text:
    Samuel M. Rothschild v. Otto Meyer et al.
    1. Action for malicious prosecution.—In actions for the malicious prosecution of civil suits the declaration must show that the suit complained of has been brought to an end the same as in cases of the malicious prosecution of a criminal proceeding.
    2. Same—Abuse of civil process.—Where it was alleged that the arrest, imprisonment and compelling plaintiff to give bail upon the writ of cajnas ad respondendum were an abuse of that writ, and that the suit in which it was issued was false, malicious and hopeless, and that it was a case for the malicious abuse of civil process and therefore no averment that such suit was ended was necessary. Held, that as the declaration does not show that the process was abused or perverted by being employed in making the plaintiff do any collateral thing, such position is not tenable.
    3. Pleading.—The fact that the declaration avers that the first suit was false and hopeless, and that is admitted by the demurrer, does not help out the want of averment that such first suit was at an end.
    Appeal from the Circuit Court of Cook comity ; the lion'. I-orin C. Collins, Judge, presiding.
    Opinion filed February 3, 1886.
    This was an appeal by the plaintiff below from the judgment of the court in sustaining the defendants’ demurrer to his declaration in substance as follows:
    Declaration in an action on the case filed February 3, 1885, states that on December 27, 1884, plaintiff Eothschild, in the ordinary course of business, had bought of defendant, Otto Meyer, certain dry goods, amounting in value to $8,324, for which plaintiff had not.paid, and plaintiff bought said goods without making any false representations of any kind to any person for the propose of obtaining credit for said goods, and said goods were sold by said Otto Meyer to said plaintiff without any false representations of any kind having been made by plaintiff to any one on which a credit to plaintiff for said goods was based. But defendants well knowing the premises, and that plaintiff was not liable to arrest for said debt, and that no action for trespass on the case could be maintained therefor against plaintiff, and that such action would be false and hopeless, yet contriving and maliciously intending to injure and oppress plaintiff, and by abuse of process of the law to illegally imprison plaintiff, and harass, oppress and wholly ruin him, on December 27, A. D. 18S4, at said county, presented to Hon. B. S. Williamson, one of the judges of the superior court, the affidavit of defendant, Albert Meyer, which stated that plaintiff had obtained the credit for said goods by means of false representations made by plaintiff, for that purpose. And plaintiff says that the statements in said affidavit were willfully false, and known to be so by defendants, and were made for the sole purpose of obtaining thereby an illegal process for the arrest of plaintiff, and by an abuse of process of the law to imprison, oppress and wholly ruin plaintiff. By means of said affidavit defendants procured said Williamson to order the arrest of plaintiff for said debt. And defendants on December 27, 1884, filed said affidavit in the superior court, and commenced an action on the case against plaintiff, at the suit of said Otto Meyer, to recover the debt for said dry goods, and in said action; by means of said affidavit and said order of Judge Williamson, caused the clerk of said superior court to issue in said case a writ of capias ad respondendum for the arrest of plaintiff. And plaintiff says that said Otto Meyer had not, when said suit was commenced, any claim or demand against plaintiff, for which he could sustain an action on the case against plaintiff, and plaintiff had been guilty of no act for which he could lawfully be arrested in said suit, and said suit was and is false, malicious and hopeless, all of which was well known to defendants, when they commenced said suit, and caused said capias to be issued, and defendants commenced said suit and caused said capias to be issued for the purpose of injuring and harassing said plaintiff, and by illegally depriving him of his liberty, imprisoning, oppressing and wholly ruining him. And on December 29, A. D. 1881, defendants, by means of the capias aforesaid, caused plaintiff to be arrested and imprisoned for twenty-four hours, until he was forced to and did give bail, by means of which premises plaintiff was greatly injured (stating injuries minutely) and sustained damages in the sum of $30,000.
    Messrs. Bbandt & Hoffmann, for appellant.
    Mr. Adolph Aschbr and Messrs. ICeaus, Mayer & Brackett, for appellees.
   McAllister, J.

The declaration, to which the court below sustained a demurrer, is for maliciously and without probable cause bringing civil suit in case against the plaintiff, in which he was maliciously and without probable cause arrested upon a capias ad respondendum, imprisoned for twenty-four hours and then compelled to give bail in the action. There is no allegation in the declaration that said suit has been terminated, or anything in respect to what disposition had been made of it. We have the right, therefore, to assume that it.may be still pending.

It is the general rule that in actions for the malicious prosecution of civil suits the declaration must show that the suit complained of has been brought to an end, the same as in cases of the malicious prosecution of a criminal proceeding; : nd, for the same reason, viz., that the party might recover in his action for malicious prosecution, and yet be guilty and afterward convicted of the original charge. Turner v. Walker, 3 Gill & J. 377; Wood v. Laycock, 3 Metc. (Ky.) 192 ; Hewitt v. Wooten, 7 Jones (N. C.) L. 182.

The reason why the alleged malicious suit or proceeding must be at an end before an action based upon it is brought is pointedly stated in Arundell v. Fregona, Yelv. 117: “The plaintiff will clear himself too soon, viz., before the fact is tried, which will be inconvenient; besides, the two determinations might be contrary and inconsistent.” See, also, notes to Stennell v. Hogg, 1 Saund. 228; Parker v. Langley, 10 Mod. 209; Fisher v. Bristow, Doug. 215. But because it is alleged that the arrest, imprisonment and compelling plaintiff to give bail upon the writ of capias ad respondendum were an abuse of that writ, and that the suit in which it was issued was false, malicious and hopeless, it is insisted by appellant’s counsel that it is a case for the malicious abuse of civil process and no averment that such suit was ended is necessary.

The acts of arresting, imprisoning and holding to bail under a writ of capias ad respondendum are, and each of them is, an ordinary, legal object and purpose of such writ. The averment, therefore, that they were an abuse of the writ, or that it was an abuse of it to cause any of those things to be done, can not be regarded as sufficient to change the nature of the case and bring it within the class known as abuses of legal process, in which it is immaterial that the suit or proceeding in which they occur is not at an end, and it is not essential to aver that it is. This declaration states no facts to show that the process was abused or perverted, by being employed in making the plaintiff do any collateral thing, or that it was sued out in order to illegally compel the plaintiff to do any collateral thing. In connection with the other facts alleged that was clearly necessary in order to show a case of abuse or perversion of the legal process. 2 Greenlf. on Ev. § 452; Granger v. Hill, 4 Bing. N. C. 212; Wicker v. Hotchkiss, 62 Ill. 110. The distinction between the two classes of cases is admirably stated by Sharswood, J., in Meyer v. Walter, 64 Penn. St. 283.

Counsel for appellant further contended that, inasmuch as the declaration avers that the first suit was false and hopeless, and that is admitted by the demurrer, the want of averment that such first suit was at an end is helped out. That particular expression in relation to action for malicious prosecution is used by Chief Justice Parker in the case of Parker v. Langley, 10 Mod. 209. But as we understand the obsorvations of his lordship, he meant that a desertion of the suit or prosecution would indicate that it was false and hopeless. He expressly says, however, that no man can say of an action still pending that it is false or malicious.” With some previous acquaintance with the English common law decisions, we are unable, by diligent search, to find any case in which, upon demurrer, it has even been hinted or suggested that any such words would be regarded as an equivalent for the aver, ment that the suit was at an end. There are two good reasons why that is so. One is founded in a wise public policy ; and the other is, that the rule of practice and pleading required an averment, not only that the suit was at an end, but how it was disposed of. Feazle v. Simpson, 1 Scam. 30.

It would be intolerable, in this litigious age, if, in every case where a party commenced an action of trespass or case, and sued out a capias ad respondendum against the defendant, that the latter, as soon as arrested, could, without waiting for the trial or other disposition of the case, bring his action at once against the plaintiff for maliciously and without probable cause instituting that suit, and, by averring that such suit was false and hopeless, have a trial of the second suit before or regardless of the termination of the other. To allow that to be done would be against the interests of society and the public peace; because it would multiply law suits; incite malice; waste the time of courts, and bring the administration of justice into further disrepute by inconsistent results in the two cases. We are of opinion that the judgment of the circuit court should be affirmed.

Affirmed.


source: Caselaw Access Project

author: McAllister, J.

license: Public Domain

text:
    Lake Shore & Michigan Southern R. R. Co. v. Harriet Hunt, Adm’r, etc.
    Negligence.—Where a conductor of a freight, whose train was delayed on the main track by trains standing ahead, knowing that other trains were expected soon to follow his own, did not post signals as the explicit rules of the company required him to do, but, with his brakemen, went to sleep in his caboose, remarking that a semaphore which stood near the crossing would take care of them (it was not the purpose or object of said semaphore to furnish signals to incoming trains, and at the time in question it was displaying a white light), and was killed by an incoming train crashing into the caboose. Held, that as the conductor was not in the exercise of ordinary care at the time of the injury, his administrators can not recover.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed February 3, 1886.
    This was an action under the statute brought .by appellees as administrators of Louis P. McBride, deceased, against the appellant, to recover for the benefit of the next of kin of deceased, such damages as they had sustained by reason of bis death, which was occasioned ¡November 18, 1880, near South Englewood, this county, as it was alleged, by the negligence of appellant in the management of its trains. Hpon the plea of not guilty and a trial by jury, verdict and judgment against appellant followed, in the sum of three thousand one hundred dollars. Hence this appeal.
    The defendant’s motion for a new trial and exception to the order of the court overruling it, together with all the evidence, are preserved by the bill of exceptions.
    It appears from the record that McBride was, at the time of the injury, the conductor of a freight train; had been for a considerable time previously, and had been in the service of the defendant as a railroad employe at this end of defendant’s line of railways for some eight or ten years; that some time in the night of ¡November 17 and 18, 1880, he left Elkhart, Indiana, in charge as conductor of a freight train with a caboose car at the rear, to come to Chicago, or defendant’s yards at 43d and 42d streets; that at some time in the early morning of ¡November ISth, the morning being cold and dark, McBride came with his train to within a half or three quarters of a mile of Englewood station, and about two miles of the point of destination, being with his train upon the west main track, and was there compelled to stop on said track on account of other trains standing upon it ahead of him; that when so stopping, he had a brakeman with him in the caboose car, of the name of Wishart; that there were other trains coming from the same direction McBride had come, which would have to come on the same track on which his train was standing, and which were then due, or would be in a short time ; that neither McBride nor said brakeman nor anybody else pretended to give any of the signals which were prescribed by a printed rule of the company for such a case, with which rule McBride was familiar, having had his attention called to it by it being shown to him and being posted up in the yard. It was as follows:
    “ When any train is behind time or delayed at a station, or upon the road long enough to be in danger of being overtaken or met by another train, the conductor must have signals posted at proper distances (not less than 800 yards) in each direction to prevent possibility of a collision. The proper signals to indicate danger are a red flag by day or red light by night, in connection with two torpedoes placed on the track, day or night, at least 800 yards (sixteen telegraph poles) distant in each direction of the road, and in such a position that the flag or light may be seen at least one mile before reaching the place of danger.
    “At night or in foggy or stormy weather, or at places where signals can not be seen for at least one mile, the flagman will place two torpedoes upon the rail, three yards apart, at a distance of at least sixteen telegraph poles from the train, and place another torpedo upon the rail, after which he will return to the place where he fixed the first torpedoes and remain there until recalled by the whistle of his engine. But if a passenger train is due he must remain until it arrives. When the flagman returns to his train, he will remove from the track one of the torpedoes which he first put down, leaving two (eight telegraph poles apiart) as a caution to any following train. If for any cause, the forward brakeman can not go forward, as a flagman to protect the train, when that is necessary, the fireman must go forward and use the same precautions. Both conductor and engineer are required to know that he has done so and that he is provided with proper signals.”
    It appears there was a semaphore.at the crossing over which McBride’s train was lying, but that it was not the purpose or object of said semaphore to furnish signals to incoming trains upon said main track; that both McBride and Wishart, without attending to giving any of the signals required by said rales or even placing a red light upon the end of the caboose of their train which was so exposed, both lay down in said caboose to sleep, and about four o’clock and before daylight, an incoming freight express which had the right of way, came from the east or southeast, upon said main west track on which McBride’s train was so standing, and those in charge of the running of the former, not seeing any signals, but seeing the semaphore, which showed a white light, and assuming that the track was clear, ran their train into the caboose wher; McBride and Wishart were asleep, and the former received an injury of which in a few hours he died. Wishart was injured but survived, and was called as a witness by both parties. H1 testified when called by defendant, that when they stopped, as above stated, he proposed to go out and put up signals; but McBride told him the semaphore would take care of them, and to lie down and take a nap. The plaintiff introduced evidence tending to impeach his credibility, by showing contrary statements made soon after the event.
    Ho negligence was predicated upon the circumstance that trains were standing on said main track ahead of McBride’s and which compelled him to stop.
    Mr. Cyrus D. Boys and Mr. Puny B. Smith, for appellant.
    Messrs. Clifford, Anthony & Paulsen, for appellee.
   McAllister, J.

If a person should take a blanket, and in the night time lie down upon a railroad track to sleep, knowing or having reason to know that trains would be likely to pass, and the servants of the railroad company, in ignorance of his presence there, should run a train over and kill him, no lawyer or jurist would consider that there was any liability on the part of the railroad company, in an action by his personal representatives in respect of such injury and death. And why ? Because he brought the disaster upon himself by his own negligence. It was a maxim of the Roman law that the harm which one’s negligence brings upon himself, he is to be considered as not having received ; so far as his relations to others are concerned the harm is uncaused. Wharton on Neg. § 130; C. & A. R. R. v. Becker, 76 Ill. 31.

Row, this case is nearly as plain a case of negligence on the part of the deceased, as that above supposed. He was the conductor of a freight train, with a caboose car on the end of it, and it was standing upon a main track, in the night time, where it was likely to remain for an indefinite period of time. The deceased knew that other trains from the eastward were due, or would be due, in a comparatively short time ; that one particular train might come at any time; that when it did come it would be upon the same track on which his train was standing, and that his caboose car was directly exposed to invasion by the locomotive of such incoming train. There was a rule of the company directly applicable to the government of his course of action in such case, which, if it had been followed, would have insured not only his own safety but that of the property he had in charge, and other property of his employer. It is a reasonable rule, and one to which full and complete obedience was imperatively demanded under the then existing circumstances." It imposed specific duties upon him as conductor. He was familiar with that rule. His attention had been pointedly called to, and he had promised to obey it. That the rule might not be forgotten, it had been kept posted in the yard whence he took his trains. We must hold, from the evidence, that McBride was familiar with that rule. On the occasion in question, totally disregarding the duties imposed upon him by it, for his own and the safety of the property of his employer, and without any precautions on his part to warn off incoming trains, by signals, or to apprise them of the presence of his train in that place, he lies down to sleep in that caboose car, thus exposed, in the darkness of the night; and while thus asleep a train comes and the caboose is run into, destroyed, and he receives his death. It is nowhere pretended that any of the persons in charge of the train which did the mischief were aware of the presence of McBride’s train on, the track on which they were going, because there was literally nothing to indicate such presence. It seems to us, in whatever light we view this case, that McBride’s injury was the proximate result of his own negligence. To-recover in this ease two things must concur, viz.: negligence on the part of the deféndant and no want of ordinary care on the part of the deceased. The evidence shows and we think without any conflict, that the deceased, manifestly, was not in the exercise of ordinary care to avoid being injured. The jeopardy to life, limb and property was great and imminent. It was just such a case as was in contemplation when the rule of the company, to which we have frequently adverted, was framed and adopted. The duty of placing the signals as therein required was imperative; and that there might be no failure, it was especially enjoined upon conductors and engineers to personally see to it that, the specific things required were done. If that rule had been complied with, in this instance, the disaster would not have happened.

We feel constrained to hold that the verdict of the jury should have been set aside by the court below, for the reasons stated; and for denying defendant’s motion to that effect, the judgment will be reversed and the cause remanded.

Judgment reversed.


author: Bailey, P. J.

text:
    The Tobey Furniture Company, Impl’d, etc., v. Lucy J. Rowe.
    1. Failure of appraisers to act—Equity.—While a court of equity will not specifically enforce a contract for arbitration by compelling the appointment. of arbitrators, or by compelling them to act when appointed, where the rights of the parties are made to depend upon an appraisal of property and the appraisal provided for in the contract has failed without the negligence of the party complaining, courts both of equity and of- law will interfere to prevent a failure of justice by hearing evidence and making the appraisement themselves.
    2. Appraisement op premises—Provisions in lease.—Promises were demised for twenty years and the rent for the first five years was at a fixed sum, and it was covenanted that there should be paid, as rent for the three remaining periods of five years, a sum equal to six per cent, per annum upon the appraised value of the premises; such appraisal to be made not more than sixty nor less than thirty days prior to the commencement of said periods respectively. The manner in which the appraisers were to be chosen, etc., was minutely prescribed in the lease. The lessor, in apt time, selected an appraiser possessing the necessary qualifications, appointed a time and place for the appraisers to meet, and gave the requisite notice to the lessees. Owing to circumstances over which the lessor had no control the appraisers failed to perform their duty, and no appraisal was made. The last provision of the lease was, “If no appraisal shall bo made upon which to determine a new or different rental, the rent shall continue the same as it was last fixed.” Upon bill in equity filed by the lessor, held, that the time prescribed for obtaining the appraisal was not of the essenqe of the contract, and lias no application to any case where the appraisal is defeated by any cause without the fault or negligence of the complaining party; that it was proper for the court below to hear evidence and find the value of the premises.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed February 3, 1886.
    On the 10th day of February, 1868, Lucy J. Davis executed a lease in writing, by which she demised to William and Charles Hopkinson, lot 1, block 3, fractional section addition to Chicago, for the term of twenty years from May 1, 1868. The demised premises are situated on the northeast corner of State and Adams streets, Chicago, and have a frontage of seventy-six and fifty-five one hundredths feet on State street, and about one hundred and forty-five feet on Adams street.
    The rent reserved by the lease was $4,000 per annum for the first five years, and the residue of the term was divided into thrge periods of five years, each., and it was provided that the annual rent for each of said periods should be a sum equal to six^pej^ent jriipiLtíie appraised[yalueuFtheJot. The language of the lease in relation to the reservation of rent was as follows :

      “ And the said William Ilopkinson and Charles Hopkinson, ]!arties of the second part, in consideration of the leasing of the said lot, piece or parcel of ground by the said party of the first part to the said parties of the second part, do hereby covenant and agree with.the said party of the first part to pay to the said party of the first part as rent for the said demised premises, lot, piece or parcel of land, as follows, to wit:
    “ 1st. There shall be paid for the first five years of the said term, or until the first day of May, in the year of our Lord, one thousand eight hundred and seventy-three, the sum of twenty thousand dollars, at the rate of four thousand dollars per annum, in the manner and at the times, and also such other payments, as hereinafter is provided.

      ee 2d. There shall be paid for each of the three remaining periods of five years of the said term of twenty years, a sum of money for each respective period equal to six per cent, per annum upon the appraised value of the said lot, piece or parcel of ground, upon an appraisal thereof to be made at the time and in the manner hereinafter provided, the payment thereof to be made at the times, and with such other payments as is hereinafter further provided.”
    Provision is then made for the payment of the rent in monthly installments, and also for the payment by the lessees of all taxes and assessments which should be levied or assessed on the property during the term, and the lease then proceeds as follows:
    ■ “ It. is further mutually agreed and understood that, at a time not more than sixty days nor less than thirty days before the termination of the first, second and third periods of five years respectively, of the term of this lease, there shall be an appraisal of the value of said lot, piece or parcel of land, which said appraisal shall be arranged and made in the manner following:
    “ 1st. The party of the first part shall select one person to act as appraiser, and shall give notice in writing of such selection, and of the time when and the place in the city of Chicago where the said appraisal is to be made, at least ten days before the day appointed by her for such appraisal, to said parties of the second part, and the said parties of the second part shall then, at least five days before said day of appraisal, give notice in writing of their selection of an appraiser to said parties of the first part, or her agent, or the appraiser nominated by her; and if said parties of the second part shall fail to make any selection or to give such notice thereof, then said party of the first part shall have the right to appoint r. second person to act as appraiser with the one first appointed, provided that no person shall be competent to act as appraiser for either of the said parties, except it be a person competent, judicious and disinterested, and the owner of real estate in that part of the city of Chicago known as the Sontli Division; and if the said two parties shall agree upon the value of said lot, piece or parcel of ground, such valuation, made under the conditions and in the manner herein provided, shall be binding upon the said parties hereto, as the basis upon which to determine, in the manner herein provided, the annual rent to be paid for the next ensuing period of five years. If the two appraisers so selected can not agree as to the value of said lot, they shall select a third like person as to qualifications to act as appraiser with them in the said matter, and the finding of the three appraisers, or a majority, of them, shall be in like manner binding upon the parties hereto.
    “2d. In case of the neglect or failure of the party of the first part to appoint an appraiser and give notice thereof, as above provided, at least forty days before the expiration of each or either of said first three periods of five years of said term of this lease, then said parties of the second part may immediately give notice to said Iparty of the first part, or to her agent to whom they last paid rent, for her, and appoint a time, not less than five days thereafter, and place, in said city of Chicago, of appraisal, at which time and place it shall be the duty of each of said parties to be present with a person selected as appraiser, and an appraisal shall be made by the said appraisers in manner as herein provided; and in case of the failure of either of the said parties hereto to appear at such time and place with some person selected so to act as appraiser, the party appraising may have the right to appoint se second person to act as appraiser, and such appraisers shah make the appraisal as herein provided, appointing a third appraiser to act with them in case of necessity, and the appraisal so made shall be binding upon the parties hereto.
    “ 3d. If no two of said appraisers can agree upon the said value, they shall so report, and also report the valuations fixed by them respectively, and the mean sum between the highest and the lowest of such findings shall be taken and considered as the valuation of the said lot, piece or parcel of ground at such time.
    “4th. The question to be submitted to the said appraisers at the time of each appraisal shall be: ‘ What, in your candid judgment, is the present fair cash value of the said demised ] .remises, not taking into consideration the improvements thereon? ’ And all reports of appraisers shall be made in writing.
    “ 5th. Six per centum of the valuation of the said lot, piece or parcel of ground, exclusive of impi ovemcnts thereon, thus found by the said appraisement, shall be the rent to be paid by the said parties of the second part for the premises for the next ensuing period of five years after such appraisement is made» to be paid, together with taxes, all according to the several provisions herein contained.
    “ 6th. If no appraisal shall be made upon which to detei - mine a new or different rental, the rent shall continue the same as it was last fixed.”
    On the 29tli day of April, 1870, said lease was, with the consent of the lessor, assigned by the lessees to Jonathan Clark, and said Clark thereupon, by an instrument in writing, assumed and obligated himself, his heirs, executors, administrators and assigns, to keep and perform all the covenants and terms of the lease. Shortly after the fire of October 9, 1871, said Clark erected on said lot a large four story and basement business building, which now stands thereon.
    Prior to the commencement of the second five years of said term, appraisers were appointed in pursuance of said lease, to fix the value of the lot in order to determine the amount of the annual rent for the next five years; but the appraisers failing to agree, the lessor, then Mrs. Lucy J. Rowe, and said Clark fixed the value of the lot at $114,000 by agreement, and for the ensuing five years rent was computed upon that valuation. This agreement was made on or after May 1, 1873. 3STo appraisers were appointed to fix the valuation of the lot for the third period of five years, but on or about the first day of May, 1878, the parties, by agreement, fixed the value of the lot at $72,000 and the rent at $4,320, per annum.
    On the 10tli day of February, 1881, Clark executed to Carson, Pirie, Scott & Co., a lease, by which he underlet said premises to them from May 1, 1882, to the expiration of said term, at an annual rental of $7,000, and it was provided in the lease that said Carson, Pirie, Scott & Co. should also pay the said Clark as part of the rent for said premises, “ all increase in ground rent under lease held by said first party of the land upon which said buildings are situate, over to the present rental of $4,320 per annum, (till May 1, 1883,) all increase in such ground rent after said Maj-1, 1883, during said term to be paid in equal monthly installments.”
    On the 9th day of January, 1883, said Carson, Pirie, Scott & Co., executed a lease to the Tobey Furniture Company, by which they underlet said premises to said company from February 1, 1883, to the expiration of said term, at an annual rental of $16,000, said lease containing a like provision for the payment by the Tobey Furniture Company to Carson, Pirie, Scott & Co., of any increase in the ground rent after May 1, 1883.
    For the purpose of obtaining an appraisement of said lot, as a basis for computing the rent to be paid under the original lease for the last five years of the term, Mrs. Rowe, on the 16tli day of March, 1883, selected William E. Hale, who appears to have been a properly qualified person, as her appraiser, and fixed March 29, 1883, as the time and the office of said Hale, as the place for making the appraisement, and gave ten days’ notice to said Clark of such selection, and of the time and place of making the appraisement. Clark thereupon selected O. B, Phelps as his appraiser and gave Mrs. Rowu due notice of such selection. At the time and place appointed líale and Plielps met, as appraisers, but failed to agree, Hale estimating the value of the lot at §3,000 per front foot on State street, and Phelps estimating it at only §1,500 per front foot. Said appraisers thereupon adjourned and met from day to day for the purpose of agreeing upon a third appraiser. Two or three were agreed upon who declined to act, wdien Halé and Phelps finally agreed upon L. Z. Leiter, who was then absent in Washington. Leiter was written to, and on his return, which took place April 13th or 14th, he saw both Hale and Phelps and agreed to act as an appraiser. Phelps soon after having ascertained from Leiter the latter’s estimate of the value of the lot, told him that it was too high and that he could not accept him as an umpire. After this nothing seems to have been done by Hale or Phelps in relation to an appraisement. During the month of April, and while these matters were pending, Clark had several interviews with Phelps in which he urged him to come to some agreement with Hale or appoint a third appraiser, and at the last of which Phelps peremptorily refused to act any longer as an appraiser, batmlflnsTefusal upon the ground that, by the terms of the lease, the time within -which an appraisement could be made had expired.
    Mrs. Eowe thereupon filed her bill in equity against said Clark, said Carson, Pirie, Scott & Co., the Tobey Furniture Company, and Phelps and Hale, alleging the foregoing facts; also, that on the 29th day of March, 1883, said lot was fairly worth §3,000 per front foot on State street; thatPlielps, as appraiser, combined and confederated with the officers and agents of the Tobey Fnrniture Company, which was liab’c to pay any additional ground rent, to defraud complainant and to prevent any appraisement under the lease, and to that end .he sometimes neglected and refused to act with said Hale as such-appraiser, and to join with him in selecting some third person as appraiser, in conformity with said lease; that at other times he agreed with said Hale in such selections and afterward interviewed the person selected, without the knowledge of the complainant or Hale, and ascertained his opinion as to the value of the premises, and then declined to act with him or permit him to act as such appraiser; that said Phelps, with a fraudulent purpose, neglected and refused to report in writing his action as appraiser, and refused to attend adjourned meetings of the appraisers, and with fraudulent intent to prevent any appraisement under the lease, hindered and prevented any appraisement of the premises previous to the commencement of the last five years of the term of the lease.
    The hill also charges that on or before March 29,1883, said Hale and Phelps were furnished by the complainant with the lease for their use in making the appraisement, and that said appraisers were carelessly ignorant of the fact that, under the terms of the lease, the appraisal of the premises was required to be made thirty days before April 30, 1883, and that they carelessly and ignorantly allowed said time to expire without completing the appraisal.
    The bill prayed that said appraisers he decreed to proceed under the direction of the court, to select a third appraiser and appraise said premises in conformity with the lease and under the order of the court,(fgo’/that the court fix and determine the value of the premises and fix the rental value thereof, or authorize said Clark to agree upon the rental value of said premises, and decree that the same be binding upon the defendants.
    Defendant Clark filed his cross-bill, praying that whatever decree should be rendered in the cause should be made binding upon Carson, Pirie, Scott & Co. and the Tobey Furniture Company; and Carson, Pirie, Scott & Co. filed a similar cross-bill, praying that the decree should he made binding upon the Tobey Furniture Company. Answers and replications were filed, and the cause coming on for hearing, on pleadings and proofs a decree was rendered, by which the court found, among other things, that the complainant had done all that was reasonably required of her to procure an appraisement of said premises under the terms of the lease, and that the failure to complete the same was not due to any mistake or negligence on her part, and that such, failure to complete the appraisement was the result of accident or mistake on the part of said Phelps as appraiser; that Hale and Phelps, until about the middle of April, 1883, were carelessly ignorant of the fact that by the terms of the lease the appraisal was to be made not less than thirty days before April 30, 1883, and that they ignorantly or inadvertently allowed such time to pass without making an appraisement; that the time within which an ap . praisal was to be made under"tlm Tease was~~not_ggscntial, and; that it was not expressly made nor was it of the essenc?TTTfTilio contractJlBBt=ftF^ppra should be made withinsaTH tiiSe or in saicfmanner, but that-the appraisal was a mere method of determining the value of the uremisesnTSarch, 1883, and thafjlsjálnS^^ the essential thing under the. lease. The court further found that an appraisal of the value of the premises under the lease might be made by the court. The court thereupon found and decreed that the actual cash value of the lot, not taking into consideration the improvements thereon, in March, 1883, was §149,825, and that the annual rent, being six per cent, of that amount, for the last five years of the term of the lease, should be $8,989.50, and the decree ivas made obligatory on Carson, Pirie, Scott & Co. and the Tobey Furniture Company. From this decree the Tobey Furniture Company has appealed to this court.
    Mr. Jno. N. Jewett & Jewett Bros. and Mr. H. N. Hibbard, for appellant.
    Messrs. Dupee, Judah & Willard and Mr. D. L. Shorey, for appellee;
    that the time within which the appraisement was to be made was not of the essence of the contract, cited Story’s Eq. Jur. §§ 771, 776, 780; Wynn v. Morgan, 7 Vesey, 202; Hood v. Hartshorn. 100 Mass. 117: Renwick v. Renwick, 1 Bradf. (N. Y.) 234.
   Bailey, P. J.

By the lease in question the appellee demised the premises' therein described for a term of twenty years, and the rent reserved for the first five years of the term was the fixed sum of $4,000 per annum. It was then covenanted that there should be paid as rent for each of the three remaining periods of five years, a sum equal to six per cent, per annum upon the appraised value of the demised premises, such appraisal to be made not more than sixty nor less than thirty days prior to the commencement of said periods respectively.

The manner in which the appraisals were to be made was minutely and circumstantially prescribed. The appraisers were to be competent, judicious and disinterested persons, owning real estate in that division of the city of Chicago in which the demised premises were situated. Each party was to select one appraiser, and give notice to the other of the selection. Provision was made for the appointment of a second appraiser in case of the failure of either party to make a selection. The party first appointing was authorized to fix a time and place for the meeting of the appraisers. In case of disagreement, the first two appointed were to select a third to act with them, and the finding of a majority was to he binding. If no two of the three could agree, the mean between the highest and lowest estimates was to be the appraisal, y/' For the purpose of obtaining the appraisal of the premises / for the last period of five years, the only one now in controversy, the appellee, in apt time, selected an appraiser possessing the necessary qualifications, appointed a time and place for the appraisers to meet, and gave the requisite notice to the lessee; and it is not, and under the evidence we think it can not be, successfully disputed, that she did everything required of her by the terms of the lease in order to have an appraisal duly made. Owing to circumstances for which she was in no way responsible, and over which she had no control, the appraisX ers failed to perform their duty, and no appraisal was made ae- \ cording to the terms of the lease.

X "What then are her rights under the covenant in relation to the payment of rent? Are the mere time and mode of making the appraisal so far a matter of the substance of that covenant, that the failure to make the appraisal at that time and in that mode, without fault or negligence on the part,of the appellee, must be held to deprive her of the right to receive as annual rent, six per cent; of the value of the premises?

. The doctrine seems to be well supported by authority, that /while a court of equity will not specifically enforce a contract for arbitration by compelling the appointment of arbitrators, í or by compelling them to act when appointed, still, where the Í rights of the parties are made to depend upon an appraisal of property, and the appraisal provided for in the contract has failed without the negligence of the party complaining, courts both of equity and of law will interfere to prevent a failure of justice by hearing evidence and making the appraisement themselves.

Hood v. Hartshorn, 100 Mass. 117, was a suit upon a covenant in a lease, by which it was agreed that at the expiration of the term the buildings erected by the lessee on the demised premises should be appraised by three disinterested men, to be chosen, one by the lessor, one by the lessee, and the third by the two thus appointed, and that the lessor should purchase the buildings at the price fixed by such appraisers. Certain persons were appointed appraisers who refused or neglected to act, and the lessor refused to join in the selection of others to act in their stead. It was held that the obligation of the lessor to pay for the building was not entirely dependent upon the making of an appraisal, but that the appraisal was to he regarded as a mere method of ascertaining the price to he paid for them; that while the less$£ ivas bound to do all that was reasonably in his power to procure the stipulated appraisa1, yot if he had done so and failed, he was entitled to recover tbti value of the buildings to be assessed by a jury.

Phippen v. Stickney, 3 Metc. 384, was a suit upon an agreement under seal, by which the defendant covenanted to sell and convey to the plaintiff certain lands which he was about to purchase at auction, on such terms as three persons,.specifically designated, should decide to be just and reasonable. But two of the arbitrators named agreed to an award, the third dissenting and refusing to sign it. The defendant having refused for that reason to perform the award, snit was brought to recover a penalty for default, fixed by the agreement, and the court, in sustaining the plaintiff 3s right to recover, say: “ In a case like the present, if it appeal’s that the plaintiff has done all i i his power to procure an award, fixing' the amount to he paid by him, in pursuance of the terms of the contract, we do not think that the act of any one of the persons thus selected as arbitrators, in refusing to concur with his associates1 in fixing the sum to he paid, should operate to divest the rights of the plaintiff arising under the contract.”

In Lowe v. Brown, 22 Ohio St. 463, the plaintiff leased certain premises to the assignor of the defendant, for ninety-nine years, from September 5, 1850, renewable forever. For the first twenty years the rent was fixed, but it was covenanted that at the expiration of that period, and of each successive period of twenty years, the premises should be re-valued by three disinterested men to be selected, one by the lessor, one by the lessee, and a third by the two thus chosen, and that the annual rent should be eight per cent, upon such valuation. At the expiration of the first period of twenty years appraisers were appointed, as provided by the lease, two of whom joined in an appraisal in writing, while the third refused to agree to or sign the appraisal. The plaintiff, claiming that the appraisal was invalid on account of the non-concurrence of one of the appraisers, proposed the selection of three others, but the defendant, insisting that the appraisal was valid, refused to do anything further. The plaintiff, thereupon, after the first installment of rent had become due, brought his action to annul the appraisal, and to have the premises valued as a basis for the annual rent for the second term of twenty years, and to recover the amount of rent then due. The court set aside the report of the two appraisers and referred the case to the master, to take testimony and report the value of the premises, which was done, and the master’s report was confirmed and fixed as the basis for the annual rent for the second term of twenty years. The Supremo Court, in refusing the petition of the defendant for an appeal, held, that the appraisal being invalid, the plaintiff was compelled to bring his action to set it aside and to settle, in some manner, the basis upon which to compute the annual .rent; that the refusal of one party to comply with the covenants of the lease could not defeat the other party in the judicial attainment of his rights, and that the mode pursued was in accordance with the practice of courts of equity in like cases, and was, under the circumstances, the best mode of ascertaining the true value of the leasehold, which was the principal matter in controversy.

Various other authorities are cited by counsel for the appellee, in which a similar doctrine is laid down, but we need not refer to them at greater length.

In the present case the court held that the appraisal pro vided for by the lease was a mere method of determining the value of the demised premises, the value itself being the essential thing; that the time prescribed by the lease for obtaining the appraisal was not made, and was not in fact of the essence of the contract; that the appellee did all that was reasonably required of her to procure an appraisal, but that owing to the fact that the appraisers were carelessly ignorant of the provisions of the lease, as to the time for mating the appraisal, and as the result of accident and mistake on their part, the value of the premises was not determined by them, and that such value might therefore be found by the court. In pursuance of these conclusions the court heard evidence and. found the value of the premises, and decreed that such valuation should be the basis for the computation of rent for th< last five years of the term of the lease.

While the case is by no means free from grave and serious difficulties we are inclined to the opinion that the decree was warranted by the evidence and by the rules of law applicable to the case. The main difficulty arises from the last provision of the lease in relation to an appraisal that, ^ If no appraisal shall be made upon which to determine a new or different rental, the rent shall continue the same as was last fixed'.”) Giving to this provision the broadest construction of which it is capable it would apply to every case where for any cause there had been a failure of an appraisal at the time and in the mode prescribed by the lease. But when the whole lease is considered we can not think that any such construction was within the contemplation of the parties. Counsel for the appellant seem to admit that if the appraisal should be defeated by the fraudulent acts and proceedings of one of the parties, or by the misconduct or fraudulent collusion of rhe appraisers with one of the parties to the prejudice of the other, a court of equity might interfere in the interest and for the protection of the party not in fault. We think we may go further and hold that the provision above quoted has no application to any case where the appraisal is defeated by any cause without the. fault or negligence of the complaining party.

If we consider attentively the very full and ample provisions for the appointment of appraisers and the making of an appraisement inserted in the lease, it will be seen that every contingency likety to arise to defeat the appraisal ^ after the initial step had been once taken, is carefully, and as it would seem, adequately provided against. It must have been the expectation of the parties that if either set on foot proceedings to determine the value of the premises, such proceedings would inevitably, or at least without any likelihood of failure, result in an appraisal. The miscarriage of the pro. ceedings, then, when once commenced, could not have been within the contemplation of the parties. The provisions /above recited, must have been intended to meet the case of a failure of the parties, either through negligence or choice, to take any steps toward availing themselves of an appraisal. In that case such provision would be highly important, ase without it, no specific amount of rent would be payable by the terms of the lease.

If the foregoing construction of said provision- is to be adopted, and we think it is the most reasonable one, it is clear that it does not take the ease out of the rule established by the authorities above cited. The appellee having set on foot proceedings for an appraisal of the property, and having done everything in her power to bring about that result, she ought not to be defeated in her attempts to have the property appraised, and to entitle herself to the rent stipulated for in the case, by the non-feasance or misfeasance of the other party or of the appraisers. Having done her whole duty, her right to receive rent as provided by the covenant in the lease should, in the eyes of a court of equity, be deemed absolute^ and it was the duty of the court to apply the appropriate remedy to secure and effectuate such right. That it has done, and we are of the opinion that its decree was warranted by the law and the facts. The decree will therefore be affirmed.

Decree affirmed.


author: Per Curiam.

text:
    Calvin Gore et al. v. Emanuel Kramer et al.
    Chancery.—The court is of opinion that the demurrer to this bill brought by appellants in behalf of themselves and all other creditors of the firm of appellees was properly sustained.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed January 27, 1886.
    Messrs. Weiglby, Bulkley & Gray, for appellants.
    Mr. W. B. Cunningham, for appellees.
   Per Curiam.

This was a bill brought by appellants in behalf of themselves and all other creditors of the firm of Kramer Bros. & Co., “for an administration,” (in the language of appellants’ brief) “ of the assets of said firm.” The bill is very voluminous and complex, no less than seven bills having been filed by as many different complainants, in addition to the bill of the original complainants. The bill is of a somewhat novel character in our chancery practice. It is not a creditor’s bill, none of the complainants having put their claims into judgment, nor is it a bill in the nature of a creditor’s bill, and after a very careful examination of its allegations we find ourselves at a loss to determine upon what precise theory cognizable in a court of chancery the complainants base their claim for equitable relief. Aside from this, we find no allegation in either of the bills that at the time of filing the same, any of the complainants were the owners or holders of the promissory notes executed by the defendants upon which the complainants based their claims, and which are the only evidence that complainants were creditors of the defendants at the time of the filing of the bills. The mere averment of the execution of commercial paper to' complainants several months prior to the filing of the hill is not sufficient, since such paper may have been negotiated and in the hands of io?ia fide holders long prior to the filing of the bill. Uor is there any sufficient allegation of the insolvency of the partnership firm. The allegation that said defendant firm has no other property known to your orators out of which they can make their demands when due, save and except the said stock of goods and the unpaid amounts due said firm” is not an allegation of insolvency. Various other objections to the bill might be pointed out, but it is deemed unnecessary.

"Upon full consideration, we are of opinion that the de. murrer to the bill was properly sustained, and the decree of the court below dismissing the hill must therefore he affirmed.

Decree affirmed.


author: Wilson, J.

text:
    City of Chicago v. James Glanville.
    1. Municipal corporation not insurer.—A municipal corporation is not an insurer against accidents to persons traveling on its streets or sidewalks.
    2. Defective sidewalk—Liability.—In the absence of any acts of positive misfeasance on the part of its officers or employes, a city is only liable for failing to exercise reasonable and ordinary care and diligence to keep its streets and sidewalks in safe repair and condition. The essential inquiry being not merely whether a defect existed to the knowledge of the city but also whether the city had exercised reasonable and ordinary care and diligence to keep the sidewalk in safe repair and condition.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed January 27, 1886.
    This was an action on the case brought by appellee against the city of Chicago to recover damages for a personal injury to appellee occasioned by reason of the alleged negligence of the city in suffering a portion of the sidewalk on West Indiana street in said city to he out of repair. The declaration alleges that the defendant “'wrongfully and negligently suffered and permitted the same to be and remain in bad and "unsafe repair and condition, and divers of the planks wherewith said sidewalk was laid to be and remain broken and unfastened, by means whereof the plaintiff, who was then and there passing along and upon the said sidewalk, then and there necessarily and unavoidably tripped and stumbled,” etc., whereby he was injured. The evidence tended to show that the sidewalk at the place of the accident was double, the upper board being about an inch thick, and somewhat decayed and loose; that it was tipped up by a person walking just in advance of the plaintiff, and that plaintiff tripped upon it and fell, causing the injury complained of; that the plaintiff was familiar with the locality, having been in the habit of passing over the sidewalk for a considerable time in going to and from his work. There was a contrariety of evidence as to the condition and safety of the sidewalk at the place where the accident happened.
    The court, at the request of the plaintiff, instructed the jury as follows:
    “ The court instructs the jury that it is the duty of a city to keep its sidewalks in reasonably safe repair and condition, and if the jury believe from the evidence in this case that the plaintiff, while himself exercising ordinary care to avoid being injured, was injured as charged in the declaration, by means of a defective sidewalk in the city of Chicago, upon the south side of West Indiana street, and between the streets known as Desplaines street and Union street, and in the way and manner stated and set forth by the plaintiff in his declaration, and if they further believe from the evidence in this case that said sidewalk had been in defective condition for such a time prior to such injury, if any, that the corporate authorities of the city of Chicago having charge of the same, could, in the exercise of reasonable care and diligence, have known of the same and have repaired it, but failed to do so, and said plaintiff was injured in consequence of the negligence of the city in not repairing said sidewalk, and while exercising ordinary care and caution to avoid being injured, then the jury will find for the plaintiff.
    “ The court instructs the jury, as a matter of law, that when a sidewalk of a city is in a dangerous or defective condition and has so remained for such a length of time that the public authorities of the city, having charge of the same, could by the exercise of ordinary and reasonable care and diligence have-discovered the fact, then actual notice to such authorities of the condition of the walk will not be necessary, in order to hold the city liable for an injury sustained by a person in consequence of such dangerous or defective condition of the sidewalk, provided such person was at the time of the injury exercising ordinary care to avoid being injured.”
    To the giving of each of said instructions the defendant duly excepted.
    The jury found the defendant guilty, and assessed the plaintiff’s damages at $1,500. The defendant’s motion for a new trial being overruled, it appealed to this court.
    Mr. Hempstead Washbubne and Mr. Clabence A. Knight for appellant;
    cited City of Aurora v. Pulfer, 56 Ill. 270; City of Chicago v. Lavelle, 83 Ill. 482.
    Mr. James Peake and Mr. Chaeles E.Ptckabd, for appellee;
    cited Morgan v. Ryerson, 20 Ill. 343 ; Brenke v. Green, 48 Ill. 243; Stickle v. Otto, 86 Ill. 161; Addem v. Suver, 89 Ill. 482.
   Wilson, J.

The plaintiff’s first instruction, stripped of its formal verbiage, comes to this, that if a person is injured by a defect in the sidewalk of the city the existence of which the city knew or might have known by the use of due diligence, the city is liable in damages. Such is not the law. It has long been the settled doctrine in this and other states that a municipal corporation is not an insurer against accidents to persons traveling on its streets or sidewalks. It is not required to make its sidewalks perfect and free from every possible defect as a condition to immunity from liability for injuries that may happen by reason of defects therein. In the absence of any acts of positive misfeasance on the part of its officers or employes, it is only liable for failing to exercise reasonable and-ordinary care and diligence to keep its streets and sidewalks in safe repair and condition. The essential inquiry therefore is not merely whether a defect existed to the knowledge of the city, but also whether the city-had exercised reasonable and ordinary care and diligence to keep the sidewalk in safe repair and condition. Such was the ruling of this court in the case of City of Chicago v. Watson, 6 Bradwell, 344, in accordance with the uniform holding of the Supreme Court in numerous like cases. City of Joliet v. Verley, 35 Ill. 58; City of Bloomington v. Bay, 42 Ill. 503; City of Peru v. French, 55 Ill. 317; City of Aurora v. Pulfer, 56 Ill. 270; City of Chicago v. Bixby, 84 Ill. 82.

The test of liability is not merely whether there was a defect in the sidewalk which was known, or should have been known to the city, and from which the injury resulted, for this would be in effect to hold the city liable as an insurer, however diligent it may have been to keep its sidewalks in safe repair and condition. In a large city like Chicago, with its many miles of wooden sidewalks, we must assume that with the natural decay from wear and the action of the elements, its sidewalks are constantly becoming defective in places which the utmost vigilance on the part of the city may be insufficient to always at once repair. As was said in Chicago v. Bixby, supra,The law does not require the city to make such works perfect. We apprehend that there are few, if any, sidewalks in that or any other city that could not be improved and made better, and if so they are imperfect; and no court, we apprehend, has ever intentionally announced that such is the duty of a city.”

In the light of these views the error of the plaintiff’s first instruction is manifest. By it the jury were told that if the plaintiff was injured by means of a defective sidewalk, and that the same had been in a defective condition for so long a time prior to the accident that the corporate authorities having charge of the same, could, in the exercise of reasonable diligence, have known of the same and repaired it, and failed to do so, the city was liable, irrespective of whether the defect was of such a nature as to render the sidewalk unsafe or dangerous.

The true test of liability, namely, whether the city had used ordinary an 1 reasonable care and diligence to keep the sidewalk in safe condition and repair or not, was wholly omitted from the instruction, and the liability was made to depend upon the mere fact that there was a defect, known to the city, which it neglected to repair. This was not enough ; and the instruction was misleading, since the jury were expressly given to understand that proof of a defect in the sidewalk, irrespective of its character, known to the city, and a resulting injury to the plaintiff while in the exercise of due care, were all that was required to make out a cause of action.

The error in this instruction is not cured by any other, nor was the true rule on the subject anywhere specifically pointed out for the information and guidance of the jury.

The merits of the case under the evidence were, to say the least, doubtful, and the instruction ought to have been substantially accurate, for it involved the very gist of the action.

It may be added that the instruction is also erroneous in excluding the idea that the city is subject only to the duty of exercising reasonable diligence in keeping its sidewalks in repair. As defined in the instruction, it makes the duty of the city to keep its streets and sidewalks in reasonably safe repair and condition, absolute; while, as we have already seen, its duty is more restricted, requiring only the use of due diligence to keep them in safe condition.

For the error in giving the plaintiffs first instruction, the judgment of the court below is reversed, and the cause remanded for a new trial.

¡Reversed and remanded.


text:
    Frederick M. Kantzler v. Amanda Albertson.
    Replevin—Appeal bond.—In replevin, where plaintiff in justice’s court failed to appear, and judgment went against him and a, retorno habendo was awarded, and he appealed and gave the ordinary appeal bond, and the appeal so taken was dismissed and judgment of retorno habendo was awarded, in order to recover damages for not making return of the property replevied, suit should be brought upon the replevin bond and not upon the appeal bond.
    Appeal from the Circuit Court of Cook county; the Hon. John GL Rogers, Judge, presiding.
    Opinion filed February 3, 1886.
    One Weiderman, sued out of justice’s court, June 19, 1883, a writ of replevin against Albertson & Broad, for a horse, harness and wagon. The plaintiff in such writ giving replevin bond to the constable, the latter took the goods under the writ and delivered the same to the plaintiff in the suit. At the time for trial before the justice, the plaintiff, Weiderman, failed to appear, and judgment went against him and a retorno habendo was awarded. He thereupon took an appeal to the circuit court and gave a bond to Albertson, with Kantzler as surety, in the penal sum of three hundred dollars, conditioned in accordance with the form prescribed by statute for ordinary appeals from justice’s court, in these words: “How, if the said F. Weiderman shall prosecute his appeal with effect, and shall pay whatever judgment may be rendered against him by said court upon the trial of said appeal, or by consent, or in case the appeal is dismissed, will pay the judgment rendered against him by said justice, and all costs occasioned by said appeal, then the above obligation to be void, otherwise to remain in full force and effect.”
    The appeal so taken was afterward dismissed in the circuit court upon Albertson’s motion, and judgment of retorno halen

      do awarded. Thereupon said suit was brought upon said appeal bond, against Kantzler, their surety, in justice’s court, and taken by appeal to the circuit court, and upon a trial there, by the court without a jury, the court, against defendant’s objection, permitted the plaintiff, Albertson, the obligee in the bond, to introduce evidence of the value of the horse, harness and wagon so replevied; and such value having been shown to be two hundred dollars at the time the property was replevied, the court, without finding the amount of the debt, simply rendered judgment in the sum of two hundred dollars as damages, besides costs. The defendant moved to set it aside, which motion was overruled, and defendant excepted and brings the record here by appeal.
    Messrs. Abbott, Olives & Showalteb, for appellant;
    cited Rankin v. Kinsey, 7 Bradwell, 221.
    Mr. Daniel J. Deary, for appellee.
   McAllister, J.

In order to recover damages for not making return of the property replevied by Weiderman, Albert-son should have brought suit upon the replevin bond, instead ' of upon the appeal bond. Section 10 of the "Replevin Act expressly requires such bond to be conditioned that the plaintiff in replevin will make return of the property, if return of the property shall be awarded. 2 Starr & Curt. Stat. 2013. Nothing of the kind is required by any statute to be contained in the condition in a bond to be given upon appeal from a justice’s judgment, and no such effect was intended by tho legislature to be given to such appeal bonds. By section twenty-six of the Replevin Act, it is pirovided that in suits upon replevin bonds, if the merits of the case have not been determined in the action, the defendant may pilead that fact and his title to the property in dispute in the action of replevin. 2 Starr & C. p. 2018. No such right or privilege is extended to defendants in actions ivpon apipeal bonds. The merits were not tried in the replevin suit; so defendants were deprived of that right by this suit on the apipieal bond.

But there are no terms or words in the condition of the ap. peal bond on which this suit was brought, which can fairly be construed into an obligation on the part of Weiderman or his surety, to make return of the property replevied to the obligee or any other person. The obligation of the principal and sureties in a bond can not be extended beyond the plain and direct terms of such bond.

The law will not create a liability against a surety which he has not brought upon himself by his contract. Whitwell v. Burnside, 1 Metc. (Mass.) 39; Swanson v. Ball, Hempstead, 39. The admission of the evidence of the value of the property was erroneous.

The court below should have found the amount of the debt and given judgment for that, to be discharged upon the payment of damages. The fatal error, however, was in treating this appeal bond the same as if it contained the conditions in a replevin bond. The judgment will be reversed and the cause, remanded.

Judgment reversed.


text:
    Charles R. Erwin et al. v. Althea L. Hall et al.
    1. Deed of trust—Equitable title—Notice.—Where a party takes security by conveyance of real estate from the owner of the fee without notice of the rights of the cestui que trust in the property, he takes it freed from those rights, and the equitable title of the cestui que trust be comes subject and subordinate to the deed of trust and is liable to be extinguished by a foreclosure of the security.
    2. Sale—Duty of trustee.—The fact that the trustee at the sale in-such case was notified that the trust deed was executed by the party in fraud of the complainants’ rights, did not make it his duty to refuse to sell and to leave the parties to pursue their remedy in a court of equity.-
    3. Same.—Where the sale was advertised at ten o’clock and the trustee appeared at the place of sale at the hour appointed, and opened the sale by reading the notice, and remained on the ground until the sale was consummated, which was some time after eleven o’clock, but delayed in order to enable complainants to procure an injunction restraining the sale. Held, that the delay did not affect the validity of the sale.
    4. Destruction oe deed.—A deed is but the evidence of a conveyance, and the destruction of a deed, while it affects the evidence of the conveyance, does not vacate or affect the conveyance itself or re-invest the title in the grantor.
    Appeal from the Superior Court of Cook county ; the Hon. George Gardner, Judge, presiding.
    Opinion filed February 3, 1886.
    Hr. Charles H. Lawrence, for appellants.
    Hr. S. E. Hoore, for appellee.
   Bailey, P. J.

This was a bill in chancery brought by Charles E. Erwin and Emma A. Erwin against Althea L. Hall and others to redeem certain premises from a sale under a deed of trust. The facts out of which the controversy arose are somewhat complicated, and are substantially as follows:

On the 2d day of Harch, 1858, William Erwin, then of La Salle county, Blinois, executed his promissory note for §4,000 to E. E. Goodell, due one year after date, and secured said note by mortgage. On the 14th day of February, 1862, said Erwin died, leaving him surviving Althea L. Erwin, his widow, and the complainants, then of the age of two and four years respectively, his children and only heirs at law. After his death Goodell transferred the note and mortgage to J. O. Glover, to be held by him in trust for Hrs. Erwin, who was GoodelPs sister, so long as she should remain unmarried, and in the event of her marriage, for the benefit of the complainants, the trust being evidenced by a written declaration of trust by the trustee.

Glover afterward caused the mortgage to be foreclosed, and the proceeds, §5,476, were invested by him and the income paid to Hrs. Erwin until some time in 1868, when she was married to Hoses H. Hall, whereby the beneficial interest in said trust fund was determined as to her, and passed to her children, the complainants. Afterward, about June 2, 1868, Glover turned the fund over to Mrs. Hall for the purpose of enabling her to invest it in the purchase of an undivided one third of a lot in Chicago, for the benefit of the complainants, the other two thirds being at the same time purchased by Elvis Harwood and James Goodspeed. The price of tho lot was $20,000, of which each purchaser paid $5,000 in cash, and all joined in a mortgage upon the entire lot to secure the remaining $5,000 of the purchase money. The lot was conveyed to Harwood, Goodspeed and Mrs. Hall, nothing being inserted in the deed or put on record showing that Mrs. Hall held the one third interest conveyed to her in trust for the complainants. The evidence seems to show, however, that her co-tenants knew of the trust.

August 1, 1869, Mrs. Hall was appointed by the County Court of La Salle county, guardian of the complainants. On the 27th day of May, 1870, she borrowed of one McClaughry $8,200, and gave therefor the joint notes of herself and her husband, maturing two years after date and bearing interest at the rate of ten per cent, per annum, and secured said notes by a deed of trust upon the undivided one third of said lot to one Itowley, as trustee, and to one Funess as his successor in trust. Said trust deed and notes having been destroyed by the great fire of October 9, 1871, a new set of notes and trust deed of like form were executed on the twentieth day of the following May, as evidence of the indebtedness and the security on said lot. It does not appear that either McClaughry or Bowley had notice that they were dealing with trust property.

The evidence fails to show with entire certainty what disposition was made by Mrs. Hall of the money borrowed, but it tends to show that about $1,800 was applied in payment of one third of the $5,000 purchase money mortgage, and that of the residue about $600 was used in paying a debt of Mrs. Hall, and part taken by Mr. Hall, and part applied by Mrs. Hall to the payment of family expenses. Interest was paid on the note to McClaughry, and the note extended from time to time, to November 27, 1876.

Mrs. Hall having, with her husband, removed to Chicago, appears to have collected rents for herself and co-tenants, and in that way she became indebted to Francis Goodspeed, the grantee of James Goodspeed, in the .sum of $521. 22. On the 1st day of January, 1877, she and her husband executed their promissory note to said Francis Goodspeed for $900, due in one year, and secured said note by a second deed of trust to one Knox upon the undivided one third of said lot. A part of the consideration of said note was the portion of said $521.22 then remaining unpaid, and the residue was for money loaned to Hr. and Hrs. Hall. By a cotemporaneous agreement, it was provided that Hrs. Hall’s one third of the rents should be collected and applied in payment of the note.

Default having been made in the payment of the HcOIaughry note, the property was advertised for sale under the trust deed by Bowley, the trustee, on the sixth day of Harch, 1878, at ten o’clock a. m. at the door of the court house in Chicago. Between nine and ten o’ clock in the morning of that day, a bill for an injunction restraining the sale was presented to the Circuit Court of Cook county, on behalf of the present complainants) by their next friend, and a preliminary injunction ordered to issue upon the filing of a certain injunction bond. Pending the application for an injunction, the hour of ten o’clock arrived) whereupon the trustee went to the door of the court house and read the notice of sale, and remained there without proceeding further, awaiting the result of the application. After the injunction was allowed, Hr. Hall, in behalf of the complainants, attempted to obtain a surety on the injunction bond, and the trustee waited for him to furnish such surety until after eleven o’clock, and Hall having failed to produce a surety who could justify, the trustee again read the notice of sale and sold the property to Henry W. Harwood for $3,700. It is claimed and the evidence tends to show, that at the time of the sale, Harwood had notice of the interest in said property claimed by the complainants.

Said bill was retained after the sale and remained pending until April 8, 1880, when it appears to have been dismissed by the court for want of prosecution. The certificate of evidence recites that said bill was read in evidence by the defendants,. on the trial of the present suit, but the bill itself does not appear in the record, and we accordingly have no means of knowing the nature of its averments. While said bill was pending both of the complainants attained their majority, Emma A. Erwin on the 25th day of January, 1879, and Charles E. Erwin on the 21th day of September, of the same year.

On the 25th day of January, 1881, the complainants filed a second bill which, as is claimed, stated substantially the same grounds of relief as the first. By that bill they alleged that they were the equitable owners of the undivided one third of said lot, and that at the time of the execution of said trust deed to Rowley, both McClaughry and Rowley had notice of their equitable rights to said lot, and praying for a partition and conveyance to them in severalty of the one third of said lot, and for a cancellation of said deed of trust. To that bill answers and replications. were filed, but no efforts seem to have been made by the complainants to support their bill by evidence, and on the 12th day of June, 1882, the bill was dismissed by the court on its own motion, for want of prosecution. Nothing further was done until December 12, 1882, when the present bill was filed.

In this bill there is no averment that McClaughry or the trustee had notice of the complainants’ equitable rights, at or before the execution of the deed of trust, but merely that at and before the trustee’s sale, both they and Harwood, the purchaser; had notice. The prayer of the bill is that the complainants be permitted to redeem from the sale.

As the validity of McClaughry’s trust deed is not now questioned, we are unable to see how the complainants could take anything by notice to the 'purchaser of their equitable rights prior to the sale. McClaughry having taken his security by conveyance from Mrs. Hall, the owner of the fee, without notice of the complainants’ rights, took it freed from those rights, and the complainants’ equitable title thereby became subject and subordinate to the deed of trust, and like any other subordinate interest, was liable to be extinguished by a foreclosure of the security. If, then,' the sale was conducted fairly and properly, and in strict accordance with the power in the deed of trust, the complainants’ equities were foreclosed and cut off, and the purchaser’s title was in no way affected by previous notice of their rights.

It is urged that the trustee, upon notice that the trust deed had been executed by Mrs. Hall in fraud of the complainants’ rights, should have refused to proceed, and left the parties to pursue their remedy in a court of equity. Ho authorities are cited sustaining this view, and we know of no rule of law which imposed such duty on the trustee. Default having been made in the payment of the note, McClaughry had a right to have his security foreclosed, and it became the duty of the trustee, at his request, to proceed to execute the power in the deed of trust. We can not see how this right of Mc-Claughry could be affected by the fact that, the complainants had been defrauded, so long as ho was in no way participant in or responsible for the fraud. Had the matter been submitted to a court of equity, it can not be doubted that Mc-Claughry’s right to a first lien would have been sustained and a foreclosure and sale decreed.

The material question, so far as this branch of the case is concerned is, whether the sale was made in conformity with the power granted in the deed of trust. We see no force in the objection that the sale, though advertised for ten o’clock^ was not in fact made until after eleven o’clock. The trustee appeared at the place of sale at the hour appointed and opened the sale by reading the notice, and remained on the ground until the sale was consummated. The delay was at the instance and for the benefit of the complainants, and to enable them to procure an injunction restraining the sale. So long as the trustee appeared at the hour appointed and remained until the sale was made, it was not essential that the land should be struck off at precisely the hour named. Circumstances may have arisen which would have justified the trustee in keeping the sale open a much longer time than he did.

It is alleged that the sale was invalid because of an agreement between Harwood and Goodspeed that the latter should not bid against the former. We find no evidence of such agreement. Goodspeed was a junior incumbrancer, and before the sale there was some conversation, between Harwood and Goodspeed about the former purchasing the latter’s interest, in which Harwood said that he proposed to buy the property, and that if he succeeded in doing so, he would pay off Goodspeed’s claim; but it does not appear that his proposition was accepted by Goodspeed, or that anything was said about the latter’s becoming a bidder, and certainly there was no evidence of an agreement that Goodspeed should not bid.

It is finally urged as a ground for relief, that the sale was made, not under and by virtue of the original trust deed executed May 27, 1870, but of the deed executed May 20, 1872, after the first deed had been destroyed by fire. It is claimed that as the first deed conveyed the fee, the second deed could and did convey only the grantor’s equity of redemption, and that the equity of redemption was the only interest really subject to sale under the last deed. This view may be ingenious, but it has no substantial basis. It is not necessary to resort to the doctrine of merger to give to the second deed all the effect of a conveyance of the fee, and that doctrine in fact has no application. A deed is but the evidence of a conveyance, so that the destruction of the deed, while it affects the evidence of the conveyance, does not vacate or affect the conveyance itself, or re-invest the title in the grantor. Courts of equity frequently decree the re-execution of deeds which have been lost or destroyed, but it has never been held that such re-execution operates as a new conveyance, but merely as furnishing evidence of a conveyance already made. What the courts will compel parties to do, they may do themselves with like effect. Here the deed of trust and notes were destroyed, without the fault of the holder, and he had a right to resort to a court of equity to compel their re-execution. Instead of requiring him to do so, the grantors voluntarily re-executed the papers, as substitutes for and to take the place of those destroyed. A deed of trust executed under these circumstances was not a new conveyance, but merely evidence of the conveyance made by the original deed. On consideration- of- all the- evidence, we are of the opinion that, a right to redeem has not been shown.

It is. urged on behalf, of the appellees-that, even if the complainants ever had-any right to relief as against the trustee’s sale, they have lost it by their laches. The conclusions which we have already reached render it unnecessary for us to examine that question. Without reference to . the. question of laches, we think the decree is warranted by the evidence, and it will therefore.he affirmed.

Decree affirmed.


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    J. L. Prescott et al. v. Alexander White.
    1. Misconduct oe agent.—The person who bargains to render services for another is deemed in law to undertake for good faith and' integrity in the performance of his duties and is liable in damages to his employer for negligence, bad faith or dishonesty. For gross misconduct in the course of-his agency or intentional frauds, upon his principal,- he may be held.to have forfeited all right to compensation as respects any of the business of the principal into which such fraud or misconduct shall have entered;
    2. Same—Evidence.—The right of a principal to - insist - that his agent has forfeited his right to compensad! on by reason of intentional, gross miscon. duct and fraud can not be dependent upon the principal’s.ability to show the precise extent of the injury to him on account of such misconduct and fraud by facts and figures.
    Appeal from the Superior Court of Cook county ; the Hon. Joseph E: Gaby, Judge, presiding.
    Opinion filed February 17, 1886.
    This was a suit by appellee against appellants, to recover for services and expenses by the former, while acting as agent and traveling salesman for the latter in the sale, of a certain stove polish, of which the defendants were manufacturers, in the State of Maine. There was a trial by jury, term!Bating in a verdict and judgment for plaintiff, in the sum of §340.66, from, which defendants took this appeal.
    On the trial the plaintiff gave testimony tending to prove that defendants were partners in the business of manufacturing said stove polish, and the sale of it to retail dealers; that in December, 1883, defendants employed him as a traveling salesman in the Western States to obtain orders for said stove polish at a salary of §80 per month and necessary expenses, aad that defendants were indebted to him for a balance of §313. The defendants introduced evidence tending to prove that plaintiff had violated their positive instructions in repeated instances, in returning to them orders-from supposed customers, to be filled by defendants, which were not signed by such respective customers; that he had, in the course of said employment as defendants’ agent, been guilty of repeated acts of dishonesty in sending in to be filled numerous orders which were either wholly fictitious or so unfairly obtained that the persons purporting to have given them refused to accept and pay for the goods, and which involved the defendants in-trouble, losses, and expenses, which, in a large number of instances were specified in the evidence.
    The court, at the instance of plaintiff’s counsel, gave to the jury the following instructions :
    2. “ The jury are instructed that the defendants are held to the same strict proof of their cross-claim, as the plaintiff is in making out his case, and that it is not enough that defendants simply say they were damaged a certain amount by reason of plaintiff’s conduct, but defendants must prove facts and circumstances from which the jury may deduce their own conclusions, and estimate the amount of such damages, if any. Unless the defendants prove, by a preponderance of the evidence in-this case, that they were actually damaged by, and through, and on account of frauds perpetrated on them by plaintiff, while in their employ, and also prove the amount of such damages by facts and figures, or, if the jury shall believe from the evidence that the defendants’ cross-claim for damages is vague and uncertain, and incapable of estimation, then the jury shall disregard entirely so much of the counter-claim of defendants as can not be ascertained with reasonable certainty, and find for the plaintiff, for the amount due him, if any, over and above whatever counter-claim may have been thus proved.
    3. “If the jury believe from the evidence that the plaintiff was in the employ of the defendants, as their traveling salesman, for the sale of their manufactured goods and merchandise; and if they shall further believe from the evidence that one or more parties did purchase defendants’ goods and merchandise, through plaintiff, White, as their agent, and then subsequently refuse to accept such goods when shipped by defendants to them, and thereby loss accrued to defendants, then the court instructs the jury that such losses are not subject of set-off or counter-claim as against the demand of plaintiff, unless the jury shall also find from the evidence that plaintiff agreed to make good such losses; that an agent or traveling salesman is not held in law as a guarantor of any losses that may occur to his employer or principal, through sales made by such agent, unless such agents expressly agree to stand such losses, and shall also receive extra compensation on account of such guaranty, as a consideration for such contract of guaranty.”
    Hr. Emery S. Walker, for appellants;
    as to liability of agent, cited Story on Agency, §§ 217, 218 ; Shipherd v. Field, 70 Ill. 438; McDermid v. Cotton, 2 Bradwell, 297; Fairman v. Bavin, 29 Ill. 75 ; Caffrey v. Darby, 6 Ves. 490.
    Messrs. Wilson & Zook, for appellee.
   McAllister, J.

The person who bargains to render services for another is deemed inlaw to undertake for good faith and integrity in the performance of his duties, and is liable in damages to his employer for negligence, bad faith or dishonesty. Hot only that, but the law goes further: For gross misconduct in the course of his agency, or intentional frauds upon his principal, he may be held to have forfeited all right to compensation as respects any of the business of the principal into which such fraud or misconduct shall have entered; Story on Ag. §§ 332, 333; Vennum v. Gregory, 21 Iowa, 326; Sea v. Carpenter, 16 Ohio, 412; Jones v. Hoyt, 25 Conn. 386.

The evidence on the part of defendants below tended to prove gross misconduct and intentional frauds on the part of plaintiff, in the course of his agency, which resulted in trouble, loss and expenses to his employers, the defendants, which would have justified the jury in finding that he had forfeited all right to compensation for services during the time he so misconducted himself. In this aspect of the case, and in view of the Law as above stated, the second instruction to the jury on behalf of the plaintiff, was clearly erroneous and misleading; for it, in effect, told the jury that the plaintiff was entitled to the full amount of his compensation, unless the defendants not only proved the frauds perpetrated upon them by a preponderance of the evidence, but also the amount of damage defendants sustained on account of such frauds, by facts and figures, to a reasonable certainty.

We are of opinion that the right of a principal to insist that his agent has forfeited his right to compensation by reason of intentional, gross misconduct and fraud, can not be dependent upon the principal’s ability to show the precise extent of the injury to him on account of such misconduct and fraud, by facts and figures. Such a rule would be unreasonable, because, in many instances, the agent alone would be possessed of the means by which that could be shown, and the law would cast the burden of explanation upon the agent. Jones v. Hoyt, supra.

The third instructionfor plaintiff was likewise erroneous, because it contained no hypothesis that, in the cases where the parties had purchased defendants’ goods, and then subsequently refused to accept them, such refusal was not on account of any fault on the part of plaintiff. The ease shows that the defendants claimed no damage by reason of such refusals, except- in cases where plaintiff had been guilty of misconduct in respect to the orders for goods.

The judgment will be reversed and the cause remanded.

Judgment reversed.


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    William F. Comstock v. Fred Oderman.
    Landlord and Ten ant---Trespass—Pleading.—An action of trespass brought against a landlord by .a tenant for breaking and entering the demised premises and raising the building, whereby the tenant’s walls were cracked, etc.; the landlord filed a plea of not guilty. Held, proper to disallow the justification, to-wit: that the building was unsafe and the work was simply done to strengthen it. Such justification should have been specially pleaded and evidence of the justification is admissible only in mitigation of damages.
    Appeal from the Superior Oourt of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.
    Opinion filed February 17, 1886.
    Messrs. Wilson & Zook, for appellant;
    that if the building in question, a part of which was leased to appellee, was in fact, at the time of the execution of the lease, in an unsafe or dangerous condition, and knowledge of such condition was afterward brought to the attention of appellant, it was his duty to make such repairs upon said building as would render the same reasonably safe to life, property, and occupancy, and for such entry and such repairs he would not be liable to appellee in an action of trespass, cited Taylor’s Landlord and Tenant, 7th Ed. §174; 4 Wait’s Actions and Defenses, 256; 14 Am. Law Reg. (N. S.) 646; Cooley on Torts, 324; Meader v. Stone, 7 Met. 147; 2 Greenleaf on Evidence, § 619; Bigelow v. Jones, 10 Pick. 161; Blood v. Wood, 1 Met. 528; Kenebeck v. Call, 2 Mass. 486; Taylor v. Whitehead, 2 Douglas, 745 ; Bullard v. Harrison, 4 M. & S. 387.
    Mr. Levi Sprague, for appellee;
    as to pleading, cited 1 Chitty Pl. 538; 2 Greenleaf on Evidence, § 625.
   Bailey, P. J.

This was an action of trespass, brought by Oderman, the appellee, against Comstock the appellant. The declaration contains four counts. The first count alleges the demise by the defendant to the plaintiff of a suite of rooms in a certain building known as 291 and 293 Wabash avenue, in the city of Chicago, the lease containing a covenant for quiet enjoyment, and also alleging that the defendant, during the term of the demise, with force and arms, broke and entered the demised premises, and by means of screws, levers, posts and pillars, raised said building from its foundations, thereby breaking and damaging the walls and ceilings, and rendering the premises unfit for the purpose for which they were demised to the plaintiff, to-wit, for the purpose of a dwelling for the plaintiff and his family. The second and third counts allege the breaking and entering of the demised premises by the defendant, with force and arms, and damaging the same in certain manner in said counts respectively specified; and the fourth count charges the defendant with breaking and entering said premises, with force and arms, and evicting and expelling the plaintiff from the possession thereof. The defendant appeared and filed a plea of not guilty, and upon the issue thus formed, a trial was had before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for 8150 damages.

The evidence tended to show that, during the term of the lease, and while the plaintiff was in possession of the portion of the building demised to him, consisting of a suite of rooms in the fourth story, the defendant employed certain men to enter said building, and by means of screws, blocks, etc., to raise up a portion or one side of the building, which had-settled below its original position several inches, whereby the floors, walls and ceilings of the plaintiff’s rooms were cracked and injured, the watér pipes and water closets obstructed, and the plaintiff’s premises rendered uncomfortable and dangerous as a dwelling place for himself and family.

The evidence also tended to show that said building, at the time of the execution of the lease, was, and up to the time the defendant made said entry continued to he, in an unsafe and dangerous condition, and that said entry and the acts done by the defendant and his employes, were for the purpose of maleing necessary repairs, so as to render the building reasonably safe for the persons and property of the occupants. It is claimed that these facts justified the entry, and that the court and jury wrongfully ignored the defense thereby established.

A plea of not guilty in trespass operates merely as a denial that the defendant committed the trespass complained of, but matters in justification must be specially pleaded. 1 Chitty on Plead. 534; Olsen v. Upsahl, 69 Ill. 273; Harris v. Miner, 28 Id. 135; Hahn v. Ritter, 12 Id. 80. It was therefore the duty of the court and jury to disallow the justification of the trespass, which the defendant now seeks to make out from the evidence, and they were at liberty to consider the evidence bearing upon that defense only so far as it might tend to mitigate the defendant’s damages.

The defendant asked several instructions to the jury which were refused. We think they were properly refused. Most of them were based upon the assumed defense of justification which was not pleaded, and none of them, in our opinion, stated with accuracy any rule of law applicable to the case as it was presented to the jury upon the pleadings and proofs. There being no error in the record, the judgment will be affirmed.

Judgment affirmed.


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    Chicago & Western Indiana R. R. Co. v. Frederika Schroeder, Adm’x, etc.
    1. Action nor injury resulting in death.—At common law no action can be maintained for an injury resulting in death, but the. right to maintain such action, where it exists, is purely a matter of statutory creation.
    2. Injury occurring in another State.—As the injury resulting in death complained of occurred in Indiana, and no proof was made of the law's of such State, it will be presumed the common law is in force there, and the case decided accordingly.

      Appeal from the Circuit Court of Cook county; the Hon. Lorie C. Collies, Judge, presiding.
    Opinion filed February 17, 1886.
    Mr. C. M. Osuore and Mr. S. A. Lyede, for appellant;
    that no right of action was shown by the evidence, cited I. C. R. R. Co. v. Cragin, 71 Ill. 180; Whitford v. Panama R. R. Co., 23 N. Y. 465 ; Beach v. Bay State St. Co., 30 Barb. 433; Hoover v. Penn. Co., 25 O. St. 667; State v. P. & C. R. R. Co., 45 Md. 41.
    Messrs. Braedt & Hoffmaee, for appellee.
   Bailey, P. J.

This was an action on the case brought by Frederika Sehroeder, administratrix of the estate of Charles Sehroeder, deceased, against the Chicago and Western Indiana Bailroad Company to recover damages for the death of the plaintiff’s intestate, caused, as is alleged, by the negligence of the servants and employes of the defendant. On the trial before the court and a jury,cthe plaintiff recovered a verdict and judgment for $5,000, and the defendant has appealed to this court.

The fact is clearly established by the evidence that the injury to the plaintiff’s intestate of which he died was received in the State of Indiana, and no law of that State authorizing the plaintiff to maintain an action to recover damages for his death was either pleaded or proved at the trial. We are of the opinion that, under these circumstances, the judgment can not be maintained.

At common law no action can be maintained for an injury resulting in death, but the right to maintain such action, where it exists, is purely a matter of statutory creation. Our own statute on that subject is local, and has no force or vigor in the State of Indiana; and unless there is some law in that State giving such right of action, the plaintiff can maintain her suit neither in that State nor this. Whitford v. Panama R. R. Co., 23 N. Y. 465; Hoover v. Pennsylvania Co., 25 Ohio St. 667; State v. Pitts, 45 Md. 41; Ill. Cent. R. R. Co. v. Cragin, 71 Ill. 180; Dennick v. Railroad Co., 103 U. S. 11.

In the absence of proof to the contrary, it will be presumed that the rules of the common law prevail in the State of Indiana, but there is no presumption that the legislature of that State has enacted statutes similar to those in force here. There being then no proof in this case as to the rules of law prevailing in Indiana, the courts of this State can afford the "plaintiff only such remedy as the common law gives her.

It is argued that the failure of the defendant to object to the evidence introduced should now be given the force of an admission that the statute of Indiana on this subject is identical with ours, and various decisions are cited where it is held that a failure to object to evidence on the ground of incompeteney, where such incompetency, if it had been pointed out, might have been removed, maybe held to operate as a waiver of the objection. We are unable to perceive any application to this case of the principle established by those decisions. The objection here is, not to the competency or admissibility of the evidence adduced, but the point made is, that the plaintiff has entirely failed to prove "a material part of her case.

Various other questions are focussed by counsel, but the failure of the plaintiff to make the proof above indicated so far disposes of the case on this appeal as to render it unnecessary for us to consider them.. The verdict not being sustained by the evidence, the judgment will be reversed and tlie cause remanded.

Judgment reversed.