shown, would have been a good defense, the failure to show it could have no further effect than to warrant the verdict as against that objection, and to make the judgment thereon, so long as it remains in force, an adjudication of the fact that the plaintiff did then have control of and was ready to deliver them upon receipt of the price or of the judgment therefor. But the effect of the judgment -for the price was to consummate the sale of these bonds and vest the title to them in the defendant, subject only to the right of plaintiff as vendor to retain possession until its payment, with all risk of their loss or destruction without its fault. The company then became trustee, holding them for the defendant, to be delivered upon such payment, and was bound to take ordinary care for their preservation for that purpose. They were not its property, and therefore not liable for its debts. It was under no more obligation or necessity, and had no more right to hypothecate or otherwise convert or dispose of them for its own use without consent of the defendant than any other property not its own. Hence any such disposition was voluntary and wrongful. Before the judgment, such voluntary act, by which they were put beyond reach of the defendant even upon payment of their price, would at law have suspended the right to demand such payment. Bor payment and delivery 'were mutual and concurrent obligations, and it is a rule of universal application to contracts imposing such, that neither party thereto can require performance by the other while he is himself unable, through his own voluntary act, to perform on his part. And after judgment it would be liable, even at law, upon its collection or payment, for the damages for non-delivery. But equity will look to substance and disregard form. The fact that the evidence of plaintiff’s right to the price has been changed from contract' to judgment, which gives it power at law to enforce payment without concurrent delivery; in the view of equity will make no difference. That of which the plaintiff demands payment is still the price, and the obligation to deliver the thing sold is in equity still concurrent. Another reason shown for not leaving the defendant to his right of action at law for damages for non-delivery upon payment, is that the plaintiff is entirely insolvent. Hor, having voluntarily put it out of its power to deliver the things sold, in specie, should it be permitted to claim the benefit of their" depreciation, if any, since the sale. It would not be so permitted, at law, before judgment, and ought not, in equity, after.

Hor should the fact that the defendant did not make demand, or aver his willingness now to pay for the bonds upon their delivery, be regarded as at all important. It is conceded that since April 1880, delivery by the railroad company or the iron company has been impossible, and the inability of each has been shown to be the consequence of its voluntary act. Such demand and offer, then, would have been altogether idle. His unwillingness, if a fact, was and is no legal hindrance to the company. It has a judgment against him, and while it remains in force he can have no will as against its operation. Its collection can be and is being attempted to be enforced, legally, without regard to his will, and therefore the company can not urge, as a bar to its restraint by equity, that he does not show himself willing.

Although no strict precedent for this relief here asked has been shown by counsel for appellant or found by the court, upon principle we are unable to find in the record any defect in his title to it.

In respect to the other — the granting of a new trial — we think the authority both' clear and abundant.

It appears that the railroad company never had a legal cause of action against appellant, for the reason that only ninety-two at the most, and not one hundred, of the bonds mentioned in his subscription as required by its condition, were ever subscribed for. The evidence is full, clear and uneontradicted that before the suit in question was brought and while the company was pressing appellant for payment, its president repeatedly told him the number required to make his subscriptiónjjbinding had been taken; that the only subscription paper produced on the trial was the one signed by appellant, which showed only seventy-three subscribed for; that the ex-secretary of the company positively testified that one hundred had been in fact subscribed for and that the number required in addition to those shown on the paper produced were shown on other papers in its possession; that only two other papers, subscriptions for these bonds, were ever in existence, which were produced and identified on the hearing of this cause; that one of these showed only nineteen bonds thereby taken and the other only ten; that the lattei’ was in the words and figures following, to wit:

“Galena, April 13, 1877.

“ We the undersigned hereby agree to take the number of first mortgage bonds, of one thousand dollars each, of the Galena & Southern Wisconsin Railroad Company, set opposite our names, at sixty-five cents on the dollar, and pay for the same on demand being made by the secretary of the company, at any time after said railroad is graded to a point within five miles of the village of Montfort, Wisconsin. The above to be in force only until September 20, 1877;” that Montfort,” here mentioned, was anothername for the “ Wing-ville” mentioned in the other paper hei’ein above copied; that work on this extension finally ceased before September 20, 1877, and said railroad was never graded to a point within five miles of said village; that nothing was ever paid by the subscribers, who were residents of said village, or claimed by the company upon the subscriptions to this paper or any or either of them, and that complainant’s subscription, if it had been paid when first demanded or at any other time, would not have sufficed to grade the road to a point within five miles of said village.

Complainant’s agreement was to take and pay for the bonds and stock subscribed for by him only upon condition that one lxundi’ed of such bonds should be subscribed for on like terms. The ten shown on the paper last above copied were not so subscribed for, nor did those sxxbscriptions ever become available for any purpose, either to the company or to the other subscribex’s. They wex’e made upon substantially diffex’ent terms, which were never complied with on the part of the company.

These circumstances fairly charge it with knowledge, thi’ough its officers, at the time the lawsuit in question was bi'oxxght and tried, of the fact that only ninety-two had been subscribed for on the terms of complainant’s sixbscription, and that the latter was therefore not binding upon him. Indeed the same ex-secretary whose testimony on that trial has been already referred to, testified on the hearing of this cause that he never had any faith in the subscriptions for those ten bonds. Complainant averred and proved that until more than a year had elapsed after the judgment he had no knowledge, information or suspicion of the facts nor any reason to believe or suspect it to be as it now appears in respect to their condition, or to the number subscribed for. He was notin a position to know or ascertain it except from information by the officers of the company, and this, being false but not improbable, deceived him, as it did also the court and jury. The company can not be heard to charge as his fault or negligence in any degree that he believed its officers, whom it, to all appearance, so fully accredited. If his attorney, by his failure to insist upon the production of the other papers, waived his right to the primary and best evidence of this material fact in issue, he certainly did not waive the right to have the secondary evidence truthful. "We can not regard such failure, under the circumstances shown, as negligence, and if it were, the company, for the reasons stated, should be estopped to take advantage of it. Linington v. Strong, 107 Ill. 295.

Nor could he have had relief upon motion for a new trial, because of his ignoraneeof the fact; nor by appeal or writ of error, for there was no error apparent in the record. And yet to enforce the judgment would be inequitable because, as now appears, there was not even a prima facie case for it. It had no foundation in merit or in contract. Tor its pretended consideration the defendant has never received and never can receive anything of value. And being now impeached by a fact of which he was kept in ignorance, and prevented from availing himself by the act of the plaintiff — which was a fraud if it was not an accident or a mistake — without negligence on his own part, it seems clearly within the rule established by the authorities, according to which equity will relieve against it by awarding a new trial. McGehee v. Gold, 68 Ill. 215; Smith v. Allen, 63 Id. 474; Wilday v. McConnell, Ibid. 279; Gregg v. Brower, 67 Id. 532; Weaver v. Poyer, 79 Id. 422; Brown v. Luehrs, Ibid. 579; Holmes v. Stateler, 57 Id. 211; Shinkle v. Letcher, 47 Id. 216; Propst v. Meadows, 13 Id. 169; Weirich v. De Zoya, 2 Gilm. 385; Abrams v. Camp, 3 Scam. 290; More v. Bagley, Breese (Beecher’s ed.), 94; Hubbard v. Hobson, Ibid. 190. These cases show that neither the rule of res adjudicate nor any principle on which it rests can have a just application to this.

It was therefore error to dismiss the bill for want of equity. The decree of the circuit court must be reversed and the canse remanded for further proceedings in conformity herewith.

Reversed and remanded.


text:
    John W. Laughlin v. Lorenzo Ettinger.
    1. Master and servant — Entire agreement — Quitting before expiration of time. — Where appellee recovered judgment against appellant for the balance claimed to he due appellee for work' and labor on appellant's farm, and appellant claimed, and the evidence clearly proved, that the work was done under an entire agreement, and that appellee violated it, of his own wrong, by quitting before tbe expiration of the time for which he was engaged. Held, that the court below erred in overruling appellant’s motion for a new trial on the ground that the verdict was against the law and the evidence.
    2. Agency. — ■’Where appellee did not understand English, and by his authority a party acted for him in making a contract for services with appellant, and appellee came to work at the time and in the manner arranged for, appellee would be hound by such contract.
    Appeal from the Circuit Court of Putnam county; the Hon. hi. M. Laws, Judge, presiding.
    Opinion filed February 29, 1884.
    Messrs. Shaw & Edwards, for appellant;
    cited Eldridge v. Rowe, 2 Gilm. 91; Badgley v. Heald, 4 Gilm. 64; Swanzey v. Moore, 22 Ill. 63; Angle v. Hanna, 22 Ill. 429; Hansell v. Erickson, 28 Ill. 257; Thrift v. Payne, 71 Ill. 408.
    Mr. O. C. Jones, for appellee;
    cited Esmay v. Gorton, 18 Ill. 483; Waggeman v. Bracken, 52 Ill. 468; Mix v. Osby, 62 Ill. 193.
   Pleasants, J.

On appeal from a justice of the peace, appellee, who was plaintiff below, recovered judgment on a verdict against appellant for $70.08 as balance claimed for work and labor on the latter’s farm. His case rested upon his own testimony that he worked for the defendant for the time claimed, being from March 1 to August 1, 1883; that his services were reasonably worth $20 per month, and that he had received on account only the sum of $27.

Defendant appealed and assigns for error that the circuit court overruled his motion for a new trial based on the ground that the verdict w.as against the law and the evidence.

It is conceded by appellant that appellee wrought for him during the time stated, and that he agreed to pay him $20 per month and paid him only the amount admitted. But it is claimed the fact was and the evidence clearly proved that the work was done under an entire agreement, and that appellee violated it, of his own wrong, by quitting before the expiration of the time for which he engaged. We are fully satisfied of the truth of this claim, and that it was a good and sufficient defense is too well understood to make it necessary or pi’ofitable to cite authox'ities.

The uncontradicted testimony is, that appellee did not understand the English language, but had a friend, one Anton Goetz, who did, with whom, a few days before the employment of appellee, appellant had some conversation respecting it. On the day of the employment Goetz came to appellant’s place with appellee “ to do the talking for him,” and did it. Appellee wanted $22 per month, but appellant refused it and offered $20 until after corn husking, with the right to discharge him at the end of a month if he did not suit; to which “ they assented.” He did suit, and continued to work xxntil the morning of August 1st, when, having gone out with the boys into the field to commence the oats harvest, he muttered something, understood to be indicative of dissatisfaction, and went away, returning, some days afterward, but only for his clothes, and worked no more.

The contract, as above stated, was cleaxly proved by appellant and his son and by Goetz. There is no pretense of ill treatment of any degree or character, or of other excuse for thus leaving; and the only point attempted to be made by appellee’s counsel in support of the verdict and judgment below or disclosed by the record, is, that it was not shown that appellee understood what was said by appellant and Goetz in making the agreement, and therefore that there is no evidence that the minds of the parties met in respect to its terms.

Appellee was pi-esent and heard all that was then said. That he was then and there told by Goetz the full and exact meaning of it, is not positively shown; but he came to work at the time and in the manner so arranged for, and the irresistible inference is, that he was then or afterward, and before he so came, fully informed of it. And whether he was or not, if Goetz was authorized to act for him, and understood it, he was bound by it.

Upon this evidence the court gave the following instruction on behalf of the plaintiff: “In order to constitute a valid agreement between plaintiff and defendant as to the hiring in this case, if any, the minds of the plaintiff and defendant must have met; and if the jury believe, from the evidence, that the plaintiff did not understand what was said by Laughlin and the witness Goetz as to the terms and length of time he was to work, and assent to it, he would not be bound by it, and would have the right in this suit to recover for what work he actually did for the defendant, whatever the evidence shows. it was reasonably worth.”

This instruction ignores the theory of defendant and the evidence that Goetz acted for the plaintiff and by his authority, and was therefore erroneous. It should have been refused or modified; and for the errors in giving it as asked, and in overruling the motion for a new trial, the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Leonard K. Scroggin v. J. R. Brown.
    Proeessionaa propriety. — As the brief of plaintiff in error'elearly violates the ordinary and well known rules of professional propriety, it is ordered that the briefbe stricken from the files, with leave to plaintiff in error to file another brief within ten days, couched in decorous language and respectful in its terms to the judge who tried the cause, the attorneys and all other persons mentioned thei’ein.
    Errob to the Circuit Court of Logan county; the Hon. C. Epaer, Judge, presiding.
    Opinion filed November 24, 1883.
    Messrs. Beach & Hodhett, for plaintiff in error.
    Messi’s. Bairn & Hobait, for defendant in error.
   Per Curiam.

The briefs filed in this case violate the well known practice of this court which requires that all briefs shall be respectful in language to the judge who tried the case below, the parties and their attorneys and the witnesses and other persons connected with the trial of the canse. We said in Smith v. Bingraan, 3 Bradwell, 65: “Wedisapprove of the insinuations in the brief of appellee against the professional conduct of the attorney of appellant. Briefs should he respectful to the court, the parties and all persons named in them; and this court will, as far as it has power, see that this rule is enforced.” Again in C. & A. R. R. Co. v. Bragonier, 13 Bradwell, 467, in commenting on the briefs filed in that case we said: “Hereafter briefs containing offensive language will be promptly stricken from the files.”

The following statements are found in plaintiff’s brief in this case: On page 31 appears this statement: “Counsel for Brown saw the trouble with that defense and tried to avoid it by having Brown swear that he never made a usurious contract with Scroggin, that nothing was said between them as to what rate of interest he was to pay, and that he did not know until about two years before the trial of this cause below, that Scroggin was charging him 20 per cent, interest.”

Again, on page 3S, in commenting on the instructions, counsel say: “ The next instruction given for defendant would seem to show that counsel for defendant and the court well understood what the law was and gave that instruction for the time being to be in harmony with it; but if the instruction does show that fact, the 'instruction immediately following it would as clearly show that the court as well as counsel were trying to beat somebody, regardless of the law; because if the third' instruction is the law, the second instruction could not be.”

Again, on page 43, counsel say: “Evidently the instruction given by the court does not properly state the law, and we do not believe that it was intended that it should state the law correctly; for if it had, under the proofs in this case, the defendant would never have been permitted to go behind his last settlement with Scroggin, and thereby his entire trumped-up defense would have been shut off and taken from the consideration of the jury.”

These remarks of counsel, so clearly violate the ordinary and well known rules of professional propriety as to render it the duty of this court to strike the brief containing them from its files.

It is therefore ordered that the brief of plaintiff in error be stricken from the files of this court, with leave to plaintiff in error to file another brief within ten days, couched in decorous language and respectful in its terms to the judge who tried the cause, the attorneys and all other persons mentioned therein.


author: Davis, J.

text:
    Leonard K. Scroggin v. J. R. Brown.
    Usury voluntarily paid. — Usury voluntarily paid can not be recovered back. As the jury improperly allowed to defendant in error payments of usurious interest voluntarily paid by him in Ms settlements with plaintiff in error, the court below erred in not setting aside the verdict and granting plaintiff in error a new trial.
    Erbob to the Circuit Court of Logan county; the ILon. C. Epler, Judge, presiding.
    Opinion filed January 22, 1884.
    Messrs. Beach & Hodhett, for plaintiff in error;
    that a settlement fairly and honestly made is conclusive between the parties to it, cited Am. Ins. Co. v. Crawford, 89 Ill. 62; Stempel v. Thomas, 89 Ill. 146; 1 Story’s Eq. Jur., § 111; Bradwell v. Bradwell, 1 Gilm. 604; Shafer v. Davis, 13 Ill. 397; Campbell v. Carter, 14 Ill. 291; Sibert v. McAvoy, 15 Ill. 109; Stover v. Mitchell, 45 Ill. 213; Rosenmuller v. Lampe, 89 Ill. 212; Nichols v. Bradsby, 78 Ill. 44.
    Usury voluntarily paid can not be recovered bach: Holden v. Innis, 24 Ill. 381; Tompkins v. Hill, 28 Ill. 519; Perkins v. Conant, 29 Ill. 184; Carter v. Moses, 39 Ill. 539; Manny v. Stockton, 34 Ill. 306; Ramsey v. Perley, 34 Ill. 504; Pitts v. Cable, 44 Ill. 103; Town v. Wood, 37 Ill. 512.
    Where an old transaction is settled and closed and a new loan made, the borrower will not be allowed to set up usury in the former transaction as against the new loan: Puterbaugh v. Farrell, 73 Ill. 213; Parmelee v. Lawrence, 44 Ill. 405; Farwell v. Meyer, 35 Ill. 40; Booker v. Anderson, 35 Ill. 66; Saylor v. Daniels, 37 Ill. 331; Hunter v. Hatch, 45 Ill. 178; House v. Davis, 60 Ill. 367.

      Messrs. Blinbt & Iíoblit, for defendant in error.
   Davis, J.

This was an action brought to recover from defendant in error |the amount due on a promissory note, executed by him on the 7th of June, 1875, to Henry Fesler, and by the payee, at defendant’s request, assigned to plaintiff in error. The note was drawn for $1,207.65, payable one day after date, with ten per cent, interest from date till paid.

On the back of the note was indorsed a credit of $100, paid on interest, June 10, 1876, a credit of $128, interest paid to Nov. 1, 1876, and a credit of $29.54, March 1,1879.

Defendants in error plead the general issue and also filed special pleas of set-off and usury.

The record discloses that the three payments, indorsed on the note, were the only transactions between the parties in connection with the note after it was assigned to the plaintiff in error. But it seems that for several years before and after the execution of the note there were many transactions between the parties, but all wholly disconnected and independent of the note sued on.

The transactions referred to commenced in 1874, under an arrangement by which plaintiff in. error was to loan defendant in error money with which to buy cattle, pay expenses and for other purposes; and for such money loaned, defendant was to pay twenty per cent, interest, and when hogs or cattle were sold the money was to be paid over by the purchasers to the plaintiff in error.

Under thisarrangement moneyjhad been borrowed by defendant from time to time, during thirteen years prior to the commencement of the litigation on the note in controversy. When the money would be borrowed, defendant in error executed his note for the sum obtained, with interest at the rate of ten per cent, per annum. When defendant in error sold hogs or cattle the return would usually be made to plaintiff in error. Sometimes, however, defendant in error would collect the money himself, and pay it over to plaintiff in error when the parties settled. Settlements were made between plaintiff and defendant three or four times a year, and on sncli settlements the notes given hv defendant in error would be paid and taken up, other money borrowed and new notes given for the same. On these transactions, twenty per cent, interest would be calculated and the amount allowed plaintiff in error in the settlements. Fi'om time to time, as the notes were paid off and given upjto defendant in the settlements, he was told that plaintiff in error was charging him twenty per cent, interest on the notes.

On the 29th of March, 1878, the parties had a full settlement, and defendant in error gave plaintiff in error a chattel mortgage to secure him in the payment of all the notes he held against him at the time, that had in any way grown out of their cattle transactions. The notes straightened up the cattle deal in full.

On the 1st of Max’ch, 1879, defendant in error made a sale of the pi’operty mortgaged, and the parties then had another full and^complete settlement of their dealings, and defendant in erx’or paid off all the notes secured by said mortgage and the further sum of $29.50, which by agreement was applied as a payment of the note sued on.

On the trial below, the usurious interest claimed to have been paid from time to time in these transactions, was given in evidence to the jury as a defense to the note in suit, and the jury found a verdict for the defendant in error and assessed his damages at $153.02, for which amount the court gave a judgment against the plaintiff in errox*, to reverse which the case is brought to this court.

The jury evidently allowed the defendant in error most, if not all, the interest claimed to have been paid usui’iously. That usurious interest was paid to plaintiff in error there can be no question. Three or four times a year during the thirteen years these transactions were in pi’ogress, the parties made full and voluntary settlements, and at these settlements ten per cent, interest in excess of the legal rate of interest was paid by defendant in error to the plaintiff. But these payments of usurious interest were voluntary, and it is the settled law of this State, that usury voluntarily paid can not be recovered back. Tompkins v. Innes, 24 Ill. 381; Ramsey v. Perley, 34 Ill. 504; Carter v. Moses, 39 Ill. 539; Peddicord v. Connard, 85 Ill. 102.

These payments of usurious interest were therefore improperly allowed by the jury, and the court below erred in not setting aside the verdict and granting plaintiff in error a new trial. The judgment must therefore be reversed and the cause remanded.

Judgment reversed.


text:
    Daniel Moll et al. v. Town of Pickaway.
    Roads and bridges — Action against commissioners. — An action of debt brought against commissioners of highways by L., in the name of the town, under sections 59 and 60 of the act of 1879 entitled Roads and Bridges. L., without the consent of the commissioners or any one having authority to give consent, appropriated and used for repairing a culvert on a public highway a portion of some lumber which had been hauled by order of the commissioners to a certain bridge to be used for repairing said bridge. After the lumber had been used in repairing the culvert, the commissioners tore it out and took it back to the place from which it had been taken by L. Held, that this action will not lie against the commissioners. The property was not changed by being put in the culverts, but was still the property of the commissioners, which they had a right to use as would, in their judgment, best subserve the interests of the town.
    Error to the County Court of Shelby county; the Hon. W. W. Hess, Judge, presiding.
    Opinion filed January 22, 1884.
    Messrs. Hamlin & Holloway, for plaintiffs in error;
    as to the construction of a penal statute, cited Edwards v. Hill, 11 Ill. 22; Waddle v. Duncan, 63 Ill. 224.
    Messrs. Stephenson & Baum, for defendant in error.
   Davis, J.

This was an action of debt brought before a justice of the peace to recover a penalty from plaintiffs in error for removing plank from culverts on a public highway. Judgment was given for plaintiffs in error, from which judgment an appeal was taken to the county court and judgment was rendered in that court against plaintiffs in error for $25 to reverse which they bring the case to this court.

Plaintiffs in error were the commissioners of highways of Pickaway township, and this suit was brought against them by Isaac Longenbach in the name of the town, under section 59 and 60 of the act of 1879, entitled Roads and Bridges, pages 270 and 271.

In May, 1882, plaintiffs in error, as commissioners of highways of Pickaway township, ordered a quantity of lumber to bq hauled from Weakly’s mill to Hill bridge for the purpose of repairing the bridge. Before it was used for the purpose intended, a portion of it was hauled away by said Isaac Longenbach, the person who instituted this proceeding, without the consent of plaintiffs in error or any one having authority to give such consent. The lumber so obtained was used by him in repairing two culverts and making two bridges across on what he claimed to be a public road running through his farm. After it was so used, it was torn out by the plaintiffs in error, as commissioners of highways, and taken back to the place from which it was obtained, and for so doing this prosecution was instituted against them.

Section 59 of the act referred to provides: “If any person shall purposely destroy or injure any sidewalk, public bridge, culvert or causeway, or remove any of the timber or plank thereof or obstruct the same, he shall forfeit a sum not less than three dollars nor more than one hundred dollars, and shall be liable for all damages occasioned thereby and all necessary costs for rebuilding or repairing the same.”

The only question arising in this case necessary for our determination, is whether plaintiffs in error are liable to prosecution under this section of the statute, for removing from the culverts, the plank belonging to them, as commissioners of highways, and appropriated by them for another public purpose.

It is clear that Longenbach had no right to take and use any of the lumber belonging to the commissioners of highways. If the overseer of highways gave him permission to work out his road tax on the road i.n question, that did not authorize him to do more than work out such tax, and if he promised him lumber with which to fix the culverts, application should have been made to him for such lumber.

But no authority was given by the overseer of highways, or by any one else haviug power to give such authority, to repair the culverts or to take the lumber belonging to the township or the commissioners of highways.

The law vests the commissioners of highways with the care and superintendence of highways and bridges in their respective towns, and imposes the duty upon them of giving directions for the repairing of such roads and bridges when the public interests or necessity require it. In the discharge of their duties plaintiffs in error procured lumber with which to repair Hill bridge, but before it could be used for that purpose Isaac Longenbach usui’ped the duties and powers of the commissioners, and decided that two culverts on the road passing through his farm needed repair more urgently than did Hill bridge, and arbitrarily and without any authority of law removed some of the lumber appropriated by the commissioners for repairing such bridge and used it for the purpose of repairing the culverts on the road passing through his farm. The property in the lumber was not changed by its being put in the culverts. It was still the property of the commissioners of highways, and it was their duty to use it where in their judgment it would best promote the interests of the township.

As the plank taken had been used in repairing and making culverts in a road claimed to be a public highway, it might have been as well had plaintiffs in error permitted it to remain where it was, as the township might ultimately have secured the full benefit of the lumber; but that was a matter for the sole determination of the plaintiffs, as commissioners of highways, and if they determined that it was for the best interest of the township to take the lumber from where it had been wrongfully placed and use it for the purpose originally contemplated, or other purposes of the township, their action is final and can not he questioned. If they erred in judgment it was an error for which no prosecution will lie against them. The judgment must therefore he reversed.

Judgment reversed.


author: McCulloch, P. J.

text:
    Chicago and Alton Railroad Company v. William Pratt.
    1. Preponderance of evidence. — The court is of opinion that the preponderance of the evidence is in favor of appellant’s theory, that the stock car occupied a position next in the rear of the flat car, and consequently was that from which appellee fell.
    2. Defect in machinery. — Employers are not insurers of the safety of tools or machinery furnished their employes. They are only liable in case of their own negligence or that of (heir representatives, and the burden of. proving such negligence is upon the person alleging it, and where notice of an existing defect is an essential element of the negligence complained of, such notice must be proved.
    Appeal from the Circuit Court of Jersey county; the Hon. C. Epler, Judge, presiding.
    Opinion filed January 22, 1884.
    Messrs. Wise & Davis, for appellant;
    cited C. & A. R. R. Co. v. Platt, 98 Ill. 141; Toledo, P. & W. Ry. Co. v. Conroy, 61 Ill. 162; C., C. & I. C. Ry. Co. v. Troesch, 68 Ill. 545; E. St. L. P. & P. Co. v. Hightower, 92 Ill. 139; I. & St. L. R. R. Co. v. Estes, 96 Ill. 470; O. & M. R. R. Co. v. Schiebe, 44 Ill. 460; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; Hibbard v. Molloy, 63 Ill. 471; Knott v. Skinner, 63 Ill. 239; Puterbaugh v. Crittenden, 55 Ill. 485; Waggeman v. Lombard, 56 Ill. 42; C. & A. R. R. Co. v. Purvines, 58 Ill. 38; T., W. & W. Ry. Co. v. Moore, 77 Ill. 217.
    Messrs. Cope & MoCinnis, for appellee;
    as to instructions, cited Green v. Lewis, 13 Ill. 642; Fisher v. Stevens, 16 Ill. 397; Newkirk v. Cone, 18 Ill. 449; I. C. R. R. Co. v. Dunn, 51 Ill. 78; Merritt v. Taylor, 20 Ill. 65; Roe v. Taylor, 45 Ill. 485; Chapman v. Cawrey, 50 Ill. 512; Rockford Ins. Co. v. Nelson, 75 Ill. 584.
   McCulloch, P. J.

This is a suit by appellee against appellant to recover damages for injuries sustained by appellee while employed as brakeman upon appellant’s road. The declaration alleges that in the performance of his duty as such brakeman it was necessary for appellee to go up on top of the cars and down again, and in doing so he was compelled to use the ladders upon the said cars, placed on them for the servants of the defendant to use in operating the train; that in going up one of said ladders with due care and caution, one of the rounds on the same pulled out, broke and gave away, whereby he was thrown to the ground, run over by the cars and lost one of his legs. The first count charges that the step or round of the ladder vras carelessly and negligently allowed and suffered to become insecure, unsafe and out of repair by the defendant, in consequence of which appellee received his injury in manner aforesaid. The second count in its charge of negligence is substantially the same as the first.

It appears from the evidence that the train on which appellee was at work at the time of the injury was made up at East St. Louis, left there a little before midnight, stopping at Yenice, at Mitchell, at Edwardsville crossing, and arriving at Alton at about half past one in the morning, at which time and place the accident happened. When the train left East St. Louis it consisted of nineteen cars. Switching was done at the several stations at which the train stopped. At Yenice a stock car was taken which was destined for Jacksonville. The position of that car in the train at the time of the accident is in one view of the case a controlling question, for appellee testifies he fell from the car next in the rear of a flat car, and that one he says was a box car. His counsel admit that if the car from which he fell was the cattle car taken into the train at Yenice, he has no case, for the testimony is conclusive that that car was in good condition, and without any steps out of the ladder, when the train arrived at Alton.

Appellee testified that when the train left Yenice the stock car was second in the train. At Mitchell they took on the flat car, then the stock car was the third car. At Edwards-ville they took on two more cars which made the cattle car the fifth. The train then consisted of two box cars in front, then the flat car, then a box car, then the cattle car, after which came the remainder of the train as it had left East St. Louis. Appellee, according to his own testimony, first passed over the top of the two box cars next to the engine, then over the flat car and attempted to ascend the ladder on the box car next in the rear of the flat car, in doing which he fell and received his injuries.

The testimony of the conductor is that the stock car was the fourth in the train after leaving Edwardsville, and that it came next in the rear of the flat car; -that there were two cars taken on at Edwardsville and one left there. Appellee does not claim there was any change made in any portion of the train except as to the five cars in front. He says that at Mitchell the flat car was put next to the engine. The conductor says that at Mitchell the flat car was put behind the ear that was to be left at Edwardsville, and that at Edwards-ville two cars loaded with wood were taken on and the car destined for Edwardsville was left. His testimony is corroborated by the report made by him to the company as to the places where the several cars were taken on and left off the train, but as to the position of the cars in the train this report furnishes no evidence. If the conductor’s statement is true then it is admitted appellee has no cause of action.

The accident happened on a bridge across a small stream within or near to the city of Alton. In support of his side of the case appellee called as a witness one Erank Eoller, who, on the night of the accident, was employed at a lime kiln, about forty-five yards from the railroad. "When the train had come within about one hundred yards of him he saw a man walking with a lantern going on a flat car toward the rear of the train, and he, the witness, could see by the light of the lantern in the man’s hand, that the car next in the rear of the flat ear was a box car. When the man with the lantern came to that car he began climbing np the ladder, when the-bridge shut out the view. Then as the train passed by him and between him and the glass works on the opposite side of the road, and not more than forty-five or fifty yards from him, he could plainly see from the light of the glass works that the car where he had seen the man walking was a flatcar and the one in the rear of it was a box car. A very few moments afterward he heard appellee’s cries for help and went to him where he lay on the bridge. Standing alone, these statements would tend to support appellee’s evidence. But this witness is fully as positive in stating that the ear in front of the flat car was an empty stock car; that the second car ahead of the flat car was a box car; that there were four cars between the engine and the flatcar, making the train consist, first, of three box cars, then the stock car, then the flat car, then the box car from which appellee fell. This arrangement places four cars between the flat car and the engine, whereas appellee testifies there were only two and they both box cars. According to appellee’s arrangement the stock'car was the second in the rear of the flat car, whereas this witness places it the first in front of it. In this he is contradicted, not only by appellee himself, but by every other witness who testified upon this point.

Harry Livingston, another witness for appellee, was with Holler at the time the train passed the lime kiln. This witness is unable to give the relative position of the cars in the train. He does, however, testify that he saw a man with a lantern going up the ladder on the side of a car, and that car was a box car. Unfortunately, however, he states that the car he saw the man go up on was the car ahead of the flat car toward the locomotive. It appears, therefore, that upon this vital point in the case, appellee and his own witnesses are in direct conflict with each other.

In further support of his case appellee proved that on the day before the accident one Lone had set a fish net under this bridge and when he raised it two days afterward he found on the top of the net an iron round from a ladder of a car; that in this iron there was a screw and on the screw some rotten wood. The evidence of this witness is somewhat weakened by the fact that he had been convicted of an infamous crime which, but for our statute, would have rendered him wholly incompetent as a witness. He is corroborated by other witnesses as to his having the iron in his possession about the time mentioned by him, but by none as to the place where it was found. In weighing the testimony of this witness it must also be taken into consideration that there was another railroad bridge crossing this same stream at a distance of not more than eight feet from appellant’s bridge, from which the iron in question might have fallen. It was also shown by witnesses for the defense that the screw found in this iron was not such an one as those in use for the same purpose by appellant. This was substantially all of appellee’s evidence.

George W. Scales testified on behalf of appellant that he. was conductor of the train in question; that at Venice the 0. & A. stock car Ho. 2,615 was taken on destined for Jacksonville; that when the train arrived at Venice the car bound for Edwardsville was next to the engine, and that the stock car • wras placed in the rear of it; that at Mitchell they took on the flat car and placed it between the Edwardsville car and the stock car. At Edwardsville crossing the Edwardsville car was left and two cars loaded with wood were taken on and placed next to the engine, with the flat car immediately in their rear and the stock car in the rear of that, in which position the cars remained until the train arrived at Alton, where the train immediately upon its arrival was taken in charge by Edward O’Leary, the yard master. At the time of the last trial the said O’Leary was dead, but his testimony on a former trial was detailed by other witnesses, from which it appeared that when the train came to Alton the stock car was next in the rear of the flat car.

William A. Hedman, the engineer, and George McGarraghan, the fireman, both testify to substantially the same state of facts, as Scales, and detail minutely the manner in which the switching was done at the several stations and the way the cars came to occupy their relative positions in the train. It also appears from their testimony that the stock car was loaded instead of being an empty one, as testified to by one of appellee’s witnesses.

The conductor’s report of this train, made in due course of business to his superiors, shows that all the cars in this train when it left East St. Louis were loaded, with one exception, and that one was left at Edwardsville; that a loaded stock car was taken on at Yenice, an empty flat car at Mitchell and two loaded box cars at Edwardsville crossing, all of which were taken through to Alton.

From a close examination of all the evidence bearing upon the position of the stock car in the train we are of opinion that it overwhelmingly preponderates in favor of appellant’s theory, that it occupied a position next in the rear of the flat car, and consequently was that from which appellee fell.

But if it be said that upon this question there was a conflict of the evidence, and it was for the jury to weigh it and to find where the preponderance lay, it will be in order for us to inquire further whether there is any evidence of negligence on the part of appellant. If appellee did not fall from the stock car then there is no satisfactory evidence as to what car he did fall from. The first car in the train when it left East St. Louis had been left at Edwardsville. The two taken on at Edwardsville were in front of the flat car. The stock car and the flat car were the only others that had been taken on after leaving the place of departure. If by any possibility the evidence can be so interpreted as to place the stock car in front of the flat car or the second in the rear of it, then we are absolutely without evidence as to what car in the train it was that appellee actually fell from, and the only evidence of negligence we have is the fact that the round pulled oif, and that when found, some rotten-wood was found-sticking to the screw that held it.

Now it appears from the evidence that the train was composed of twenty-two cars when it arrived at Alton, only a portion of which belonged to appellant’s road. Some foreign cars were in the train and if the round found in the creek below was the one that gave way and caused appellee to fall, it is' more than probable it came from one of those foreign cars, for the screw that held it was not such an one as those used upon appellant’s cars.

It may be conceded that appellant was bound to exercise a high degree of diligence to ascertain the condition of all cars running upon its track whether belonging to itself or to other roads, yet it is incumbent upon the plaintiff to show not only that the car was defective but also that appellant either knew or by the exercise of a high degree of care could have known that fact. There is no evidence whatever that, the defect was a patent one of which the car inspectors of appellant were bound to take notice. In such case knowledge of such defect is not to be presumed. It is a mistaken notion urged by counsel for appellee that the existence of such defect is grima facie evidence of negligence. Employers are not insurers of the safety of tools or machinery furnished their employes. They are only liable in case of their own negligence or that of their representatives, and the burden of proving such negligence is upon the person alleging it, and where notice of an existing defect is an essential element of the negligence complained of that, too, must be ¡>roved: E. St. L. P. & P. Co v. Hightower, 92 Ill. 139. The evidence shows that appellant had a car-inspecting station at Yenice, where every car in every train that came in was inspected, and if anything was found to be wrong it was repaired before the car was allowed to go out. This train, like all others, was inspected at that station and nothing wTas found to be wrong. "What more could be required of appellant it is difficult to imagine, unless we hold it to be an absolute insurer of the safety of all cars running on its road.

The law of this case was so fully settled by the Supreme Oourt (C. & A. R. R. Co. v. Platt, 89 Ill. 141), that we deem it unnecessary to discuss the authorities cited by appellee’s counsel. It is there said, “ It will not be contended that a railroad company would be responsible for a latent defect in the boiler of an engine, or for a flaw in a broken rail, of which it had no knoweldge, everything to the eye appearing right and the usual tests discovering no defect. The car in question was in good condition. The screw holding the round of the ladder may have lost its hold upon the wooden upright at a moment before it was grasped by the brakeman. It would be a very rigid rule to hold the company liable without any proof they knew, or had reason to know, the fastening was defective.”

We are of opinion the evidence wholly fails to charge appellant with notice of the alleged defect, and not only that, but the clear preponderance of the evidence is that appellee fell from the stock car, which the evidence so fully shows to have been in a good condition that counsel for appellee do not attempt to controvert it. For these reasons the judgment will be reversed and the cause remanded.

Beversed and remanded.


text:
    Caroline Schopper et al. v. August Hildebrandt, Adm’r, etc.
    Equity jurisdiction — Liability of heirs and devisees. — A bill in chancery seeking to make the heirs at law and devisees personally liable by virtue of section 12, chapter 59, R. S. Held, that courts of equity do not have jurisdiction in this class of cases. The remedy provided by the statute is purely a legal one; the heirs at law and devisees being entitled to all the benefits of a jury trial as to the validity of the claim against their ancestor, as to whether or not the same is barred by the Statute of Limitations and as to the value of the lands descended to them.
    Error to the Circuit Court of Calhoun county; the Hon. C. Epler, Judge, presiding.
    Opinion filed January 22, 1884.
    Mr. J. S. Carr, for plaintiffs in error:
    that the remedy is at law, cited McCarthy v. Lavasche, 89 Ill. 271; Culver v. Third Nat. Bk., 64 Ill. 529; Wincock v. Turpin, 96 Ill. 143; Wells v. Lammey, 88 Ill. 175; Clinton Co. v. Schuster, 82 Ill. 137; Brown v. Wabash Ry. Co., 96 Ill. 297; The People v. Biggins, 96 Ill. 481; Story’s Eq. Jur., § 33; Whitney v. Stevens, 97 Ill. 483,
    Messrs. August & Keating, for defendant in error;
    that the liability of heirs at law and devisees of a deceased person for a debt of their ancestor or testator is the same both in law and in equity, cited Catwright v. Stanford, 81 Ill. 240; Van Meter’s Heirs v. Love’s Heirs, 29 Ill. 488; Conover v. Hill, 76 Ill. 342.
   McCulloch, P. J.

This was a bill in chancery brought by defendant in error, as administrator of Charles Otte, against plaintiffs in error, as heirs at law of one George Kinder, to recover for work and labor performed by said Charles Otte for said George Kinder in his life-time. The services were rendered from the year 1872 until 1878, when Kinder died testate, and his widow, Caroline, since intermarried with one Schopper, became his executrix. At the end of two years from the date of her letters testamentary, she made final report and was discharged. The claim of Otte was-never probated against the estate of Kinder. It is now claimed that because the personal estate was not sufficient to pay the debts, and land having descended to the heirs and devisees, they have became personally responsible for the claim of Otte, by virtue of Sec. 12, Oh. 59 R. S.

It is objected on the part of plaintiffs in error that if they are liable at all, the remedy provided by this statute is purely a legal one; that they are entitled to all the benefits of a jury trial as to the validity of the claim against their ancestor, as to whether or not the same is barred by the Statute of Limitations and as to the value of the lands descended to them, all of which questions are vital as to the extent of their liability. This objection we are of opinion is well taken. The claim is a purely legal one and the remedy must be found in a court of law. At the last term of this court we decided substantially the same question. Epler v. Epler, 13 Bradwell, 472. We refer to the following authorities as sustaining us in this decision: Blanchard v. Williamson, 70 Ill. 647; LeMoyne v. Quimby, 70 Ill. 399; Freeland v. Dazey, 25 Ill. 294; Hardin v. Douglas, 64 Ill. 466; Conover v. Hill, 76 Ill. 342; Hurlbut v. Johnson, 74 Ill. 61.

Several cases have been cited by counsel for defendant in error to the effect that the liability of the heirs and devisees is the same in equity that it is at law. We have examined these cases and find that, in so far as they state the measure of the liability of the heirs and devisees, courts of equity will follow the courts of law and hold them liable just as courts of law do. But in no case do we find this statute construed as giving courts of equity jurisdiction in this class of cases. In every case wherein the rule is stated as contended for by counsel for defendant, some other ground of equitable jurisdiction existed, either exclusive or concurrent with courts of law. The question now presented did not and could not have arisen in such cases.

We are therefore of opinion that the relief granted by the decree in this case was not within the jurisdiction of a court of equity, and for that reason the decree will be reversed and the bill dismissed.

Decree reversed.