author: Mr. Justice Puterraugh

text:
    State Bank of Clinton, Appellee, v. Fred J. Parkhurst, Appellant.
    1. Negotiable instruments—what essential to establish liability of endorser. In order to hold an endorser a promissory note must be presented to,the maker before maturity, demand made for payment, and if dishonored, notice thereof given to the endorser.
    2. Judgments—when affidavit presented upon motion for leave to plead to judgment entered by confession, sufficient. Even though the facts set out in such an affidavit are not averred with the same detail and certainty requisite in formal pleading, yet such an affidavit is sufficient if it sets out enough facts to establish á prima facie defense.
    Judgment by confession. Appeal from the Circuit Court of Dewitt county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.

      Edward J. Sweeney and Wight & Alexander, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Justice Puterraugh

delivered the opinion of the court.

This is an appeal from an order of the circuit court overruling a motion by appellant to open up a judgment obtained by the State Bank of Clinton against him on March 22,1909, for the sum of $394.80, and for leave to plead to the merits of the action.

It appears from the averments of the affidavit filed in support of the motion, which for the purposes of the motion must be taken as true, that on November 2, 1906, appellant borrowed from appellee the sum of $1,250 and gave his judgment note therefor; that at the time appellant, as collateral security for said indebtedness, assigned to appellee a note dated December 10, 1905, for $1,250 signed by J. B. Levy, W. L. Henning and-A. Hudson, payable to Fred -Ball, one year after date, at Garnet, Kansas, with six per cent interest, which said note Ball had by endorsement transferred to appellant; that when said principal note matured, appellant renewed the same, by another note payable to appellee on demand, for a like amount, the latter note being the one upon which the judgment by confession in question was taken; that when the collateral note matured, appellee failed to present it for payment to either of the makers, at Garnet, Kansas, or elsewhere, and took no steps to collect the same from either the makers or the endorser; that at the time the collateral note matured the makers of the note were and have since continued to be insolvent, and that during all of such time Ball, the endorser, was solvent. The affidavit further avers that by reason of the failure of appellee to present said collateral note for payment, or to take any steps for the collection thereof, Ball, the endorser, was released from liability, whereby appellee became liable to appellant for the amount of said collateral note and interest, and hence appellant had a good and valid defense as to the whole amount for which the judgment by confession in question was taken.

We think such contention is warranted, and that the trial court should have granted the motion. Under the act of 1895, relative to negotiable instruments, which adopts the law merchant as to rights and liabilities of parties to promissory notes payable in money, in order to hold an endorser the note must be presented to the maker at maturity, demand made for payment, and if dishonored, notice thereof given to the endorser. Kimmel v. Weil, 95 Ill. App. 15; Vaughan v. Potter, 131 Ill. App. 334. By reason of the failure of appellee to present the collateral note in suit to the makers for payment, and to notify the endorser of its dishonor, such endorser was released from liability thereon. It was the duty of appellee to collect the collateral note and apply the same upon the principal note and to return the balance, if any, to the appellant. It was also its duty to present the same for payment to the makers thereof at maturity, and if dishonored, to give notice to the endorser in the same manner as if it were absolutely the owner of the note. In the absence of any agreement or instructions governing the course of collection of the note, it was bound to take the necessary steps to perfect the liability of the endorser, and if by its neglect to do so the security was released, it must bear the loss. Griggs v. Day, 32 Am. St. 104, 136 N. Y. 152, note; Hawley v. Brownstone, 123 Cal. 643, 56 Pacific Reporter, 468; Coleman v. Lewis, 68 L. R. A. 482, note; Miller v. Gettysburg Bank, 8 Watts, 192; 34 Am. Dec. 449, note; 2 Rand. Com. Paper, sec. 795, 804; Joyce Def. Com. Paper, sec. 613; Scott v. Bank, 68 L. R. A. 488; Bank v. O’Connell, 84 Ia. 377 (51 N. W. 162); McQueen’s Appeal, 104 Pa. St. 595.

It is urged that the affidavit is defective in several respects, and that for that reason the court, in the exercise of reasonable discretion, was warranted in its rulings. While it may be that the facts set out in the affidavit are not averred with the same detail and certainty requisite in formal pleading, we think that it was sufficient in substance to establish prima facie, a good defense to the note. Blue v. Keenan, 130 Ill. App. 312.

The judgment will be reversed and the cause remanded with directions to open up the judgment and grant appellant leave to plead, the said judgment to stand as security until the final determination of the cause upon the merits.

Reversed and remanded.

Me. Justice Philbrick took no part.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    Thomas D. Chilcote, Appellee, v. George W. Hughes, Appellant.
    1. Variances—when objection comes too late. An objection of variance first made in the Appellate Court comes too late.
    2. Appeals and errors—when questions of law not preserved. If a cause is tried by the court without a jury and no propositions of law are presented it will be assumed that the trial judge decided correctly all questions of law arising except those involved in his rulings upon the evidence.
    Action in case for personal injuries. Appeal from the Circuit Court of Edgar county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1909.
    Affirmed upon remittitur.
    Opinion filed March 30, 1910.
    H. S. Tanner and Frank T. O’Hair, for appellant.

      Shepard & Trogdoh, T. J. Coeemah and Stewart W. KnsrcAiD, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action on the case by appellee, Chilcote, against appellant, Hughes, the village of Hume and one Wingfield, to recover damages for injuries alleged to have been received by appellee by reason of his falling through a coal-hole in the sidewalk adjacent to the premises of appellant in the village of Hume. The action was dismissed as to Wingfield before trial. A jury was waived and the case tried by the court, resulting in a judgment against appellant Hughes for $1,000 and in favor of his co-defendant the village of Hume.

The amended declaration consists of three counts. The first count charges in substance, that the defendant negligently caused a coal-hole to be improperly constructed in a certain sidewalk, so that the covering thereof was and remained in an unstable and dangerous condition for one to pass over. The second count charges that the defendant was the possessor and owner of certain premises in the village of Hume, which adjoined a public street; that there was an opening into the cellar or vault in front of the premises, in said street, the covering to which constituted a part of the sidewalk; that the owner of the premises negligently permitted such opening to be and remain insufficiently and defectively covered, whereby the sidewalk was in an unsafe condition, and that the village had notice thereof. The third count charges that the appellant was the possessor' and owner of the premises; that at and before the date of the accident a certain vault opening into a cellar under the sidewalk of said street, led to and connected with the said premises of the defendant Hughes; that said hole was covered by a lid imperfectly made, and was then and there unsafe and insecure. In each count plaintiff alleged that he was exercising due care and caution for his own safety, and his injuries were received on account of the negligence of the defendants as charged in such count.

The evidence shows that appellee was injured at about eight o’clock in the morning of October 9, 1908, as the result of falling through a coal-hole in-the sidewalk in the village of Hume adjoining certain premises occupied as a bank by the firm of George W. Hughes & Company, which consisted of appellant and five others; that the bank building extended along the line of the lot and had been occupied by the partnership since the year 1896; that when the concrete walk in question was constructed in the year 1900, a hole about 20 inches in diameter and lined with a grooved iron rim, in which was placed an iron lid, was constructed for the convenience of the occupants of said premises in placing coal in their cellar; that said lid was usually kept fastened down by a chain attached to its under side; that the lid did not fit the rim perfectly, in consequence of which when the chain was unfastened or loosened the lid could be easily turned or kicked aside; that in order to loosen the chain and raise the lid, it was necessary to go into the basement of the building, through the banking room above.

The evidence further discloses that on the day prior to the. injury to appellee a teamster in the employ of Wingfield, .who was originally a defendant to the suit, hauled a quantity of coal theretofore purchased by appellant, to the bank building, and was directed by one of the members of the firm to unload the same through the coal-hole into the vault; that.the teamster proceeded to haul and unload the same until about four o’clock in the afternoon, when he ceased work for the day; that at about eight o ’clock on the following morning, while appellee was walking along the sidewalk, he stepped upon the lid, which turned up, throwing him astride of it, causing the injuries for which he seeks to recover. We cannot say that the court was clearly unwarranted in finding that the teamster when he quit work, either failed to fasten or to secure tightly the lid and that such negligence was the proximate cause of the injuries to appellee. The finding of a trial judge to whom a cause is submitted for trial without a jury, is entitled to as much weight on controverted questions of fact, as the verdict of a jury, and will not be set aside by an appellate tribunal unless it is manifestly against the weight of the evidence. Podolski v. Stone, 186 Ill. 540.

We are of opinion that the evidence was sufficient to support the averments of the declaration, which stated in substance a good cause of action. The question of variance was not raised upon the trial, and cannot be urged for the first time in this court. No propositions of law were presented to the trial judge for his rulings, and we are therefore not required to determine whether or not he entertained correct views of the principles of law involved. It must therefore be assumed that all questions of law arising were correctly decided.

We are further of opinion, after a careful review of all the evidence, that the damages awarded are excessive. If appellee shall, within twenty days from the rendition of this judgment, remit the sum of $500 of the amount recovered by him in the trial court, the judgment will be affirmed; otherwise the same will be reversed and the cause remanded.

A firmed upon remittitur.


text:
    Lenora A. Stufflebeam, Appellee, v. William R. Jewell, Jr., Appellant.

      Instbuctions—when as to determination of value of attorney’s ■services misleading. An instruction upon, this subject which among other things tells the jury that they are authorized to consider their; “own personal experience and knowledge, if any, of the value of such .services,” held, misleading in this case as tending to lead the jury to believe that they were not in any way bound by the testimony of. the attorneys given in the cause upon the question as to the usual and customary fees for such' services as were rendered.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Schoebteed, Judge, presiding. Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    H. M. Steely, for appellant.
    Albert Payne and A. B. Dennis, for appellee.'
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Appellant, acting as attorney for appellee, collected for her the sum of $2,500. In accounting for the same he retained the sum of $500 which he claimed was due him for professional services in certain litigation in which he was employed by her to represent her interests. Appellee denied such employment, and brought the present suit in assumpsit against him for the amount which he retained. Upon trial by jury, judgment was rendered against appellant for $350.

It is apparent that the jury found from the evidence that appellant was employed by appellee, and that the reasonable value of the services rendered by him was $150. We think the evidence was sufficient to warrant the jury in the former finding, and no cross errors are assigned. It is urged by appellant as ground for reversal, that the finding of the jury upon the latter question is manifestly against the evidence, and this is the only question argued by counsel in this court. In the absence of any agreement between the parties as to the fee which appellant should receive for his services, he became entitled to receive what the same were reasonably worth. Several members of the bar called by appellant testified that the sum of $500 was the reasonable, usual and customary fee in cases of the character in question, where the matter was the subject of a prior contract. No evidence was introduced by appellee upon the question.

The first instruction given for plaintiff in substance told the jury that if appellee employed appellant to act as her attorney in certain litigation, and there was no agreement between them as to the fee to be charged by appellant for his services, then in determining what would be a reasonable fee for the same, they were not precluded by the testimony of attorneys as to the value of such services, but had a right and it was their duty to take into consideration all other evidence and circumstances in the case bearing upon the value of such services; that it was their duty to weigh all of the evidence bearing upon the question with reference to the nature of such services, the time occupied in their performance, and other attending circumstances, and that they might apply to it their “own personal experience and knowledge, if any, of the value of such services”. It so clearly appears from the evidence that the amount allowed for the services of appellant was inadequate, that we are impelled to the conclusion that the jury were misled by the foregoing instruction, to believe that they were not in any way bound by the testimony of the attorneys upon the question as to the usual and customary fees. The opinions of members of the bar as to the reasonable value of legal services, based upon the usual and customary charges therefor, for similar services, are clearly competent and should be considered by the court or jury, together with all the other facts and circumstances proven in the case, in determining the value of legal services and flying a reasonable fee therefor.

The court erred in giving the instruction in question, to the manifest prejudice of appellant, and the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Philbrick

text:
    William E. Gruber, Appellee, v. W B. Adams et al., Appellants.
    1. Instructions—must not give undue prominence to particular evidence. An instruction should not point out portions of the evidence or particular facts and circumstances and thereby give them undue prominence; by so doing an instruction is liable to mislead the jury.
    2. Instructions—when erroneous will not reverse. An erroneous instruction will not require a reversal if the court can see from the facts that the judgment is just and proper and that no other verdict can be returned or rendered upon another trial of the cause.
    Assumpsit. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed March 30, 1910.
    Frank P. Drennan, for appellants.
    Hogan & Wallace, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This action was brought by appellee against appellant upon the common counts to recover for wages under a contract alleged to have been made with appellee by appellants, employing him as an electrician at Taylorville, Illinois. The trial resulted in a verdict for appellee for $400, upon which he entered a remittitur of $156.81 and thereupon a judgment was rendered against appellants for $243.19. It is to reverse this judgment this appeal is prosecuted.

Appellee contends that he was employed by appellants as an electrician at a salary of $100 per month ;and that under such employment he performed services for the period of four months. Appellants do not deny the employment of appellee. They contend, however, that under the contract of employment, he was to commence work when notified by them, that he never was notified by them to commence work, but that he came to Taylorville on his own account without any request from them; that after so coming he was employed by appellant Adams, individually, and for the purpose of giving appellee employment until such a time as he should be directed to commence his employment with the Taylorville Utility Company. The evidence discloses that appellee commenced his work soon after reaching Taylorville and continued such work as an electrician during the time for which he brings this action. Appellant Adams was the secretary and treasurer of the Taylorville Utility Company.

There was no plea denying joint liability in this action, general issue being the only plea filed.

During the time of appellee’s performing the services sought to be recovered for, he was furnished and provided money, from time to time, by appellant Adams and upon the trial of this cause it was insisted by appellants that these payments were individual payments of appellant Adams, and that appellant Adams was the person for whom appellee was then working. It is undoubtedly by reason of this contention that the full amount of appellee’s claim, $400, was allowed him by the jury and by reason of these payments having been made to appellee, he entered a remittitur to the .amount of those payments.

It appears from the record that appellant Adams upon learning that appellee was about to institute suit against appellants for the four months ’ services, im- ' mediately brought suit against appellee before a justice of the peace for a balance claimed to be due him from appellee by reason of the moneys advanced toappellee, claiming that appellee had been working for him, Adams; that the work done and performed as an electrician having, amounted to a certain sum and that his advancements to appellee exceeded that amount. Appellee failed to appear before the justice of the-peace in this suit and appellant Adams recovered judgment against him for a balance of $36.73.

The services which appellant Adams claimed in that, suit appellee had performed was for labor performed in wiring various houses in Taylorville, preparing therii • for the use of electric lights and which work was finally to be utilizéd by the appellant, Taylorville Utility Company.

The evidence in this case discloses that after appellee went to Taylorville he was directed to go to work by appellants and that he performed the services of wiring various houses in Taylorville, preparing them for the use of electricity which was to be supplied by the Taylorville Utility Co., and that he was sent upon various errands of business to Chicago and other places-on behalf of appellants as an electrician.

That he performed services during the time for which he brings this action, there is no controversy, the-only contention being as to whether he was working under his employment with appellants, at the salary of $100 per month agreed upon between them, or whether he was working for appellant Adams as claimed by appellants, without any agreement as to amount for his services, pending the time when he should be put to-work upon his employment as electrician by the Taylor-ville Utility Co.

There is some criticism by the appellants to the rulings of the trial court upon the introduction of evidence, but we find no error in that regard in this record.

Whether or not appellee was working under the contract of employment with the Taylorville "Utility Company, which contract is admitted by appellants, or whether he was working for appellant Adams as an individual, was a question of fact to be determined by the jury from all the evidence in the case and if there is evidence warranting the finding of the jury, then that finding should not be disturbed unless this court can say it is clearly against the manifest weight of the evidence.

The evidence in the record fully warrants the finding of the jury upon this question of fact and unless there is some error in the record which requires a reversal, the judgment should be affirmed.

Appellants criticise the instructions given on behalf of appellee and especially the fourth. All the instructions given, with the exception of the fourth, substantially state the law correctly; there was no error in the giving of the other instructions. The fourth instruction violates the rule of singling out certain evidence, thereby giving it undue prominence. An instruction should not point out portions of the evidence or particular facts or circumstances and thereby give them undue prominence; by doing so it is liable to mislead the jury. While this instruction is erroneous, we are unable to see any manner or in what way the jury could have been misled thereby and unless the giving of an erroneous instruction is such that the appellant has been injured thereby, it will not require a reversal of the cause, and if the court can see from the facts that the judgment is just and proper and that no other verdict can be returned or judgment rendered upon another trial of the cause, then the case should not be reversed, and upon examination of this record, this court holds that the giving of such instruction, although erroneous, did not prejudice the rights of appellants and that the judgment in this case is the only one that could properly be rendered and upon retrial no other judgment could be properly rendered and it is, therefore, the duty of this court to affirm this judgment and it is, therefore, affirmed;

'Affirmed.


text:
    Conrad Krug, Administrator, Appellee, v. Chicago, Peoria & St. Louis Railway Company, Appellant.
    Passenger and carrier—when latter not liable when former riding upon platform. Held, that the carrier in this case was not liable for the death of the passenger who was riding upon the platform of the car, the preponderance of the evidence showing that there was room for such passenger in the coaches; further, that the declaration charging a violent motion causing such passenger to be thrown, a recovery could not be predicated upon evidence which merely showed that the death of such passenger was caused by his falling from the train while it was rounding a curve without violent motion.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    Wilson, Warren & Child, for appellant.
    T. J. Condon and Albert Salzenstein, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee to recover for the death of his son, killed by falling from one of appellant’s trains.

The declaration contains several counts but the trial court took all of them from the jury except the first additional count as amended, and the cause was submitted to the jury on that count alone; it alleges that deceased was a passenger on appellant’s train and while in the exercise of dne care and caution for his own safety, he was killed.'

The negligence charged against defendant is that it did not furnish deceased a seat inside the cars and thereby required him to find accommodation elsewhere; that the cars were over-crowded and deceased was obliged to take his position on the platform of the car on which he was riding. He was riding on the step of the platform. That while so riding the appellant so negligently managed and run its said train over and around a certain curve approaching the station at Ridgely, in Sangamon county, that the car on which deceased was riding was so violently swayed from side to side and jolted that deceased was thrown from the step of platform and killed.

The train from which deceased fell started from Springfield on this morning, and just before it reached the C. & A. Railroad tracks it stopped at a place known as the shops. On this train this morning appellant was hauling a party of excursionists from Springfield to Havana. They were in the rear coaches of the train, and there were six of these coaches. They were in charge of a special conductor and the rear door of the next coach ahead of these was kept locked to keep the other passengers separate. Ahead of them in the train were three cars; the second from the front' being a smoker and the third designated by witnesses as the ladies’ coach. When the train stopped for the shops the deceased with appellee boarded the train by getting on the rear coach; they found the rear door locked and were directed by the brakeman in charge to go to the front part of the train to get on; deceased with appellee went forward and boarded the train between the second and third coaches, the front car being the smoker. There were some persons on the platforms of these cars. Deceased did not attempt to go into the coaches to look for a seat but contented himself to remain on the steps of the platform.

While it is not negligence per se for a passenger to ride on the platform of a car, the declaration in this canse alleges that because of the want of a seat or room in the car and the negligent handling of the train rounding the curve, while obliged to remain on the platform, the deceased was killed. Before appellee can recover he must maintain these allegations of his declaration.

The preponderance of the evidence in this case is that the second and third coaches of the train were not crowded and that there were vacant seats in the third or ladies ’ coach. That there was plenty of room in the coaches and it was not necessary for deceased to have remained on the platform. It further shows that the train was moving at a very slow rate of speed and that there was no violent motion, swaying or jolting of cars; that only the usual motion of the cars in rounding a curve was noticeable, and there is no contradiction of this evidence.

The charges of the declaration being the violent motion, swaying and jolting of the train and there being no evidence of this, the defendant would not be liable for the death of deceased caused by his falling off from the train while rounding a curve where the train made no unusual, violent, swaying or jolting motions. For the usual, ordinary motion of cars in rounding a curve defendant would not be liable.

In Quinn, Admx., v. I. C. R. R. Co., 51 Ill. 499, the court in quoting from 32 Barber, 399, in the case of Willis v. Long Island R. R. Co., uses this language: “If a man places himself in such a position that in the ordinary motion and conduct of a train he is exposed •to danger, he may be justly said to be negligent of his security and himself, taking the consequences if he is injured.” Further, “If the plaintiff in this case had been thrown by a jerk or movement of the train, he would have encountered a danger incident to his position, and although the jerk might have been occasioned by high and unusual speed or other mismanagement, still at the most the fault would have been mutual.”

The evidence also shows that deceased had been subject to fainting spells or epileptic fits.

The evidence in this case does not sustain the allegations of negligence charged in the declaration in the handling or moving of the train and the verdict is so manifestly against the weight of the evidence that the judgment must be reversed and the cause remanded.

jReversed and remanded.


text:
    Louis Katz, Defendant in Error, v. W. A. Miller, Plaintiff in Error.
    Negotiable instruments—extent of liability of endorser. An assignor of a negotiable instrument is liable for the face of the note with interest and all damages that may be occasioned by the assignee in prosecuting the makers to insolvency; and the amount of the assignee’s recovery, as against the assignor, is the judgment, with accrued interest, and the cost of reducing that note to judgment.
    Assumpsit. Error to the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed March 30, 1910.
    R. M. Peadro, for plaintiff in error.
    Henley & Hughes, for defendant in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by Louis Katz, endorsee, against W. A. Miller as endorser of a promissory note.

The cause was tried by the court below without a jury upon a stipulation of facts made and entered into between parties by their counsel. Judgment was rendered against plaintiff in error for $246.45. To reverse that judgment this writ of error is prosecuted.

The note was one commonly known as a judgment note, and a judgment was first taken against all the makers by confession. .After judgment was. so taken, the judgment was opened and one of the alleged makers, Alex Sanders, permitted to set up the defense of forgery.

There is no dispute of the liability of plaintiff in error for the amount of the note together with interest due thereon. The only contention is concerning the amount of costs made in prosecuting the makers of the note for collection thereof, plaintiff in error contending that he is not liable for costs made in attempting to recover judgment against original makers and having execution returned nulla bona.

In the stipulation filed it is agreed that the costs made in the prosecution of that action were occasioned by 'reason of Alex Sanders, one of the parties whose name was alleged to be signed to the note, making a defense of forgery as to his signature, in which defense he was successful and a judgment was rendered against the defendant in error for the amount of the costs of that prosecution.

Plaintiff in error having assigned the note to defendant in error as a negotiable instrument, became liable to the defendant in error as an endorser thereon and by this assignment he thereby guaranteed the genuineness of this note and the signatures of the makers thereto. In order to render an endorser liable, it was necessary for the assignee, defendant in error, to collect the note, if possible, or to prosecute the makers to insolvency or assume the burden of showing all makers insolvent, and it was in endeavoring to do this that the costs were made for which he has become liable and for which he is endeavoring to recover in his action.

The fact that the note was a judgment note and a confession was originally taken upon the note against ■ all the makers whose names appeared thereto, and that the judgment was afterwards opened, and one of the alleged makers, Alex Sanders, succeeded in establishing a defense as to forgery of Ms name, did not render the status of defendant in error any different. Had Sanders, in the first instance, been sued upon the note and pleaded non assumpsit verified, it would still have been necessary for defendant in error to have prosecuted Mm to obtain judgment, if possible.

The defendant in error having had a judgment rendered against Mm in his attempt to recover as assignee against one of the alleged makers of the note, the plaintiff in error is liable for such judgment for costs. The law required the endorsee to prosecute that action in order to fix and determine the liability of the endorser.

It was the duty of defendant in error to collect the note from Sanders, one of the makers, if possible, and plaintiff in error, the endorser, having put defendant in error, the endorsee, in that position, he cannot complain of the endorsee performing his legal duty. That judgment for costs became an item of damages for which plaintiff in error as endorser is liable.

An assignor of a negotiable instrument is liable for the face of the note with interest and all damages that may be occasioned by the assignee in prosecuting the makers to insolvency; and the amount of Ms recovery is, as against the assignor, the judgment with accrued interest and the cost of reducing that note to judgment. Corgan v. Frew, 39 Ill. 31-39.

No question is raised concerning notice to the endorser.

There being no error in tMs record the judgment of the lower court is affirmed.

Affirmed.


text:
    Town of Pleasant View, Appellee, v. Edward Day, Appellant.
    1. Roads and bridges—what quantum, of proof required in action for obstruction of public highway. In an action to recover a penalty for the obstruction of an alleged public highway it is necessary that the plaintiff shall establish its right not by a mere preponderance but by a clear preponderance of the evidence, and unless it does so, it is not entitled to recover.
    2. Instructions—approved form, as to highway established by prescription. Held, that the following instructions were proper and that their refusal was reversible error.
    “The jury are instructed that the public cannot acquire a right by prescription, that is, by user for fifteen years, to travel over a tract of land generally. The travel and right of way must be confined to a specific, line or way that could properly be called a road. That travel may slightly deviate from the thread of a road to avoid an obstruction, and, still, not change the road itself.”
    “You are further instructed that if the various and distinct lines of travel have been used at different times across a piece of land, the time during which the different lines have been used cannot so be computed as to make up the requisite fifteen years to establish a prescriptive right of way to any single line of road.”
    Action commenced before justice of the peace. Appeal from the County Court of Macon county; the Hon. Orpheus W. Smith, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed.
    Opinion filed March 30, 1910.
    Albert Gr. Webber, for appellant.
    Whitley & Fitzgerald, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant for the obstruction of an alleged public highway in the town of Pleasant View, Macon county. The trial below resulted in a judgment against appellant for $33, to reverse which he prosecutes this appeal.

The highway alleged to have been obstructed is claimed by appellee by right of prescription, it being conceded that there was no dedication or condemnation of this highway. Therefore, the only question raised is, whether appellee had a right of prescription over the portion of the highway claimed to have been obstructed. Before appellee was entitled to recover, it was necessary for it to establish not only by a preponderance of the evidence but by a clear preponderance that a highway existed at the point where the obstruction is claimed to have been placed.

The obstruction was a fence, built by appellant upon what appellee claims was a portion of this public highway. The construction of the fence at this point is not in dispute, the question being, whether or not at that point a public highway existed.

The suit was originally brought before a justice of the peace for violation of section 71, chapter 121, of the Revised Statute.

The road in question lies between sections eleven and fourteen in the town of Pleasant View, Macon county, and that a public highway existed between the sections for a great many years is not disputed, the dispute arising upon the width of the highway.

In an action to recover a penalty of this character, it is necessary that appellee shall establish its right, not by a mere preponderance but by a clear preponderance of the evidence and unless it does so, it is not entitled to recover. Atchison, Topeka & Santa Fe R. R. Co. v. The People, 227 Ill. 270.

The rule of the sufficiency of proof to establish a right by prescription is laid down by the Supreme Court in the case of City of Chicago v. Galt, 224 Ill. 421, also in the case of O’Connell et al. v. Chicago Terminal Transfer R. R. Co., 184 Ill. 308. These cases hold that in order to establish a prescriptive right in the public, the use must have been adverse, under claim of right, continuous and uninterrupted with the knowledge of the owner and with his consent; that occasional travel over property adjoining the public highway for the purpose of avoiding ruts and bad places in the highway is not sufficient to establish aright by prescription. The preponderance of the evidence in this case discloses that the only times that this strip of ground, now in dispute, was traveled as a public highway were when the portion of the highway, which is not in dispute, was in such condition as to be impassable and at such times the public turned upon this strip of ground. Under the authority above cited this is not sufficient to establish a right by prescription and no such right existed upon this strip of ground.

Appellant assigns as error the refusal to give certain instructions asked by him. The first instruction-refused was as follows:

“The jury are instructed that the public cannot acquire a right by prescription, that is, by user for fifteen years, to travel over a tract of land generally. The travel and right of way must be confined to á specific line or way that could properly be called a road. That travel may slightly deviate from the thread of a road to avoid an obstruction, and, still, not change the road itself.”

The second instruction refused was as follows:

“You are further instructed that if the various and distinct lines of travel have been used at different times across a piece of land, the time during which the different lines have been used cannot so be computed as to make up the requisite fifteen years to establish a prescriptive right of way to any single line of road.”

These instructions properly stated the rule of law and should have been given by the trial court and it was error to refuse them.

Counsel for appellee insists that the evidence of appellee, when considered alone, is sufficient to sustain the proof of a highway by a prescription' at this place, and that the rule of law is, that where appellee’s evidence, when considered by itself, is sufficient to sustain the verdict, it will not be disturbed by a court of review. Such a rule of law does not obtain in this State. Donelson vs. Ry. Co., 235 Ill. 625. If such were the rule, then any verdict would have to be sustained regardless of whether it was against the weight, or preponderance of the evidence. We presume the rule that counsel undertakes to invoke is that, where the evidence is conflicting and the court of review is unable to determine upon which side the preponderance is, the evidence being hopelessly conflicting, then, it will not be disturbed by a court of réview.

From the evidence in this case, we hold that appellee’s evidence, even when considered alone, is not sufficient to sustain a verdict, and that the proof in this case does not show a public highway at the point where appellant’s fence was so constructed; the judgment must, therefore, be reversed.

The finding of this court being contrary to the verdict of the jury, the clerk will incorporate in his judgment a finding that the evidence does not show the existence of a public highway and does not show an obstruction of any public highway by appellant.

The judgment is reversed without remanding the cause.

Reversed.


text:
    The Capitol Food Company, Appellant, v. R. L. Smith et al., Appellees.
    1. Suretyship—when liability of guarantor and principal not joint. If the undertaking of the guarantor is to pay upon default of the principal, a joint liability is not created.
    2. Practice—section 86 of Act construed. A failure to file a plea denying joint liability does not prevent the interposition of such defense. The effect of the filing of such plea is to require proof of joint liability as a part of the plaintiff’s case.
    3. Contracts—when separate instruments not construed together. If two separate and distinct papers are executed, each signed by a. different party and each imposing a different obligation upon the parties executing them, the rule that where a contract is in several parts and all executed at the same time but one contract is made, has-no application.

      Assumpsit. Appeal from the Circuit Court of Montgomery county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed March 30, 1910.
    Lane & Cooper and Jett & Kinder, for appellant.
    John L. Dryer, Amos Miller and L. V. Hill, for •appellees.
   Mr. Justice Philbrick

delivered the opinion of the •court.

This is an action brought to recover the price of certain horse food and medicine, claimed to have been sold to appellee Smith under terms of a written contract, entered into by the appellant and Smith, appellee.

The contract of sale is set out in full in the declaration and is signed only by appellant, and Smith, appellee.

The liability claimed against appellee Milner is that of a guarantor of the performance of the contract entered into by Smith.

The contract of guaranty by appellee, Milner, is in substance as follows: “In consideration of the foregoing contract as evidenced thereby and the payment of one dollar to the undersigned, we jointly, severally guarantee the performance by.the said second party (Smith) of the contract under fulfillment by bim of all bis obligations and to pay to first party any and all damages sustained by them by reason of default of second party or refusal to keep his obligations, waiving notice of default of payment by (appellee) Smith.”

The contract signed by Milner was an obligation undertaken by him alone. It was an agreement to pay upon default of Smith. A default by Smith was necessary before any liability accrued against Milner.

Appellant brought suit against appellees, Smith and Milner. There is no joint obligation of these parties upon the contract entered into by Smith and the contract of guaranty entered into by Milner; and there could be no possibility of having a joint recovery upon these two contracts; their liabilities and obligations are separate and distinct. Clark et al. v. Morgan, 13 Ill. App. 598; Abbott v. Brown, 131 Ill. 108.

Appellant contends that because the appellees filed, no plea denying joint liability in this case, that, therefore, they are estopped from taking advantage of that defense and insists that section 36 of the Practice Act, in force at the time this action was brought, is conclusive upon this question. That section provided that “in actions upon contracts expressed or implied, against two or more defendants, * * * whether the-joint liability was alleged or not, proof of the joint liability of the defendants shall not in the first instance, be required to entitle the plaintiff to a judgment.” This statute has been construed by the courts-in numerous instances and the rule announced by Justice Scofield in the 53 Ill. App. in Martin v. Nelson, 518, is the true and correct rule, wherein it is said: “But it is insisted that under the practice act, proof of joint liability ‘shall not be required to entitle plaintiff to judgment, unless the defendants shall file a plea verified by affidavit, denying the joint liability. ’ Inasmuch as no such plea was filed in this case, it is contended that the joint liability was conclusively admitted. We do not so construe the statute, which is to the effect that without the filing of such a plea, proof of joint liability shall not be required in the first instance; but we hold that notwithstanding this provision of the statute, if it affirmatively appears from the plaintiff’s evidence, or is made to appear by the defendant’s evidence, that there is no joint liability, the defendant may defeat the action under the general issue upon that ground without filing a plea under oath denying the joint liability.”

This follows the doctrine announced by the Supreme-Court in Lockridge v. Nuckolls, 25 Ill. 159.

Appellant insists further that these two contracts should be construed as one and ask us to apply the rule where a written contract is in several parts and all executed at the same time, it is but one contract. That is the general rule applicable to papers executed at one time but where, as in this case, two separate and distinct papers are executed and each signed by different parties and each impose different obligations upon the parties executing them, the rule dan have no application and does not apply.

It is unnecessary to determine the other objections raised by the appellant in this case for the reason that there can be no recovery in this action, as no joint liability existed against these defendants.

The judgment is, therefore, affirmed.

Affirmed.


text:
    August Hoffman, Appellant, v. Peoria, Bloomington & Champaign Traction Company, Appellee.

      Instructions—when peremptory improperly given. To authorize the court to direct a verdict the evidence on the question of due care must be of such a character that the minds of all reasonable persons would inevitably arrive at the same conclusion.
    Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Coeostin D. Myers, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    Wight & Alexander, for appellant.
    Sigmund Livingston and William E. Bach, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellant against appellee to recover for an injury at the highway crossing of appellee’s railroad.

The declaration charges negligence in appellee in •approaching the public crossing at a high and dangerous rate of speed without sounding or giving any warning as required by statute. The declaration alleges due care on the part of appellant and has the usual averments and charges of negligence against appellee.

Upon the trial of this cause, at the close of the evidence of appellant, the court directed a verdict for appellee and rendered judgment on the verdict against appellant in bar of action and for costs. From that .judgment this appeal is prosecuted.

The error assigned is the action of the trial court in directing verdict and in rendering judgment on the verdict as directed.

The evidence of appellant in this cause shows that he was proceeding along the public highway toward the railroad crossing with a team and a wagon load of posts; that when he arrived at a point about fifty feet from the railroad crossing he stopped his team and while at this point, as disclosed by his own evidence, looked in both directions, east and west for a car. The railroad to the east was unobstructed for a distance of seven hundred feet or more. To the west there was a corn field which partially obstructed the view of the railroad, and appellant, as his testimony discloses, was expecting a car from the west, consequently kept his attention directed that way. After he had looked in both directions and saw no car he proceeded upon his way across the railroad without further directing his attention to the east. The road was rough and uneven, and as he came upon the railroad crossing his team was hit by an express car coming from the east which resulted in the damages claimed in this action. Appellee’s motion to direct the verdict was on the theory the appellant’s evidence failed to show due care on his part.

In order to determine this question it is necessary to weigh the evidence of appellee upon this point. The motion of appellee being in effect a demurrer to the evidence admits that the same is true, and in order to-determine the question of due care, it was necessary to weigh the evidence and determine from the acts of appellant, as shown by the record, whether his actions showed due care. It is well settled that the trial court is not authorized to weigh evidence to determine this question and if there is evidence tending to show due-care upon the part of the appellant, and the evidence that while appellant was stopped at a point fifty feét from the railroad crossing he looked in both directions for the car, presented the question as to whether his actions thereafter in proceeding across the right of way without further directing his attention to the east for a car from that direction was a want of due care, and the question should have been submitted to the-jury, and it was error in the court to direct the verdict for appellee. To authorize the court to direct a verdict, the evidence, on the question of due care, must, be of such character that the minds of all reasonable persons would inevitably arrive at the same conclusion. C. & N. W. Ry. Co. v. Hansen, 166 Ill. 629; C. &. E. I. Ry. Co. v. O’Connor, 119 Ill. 586; Garrity v. C. O. F., 243 Ill 411.

This court expresses no opinion as to the weight or sufficiency of this evidence further than to determine that there is sufficient evidence in the record to have-required the submission of this cause to a jury and for the error of the trial court in directing the verdict for appellee and rendering a judgment upon the verdict as directed, the judgment below will be reversed and the cause remanded.

Reversed and remanded.


text:
    H. M. Barnett, Appellee, v. J. L. Noble, Appellant.
    1. Tbial—what erroneous as calculated to create sympathy. It is error for the court, over objection, to permit the.plaintiff suing for personal injuries, to be attended in court, during the trial, by his wife and four small children.
    2. Evidence—when letters incompetent. Letters written in connection with a proposition of compromise which contain self-serving statements are incompetent for the party making them.
    3. Accobd and satisfaction—what does not vitiate. A compromise settlement or accord and satisfaction does not cease to be effective as such merely because a party making the same does not understand the effect thereof provided there is no issue of fraud.
    Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Mtebs, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    Welty, Sterling & Whitmore, for appellant.
    A. E. DeMange, Frank Gillespie and E. C. DeMange, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellee was employed by appellant as a farm hand. On the morning of the injury complained of they went to a gravel pit upon the farm of appellant for the purpose of gathering up some old boards and lumber. Appellee was upon the wagon driving, appellant collecting the old boards and posts, putting them upon the wagon; while doing this a board was picked up,, which had a large spike at one end which bent out over the end of the board; this was thrown upon the wagon by appellant with sufficient force that the spike penetrated the calf of appellee’s leg.

Appellee with appellant went to the house of appellant where appellant undertook to dress the wound by injecting therein turpentine and crude oil by use of a syringe.

The injury became so painful that appellee was compelled to go to a physician who treated the wound. The wound became infected and resulted in a very serious injury to appellee. To recover for this injury this action is brought and in the court below judgment was rendered against appellant for $2,000.

The declaration charged negligence in appellant in throwing the board upon the wagon in the manner in which it was thrown, and with such force as to cause the spike to penetrate the leg of appellee and with negligence in undertaking to treat this injury by injecting turpentine and crude oil therein, in the manner in which it was done, and that by reason of the injury and the treatment given it by appellant, the limb of appellee became infected, caused numerous sores upon the limb and permanent injury to the ankle joint.

The grounds urged by appellant for the reversal of this judgment are that he was not guilty of negligence; that a settlement was entered into and agreed upon between appellant and appellee and that the settlement was a complete extinguishment of the right of action for the injury; also that the wife and four small children of appellee were permitted to sit by appellee throughout the trial of this cause thereby creating sympathy for appellee with the jury. Further, that the court improperly admitted in evidence on the trial, letters and papers written to appellant by appellee’s attorneys, relative to a settlement of the cause.

Upon the first question as to whether or not there was any negligence upon the part of appellant in throwing the board upon the wagon in the manner in which the evidence discloses it was thrown, and whether there was negligence on the part of appellant in attempting to treat the wound by injecting therein turpentine and crude oil, and the result of such treatment, were questions of fact for the determination of the jury and these questions were properly submitted to the jury as questions of fact by the trial court.

The question as to whether a settlement had been effected between appellant and appellee prior to the time of the commencement of the suit by appellee was also a question of fact for the determination of the jury from all the evidence in the case and this question was properly submitted to the jury.

Upon the question of the refusal of the trial court to exclude from the court room the wife and four children who were permitted to remain with appellee throughout the trial, motion was made by appellant to exclude them, .this motion was overruled by the court, and they were permitted to remain, and thereby appellee .was permitted to present to the jury in this method the fact that he had a wife and four children dependent upon him, the evidence disclosing that he was a laboring man earning a dollar and a half to two dollars per day. Had his wife and children been absent from the court room during the trial, under the authority of Jones & Adams Co. v. George, 227 Ill. 70, it would have been error for the trial court to have admitted evidence that he had a wife and four small children; and the effect of permitting the wife and children to remain with appellee during the trial was only a means of getting this evidence to the jury. The only manner.it could be objected to by appellant was by a motion to exclude them from the court room, and in refusing to grant this motion, the trial court was in error. The law does not permit a person to do indirectly what he cannot do directly.

The letters and papers which it is complained of as having been admitted by the court were letters written by attorneys for appellee in their office and directed to appellant, requesting him to make some proposition in regard to the disposition and settlement of the rights of the parties; and referring to a proposition alleged to have been made by appellant concerning a settlement; these letters and papers having been written by appellee’s counsel were self-serving and the fact that appellee served notice upon appellant to produce the original at the trial and a failure to do so, could not in any manner make the originals competent evidence; and had the originals been presented, it would have been error to have admitted them; consequently the copies retained by appellee were not competent evidence and were improperly admitted. Their effect could not have been otherwise than prejudicial to appellant.

The first instruction complained of by appellant as given on behalf of appellee is as follows:

“If you believe from the evidence that plaintiff, after his injury, was paid by the defendant for a time the same amount of money that he had been receiving from the defendant before his injury, as wages for his labor, and that the defendant offered to pay him that amount until he should be able to work, and that the plaintiff in accepting the same did not agree or understand it to be in settlement of any claim he might have against the defendant for damages on account of his injury, and did not agree thereby to release such claim, if any he had, then the acceptance of the money from the defendant did not operate to release whatever claim, if any, the law gave the plaintiff against the defendant for damages on account of his injury. ’ *

The evidentiary facts relating to the alleged settlement having been submitted to the jury, the jury should not have been instructed that if the plaintiff in accepting any payments thereunder did not agree or understand it to be a settlement of any claim he might have against the defendant and did not release .such claim, then that the acceptance of the money did not operate to release the claim. It was error to give this instruction to the jury. If, in fact, a settlement had been perfected and acted upon, appellee could not have been permitted to say that he did not understand it as such, unless it was effected through fraud, and there was no such contention made in the trial of this cause.

The next instructions seriously complained of in the argument by appellant are the fifth and sixth instructions given on behalf of appellee. We do not find that these instructions are subject to the criticism made against them and there was no serious error in the trial court giving them to the jury.

There was no error in refusing to give appellant’s second refused instruction. It is not a correct statement of the law.

We find no serious error in the other instructions given and refused by the trial court.

For the above errors committed by the trial court its judgment must be reversed and the cause remanded. .

jReversed and remanded.


text:
    H. H. Staggers, Appellant, v. Estate of Hester J. Staggers, Appellee.
    Administbation of estates—right of party to file several distinct ■claims. Where a claimant has several claims arising at different times and growing out of different transactions, the law does not require him to include all the accounts that he may have against an estate in one action, but he may, under such condition, file separate and distinct claims for each transaction which is separate and distinct from those in other claims.
    Contested claim in court of probate. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    H. M. Steely, for appellant.
    J. H. Lewman and E. B. Holmes, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellant was a nephew of Hester J. Staggers, deceased. During her lifetime he acted as her agent in the transaction of her business and the management of her property. For this purpose she executed to him a power of attorney. After he had been acting under this power of attorney for some time he claims that his relation as attorney in fact in the transaction of her business was changed by reason of a contract of agreement alleged to have been entered into, in and by which he claims she gave him certain amounts of money in consideration of which he was to take care of her during her lifetime and pay certain of her outstanding indebtedness.

Upon the death of her husband, Hester J. Staggers, became involved in considerable litigation over her interest in her husband’s estate. This was finally determined by a partition suit and upon the payment to her of the proceeds of her husband’s estate, checks were made by the master in chancery payable to her order and endorsed by her to appellant and deposited by him in the First National Bank of Danville to his own credit, and this is the time when he claims the relation before that time existing, was changed.

On her death he was appointed executor of her last will and testament and qualified as such; appellant filed a claim in the county court against the estate of Hester J. Staggers for certain sums of money claimed to have been paid out for her use and for services in attending to her business. In this claim was originally included certain amounts which were paid out of the fund which he had received and deposited in the First National Bank. Before the hearing on this claim, he amended his claim by striking from it the items claimed to have been paid from this fund or paid for her use after the alleged relations which had existed between deceased and appellant were changed by the agreement alleged to have been made. Upon the claim as thus amended, a hearing was had in the county court and for the purpose of defending the estate against this alleged claim, Lawrence Allen was appointed administrator fro tern; upon the hearing of this claim appellant was allowed by the county court a judgment for $2,982.89. From this judgment the administrator pro tern appealed to the circuit court.

After appellant had amended his claim in the county court by striking out these items, he then filed in the county court another or additional claim, setting forth the items which had been stricken from his first claim and included therein others which he claimed were proper charges against the estate, if he failed to maintain the alleged contract and gift .of the proceeds of the checks, Upon the filing of this claim, upon his motion, it was stricken from the claim docket by the county court with leave to reinstate. This was done because the items, which composed this additional claim, were inconsistent with his contention of a gift or contract, and it was done to postpone a hearing upon this additional claim until the question of gift and contract were finally determined.

Upon the trial the administrator pro tem claimed as a set-off against appellant’s claim the proceeds of the checks received by appellant from Hester J. Staggers. The total of the sums so received by him was $7,123.86, and this amount being in excess of appellant’s claim, the administrator asked for judgment against appellant for whatever amount should be found to be due the estate, if any.

Neither on the trial in the county court nor upon the hearing of the appeal in the circuit court was any evidence offered concerning any of the items which were stricken from appellant’s claim as originally filed. The hearing was upon the claim as amended and upon this hearing the jury returned a verdict against appellant and in favor of appellee for $6,132.12. Appellee remitted from that amount $2,000 and the court rendered a judgment for $4,132.12 against appellant.

Pending the appeal in the circuit court, no action was taken upon the items of the additional claim filed in the county court and which had been stricken from the docket with leave to reinstate.

After the judgment rendered in the circuit court upon that appeal, appellant then caused to be reinstated in the county court his additional claim and upon a hearing on that claim in the county court, a judgment was rendered in his favor for $914.59. From that judgment an appeal was prosecuted by the pro tern representative of the estate of Hester J. Staggers. Upon this appeal a jury was waived and hearing had before the court; the trial court made no finding on the merits of the various items in this claim but held the claims to be res adjudicata of the former claim and rendered judgment against appellant.

Appellant submitted to the court the following proposition of law:

“The court holds it to be the law that where one person pays the debts or obligations of another, by request of such other person, the law raises an implied promise by said person to repay the one so paying such debts or obligations. And that in this case if it is shown by a preponderance of the evidence that «claimant paid any debts or outstanding obligations of Hester J. Staggers, at her request, and that he has not been repaid, then he is entitled to recover any such ■sum or sums so paid, laid out, and expended at her request.”

The court added to this proposition of law the following :

“But the court holds that under the evidence in this case the claimant is barred from a recovery because said claims are res adjudicata.”

Appellant assigns as errors the action of the court in adding to this proposition of law and then holding it as the law as modified.

Appellant also submitted to the court the following propositions of law:

“The court holds it to be the law that in a proceeding in a court of record the plaintiff or claimant is not required to join all his claims or demands in one claim or suit; but that he may present such claims separ•ately in county court against the estate or sue them separately, as he sees fit.
“The court holds it to be the law that although the plaintiff, H. H. Staggers, may have presented a claim in the county court previous to the claim in question, which included some of the items included in the original and amended claim in this case, yet if previous to judgment on such original claim and before, or at the time of trial thereon, such item or items were withdrawn and dismissed by the plaintiff, that such representation and adjudication in such former case would not bar or prevent plaintiff presenting a claim for the items so withdrawn, and litigating the same in this case, or recovering thereon, if said items are proven and established by a preponderance of the evidence.”

Both of which the court refused to hold as the law, and marked them refused.

By the modification of the first proposition submitted by appellant the trial court held that the doctrine res adjudicata applied to this claim for the reason that •appellant had filed a claim in the county court against the estate of deceased upon which hearing had been had and that the law required appellant upon that hearing to litigate all claims that he might have against the estate of Hester J. Staggers, and having failed to do so he is now barred from prosecuting any further claim.

In so holding the trial court was in error. The doctrine of res adjudicata to a claim filed against an estate can only be applied where the items in said claim grow out of or relate to the same circumstances -and transactions concerning items which are included and litigated upon the former hearing, but where a claimant has several claims arising at different times and growing out of different transactions, the law -does not require him to include all the accounts that he may have against an estate in one action but he may, under such condition, file separate and distinct claims for each transaction which is separate and distinct from those in other claims; and in this case the claims which were withdrawn by appellant from the claim upon which the hearing was had, were wholly inconsistent with the claim made by him of a gift, and upon the hearing in which the items of the other claim were litigated and he had the right to have the hearing upon the items withdrawn postponed until such time as the question of the gift might be finally adjudicated, and appellant is not barred by the judgment rendered upon the hearing of the claim of which these items did not. compose a part. Millard v. Harris, Executor, 119 Ill. 185; City of Chicago et al. v. Cameron et al., 120 Ill. 447; Equitable Trust Co. v. Fisher, 106 Ill. 189.

The court did not err in refusing to hold propositions two and three submitted by appellant. The propositions of law submitted did not distinguish between the acts which arose from different and distinct transactions or circumstances and those which may have arisen or grown out of or related to one single transaction.

Upon the question of the right of appellant to recover upon any items set forth in his claim, this court expresses no opinion whatever. The only question presented to this court for its determination is whether the trial court was in error in holding that this claim was res adjudicata, and upon that we hold the trial court was in error and for the reason of the trial court in so holding the judgment of that court is reversed and the cause remanded.

Reversed and remanded.


text:
    Grace Wolfe, Appellant, v. Beacon Life Insurance Company, Appellee.
    Appeals and bbrobs—what not final order. An order of the court overruling a demurrer is not a final judgment and no appeal can he taken therefrom.
    Assumpsit. Appeal from the Circuit Court of Cass county; the Hon. Guy W. Williams, Judge, presiding. Heard in this court at the May term, 1909.
    Dismissed.
    Opinion filed March 30, 1910.

      Milton McClure, for appellant.
    Bellatti, Barnes & Bellatti, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellant to recover upon the policy of insurance issued upon the life of appellant’s husband.

The policy was for the principal sum of $1,000 and payments were to be made in monthly installments in the sum of $21 each month. The suit is brought for the unpaid monthly installments at the time of the commencement of the action. The insured died June 30, 1907; suit instituted September 3, 1908.

Appellee filed in all six pleas, the fourth and sixth setting forth the existence of a by-law of the defendant which is as follows:

“Legal proceedings for recovery of death benefits shall not be brought until after three months from the date of filing final proofs at the home office of the company, and not brought at all unless within one year from the death of the insured * * * .”

Appellant demurred to each of these pleas by special and general demurrer. The demurrer to these pleas was overruled by the trial court. Appellant elected to abide by her demurrer; thereupon appellee withdrew all pleas except the fourth and sixth to which the demurrer had been overruled.

The order of the court in overruling the demurrer was as follows: “It is ordered and adjudged by the court that judgment be entered herein in favor of the defendant and that judgment be entered against the plaintiff for costs.”

Upon this order in overruling the demurrer no final judgment, whatever, was ever rendered so far as is disclosed by the record in this case. An order of the court overruling a demurrer is not a final judgment and no appeal can be taken therefrom.

The appeal in this case is premature and it is, therefore, dismissed with leave to either party to apply to the trial court' for final judgment.

Appeal dismissed.


text:
    John W. Reynolds, Appellee, v. George Alward, Appellant.

      Verdicts—when not disturbed. A verdict will not be set aside on ■review as against the weight of the evidence unless clearly and manifestly so.
    Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed upon remittitur.
    Opinion filed March 30, 1910.
    S. S. Clapper and Chapee & Chew, for appellants.
    William H. Bagar and George B. Bhoads, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellant engaged appellee, who was a contractor in tile ditching, to lay tile upon his farm. The contract provided for the laying of new tile and the taking up and relaying of some old tile already in. There is no dispute as to what the contract was between appellant and appellee for laying the new tile. This was contracted to be done by appellee for ten cents per foot depth, per rod, for four, six and eight inch tile, but for the tile which was to be taken up and relaid, there is a dispute as to what was to be paid, appellee contending that he was to have the same price as for the laying of the new tile and in addition thereto, tern ■cents per rod; appellant contending that appellee was to have but five cents per rod additional.

The contract for laying the tile on what is known as the Alward forty was never completed, owing to conditions of the weather and controversies which arose between appellant and appellee; work was delayed from time to time and finally stopped without completing the contract; the reason for stopping is disputed, appellant contending that appellee quit of his own accord and appellee contending that appellant refused to allow him to finish the work.

After the work of tiling the Alward forty was begun, appellant employed appellee to lay other tile upon an eighty, known as the Gregory eighty, which belonged to Mrs. Alward. There is no dispute about this contract, it was completed and the work paid for by appellant and has nothing to do with this controversy; consequently we will give it no further consideration.

Later another contract for other tiling was entered into between appellant and appellee which related to the draining of a pond upon appellant’s farm and also for the draining of the cellar of appellant’s residence. The work of putting in this tile was never begun by appellee and no work ever performed under this contract by appellee. Appellee contends that appellant refused to allow him to perform this work and that he was damaged by reason thereof. Conceding that appellant refused to allow him to proceed with it, appellee offered no evidence of any damage to him by reason thereof; consequently that contract has no bearing on the question here involved.

Upon the trial of the cause below the jury returned a verdict in favor of appellee for $183, to reverse which judgment this appeal is prosecuted.

The pleas filed by appellant in this case are, plea of payment, and a plea of a failure to perform the contract on the part of appellee in accordance with the contract, with a resultant damage to appellant by reason of appellee’s failing to perform his work, such as was performed, in a good workmanlike manner in accordance with the contract, and for failure and refusal to finish the contract.

The issues presented by these pleas are questions of fact upon which the evidence is conflicting and which questions it was the province of the jury to determine.

The questions of fact involved relate to the performance of a simple contract and the questions of law raised are confined to the instructions given and refused by the trial court.

Upon the questions of fact concerning the terms of the contract and the cause of its failure to be performed, whether appellee quit of his own accord, or whether appellant refused to allow him to proceed, and whether the work done was done in the usual ordinary workmanlike manner in accordance with the contract, were questions of fact for the jury to be determined from the evidence. On all of these questions the jury found against the contention of appellant and we are not prepared to say from this record with the •evidence conflicting as it is, that the verdict is not warranted by the evidence or that it is contrary to the evidence in the case, consequently it will not be disturbed by this court.

Complaint is made by appellant of nearly all the instructions given on behalf of appellee by the trial court and if the instructions were taken separately and not considered as a series, the criticism in some instances is just and applicable, but instructions must be regarded as a whole and considered as a series and the portions that it is contended by appellant are omitted in one instruction are included in others. While some of them are crude statements of law applicable to this case, and have been prepared probably without much thought or consideration, we find no errors in them which would justify this court in reversing this cause.

The evidence of appellant’s engineer, Alexander, who measured the work done and who computed the amount it came to upon appellant’s theory of five cents per rod additional for tile taken up and relaid, fixes the amount at $91. The evidence is conflicting on the amount of tile laid, appellee’s figures showing that according to his measurements and at ten cents per rod extra for tile taken up and relaid, the amount is $135.07.. The jury in addition evidently allowed damages on the theory .of breach of the contract by appellant and by reason thereof arrived at their verdict $183. -

Upon the question of the amount of the verdict, appellee’s own figures showing the amount of work done ■and performed by him upon the forty acres belonging to appellant and for which the original contract was made amount to only $135.07, and there is no evidence in the record that he was damaged by reason of not having been permitted to fulfill the entire contract; therefore, the verdict for $183 is in excess of the amount of damages shown by the record.

The judgment should not have been for more than :$135.07 and if appellee will enter a remittitur in this court for the excess, $47.93, within thirty days, the judgment will be affirmed for $135.07, otherwise the .judgment will be reversed and the cause remanded.

Affirmed upon remittitur.


text:
    D. M. Scott, Appellee, v. American Express Company, Appellant.
    Appeals and ebbobs—effect of failure by appellee to file brief. Under the rules of the Third District a reversal pro forma will be ordered if the appellee fails to file a brief.
    Action commenced before justice of the peace. Appeal from the "Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    W. W. Hartsell, for appellant.
    No appearance for appellee.
   Mr. Justice Philbrick

delivered the opinion of the ■court.

This is an appeal brought by appellant from a judgment rendered against it for $40 in the circuit court of Shelby county.

Appellee has filed no brief in this court and under the rule the cause is reversed and remanded pro forma.

Reversed and remanded.


text:
    Robert C. Halsey, Appellant, v. James Jordan et al., Appellees.

      Bankruptcy—what claim not affected i>y discharge. A discharge-in bankruptcy does not release a bankrupt from a claim or judgment arising by reason of his, as a public warehouseman, fraudulently removing property from his warehouse contrary to the provisions of the State statute which makes it a felony so to do.

      Scire facias. Appeal from the County Court of De Witt county; the Hon. Feed C. Hill, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.
    Lemon & Lemon, for appellant.
    George F. Jordan, E. E. Donnelly, Fred Ball and E. B. Mitchell, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the-court.

The appellant, Halsey, recovered a judgment in an action of trover and case, against the appellees, James Jordan and Thomas Jordan, in the county court of DeWitt county, on July 10, 1901, for $874.50, and on May 15, 1908, sued out of said court a scire facias to revive said judgment. To the writ of scire facias, the-defendants filed four pleas as follows:

Nul tiel record, on which issue was joined. Second plea setting forth that the action on which the judgment was rendered was in trover, and that the defend- ■ ants did not waive a jury in writing, and that an execution issued upon said judgment was quashed on September 1,1901. Third plea averring that the judgment was null and void, without setting forth any fact or facts upon which the conclusion was based. Fourth plea averring that after the rendition of the judgment on, to wit, November 7, 1901, the defendants and each of them were adjudged bankrupts by the District Court of the United States for the Southern District of Illinois, and that afterwards, on the.30th day of January, 1902, the defendants, and each of them, as partners, and individually, were discharged from all debts and claims provable against the bankrupt estate, and which existed on the 7th day of November, 1901, except such debts as are by law excepted from the operation of a discharge in bankruptcy, and averring that the said judgment is a debt and claim, which by the Act of Congress was provable against their estate, and not excepted by said Act, and averring that the judgment was scheduled by the defendants, and that the plaintiff had notice of the proceedings in bankruptcy and their application for a discharge.

Appellant demurred to the first, second and third pleas. The court sustained the demurrer to the second and third pleas and appellees amended their first plea. On this plea issue was joined.

Appellant’s replication to the defendants’ fourth plea says that the judgment upon which said scire facias was issued was rendered by this court on, to wit, the tenth day of July, 1901, and which was prior to the date on which the petition for adjudication in bankruptcy was filed by the said defendants, or either of them. And the plaintiff further avers that the cause of action upon which said judgment was rendered, was rendered for the fraudulent misappropriation by the defendants, as operators of a certain public warehouse of class “B” under the Statute of this State, of grain of the plaintiff received by them for storage in said warehouse, and for their defalcation thereby, while acting as such warehousemen. And this the plaintiff is ready to verify, wherefore he prays judgment, etc.

Appellant by leave of the court filed his additional replication to the fourth plea and says that he ought not to be barred from, having his aforesaid action because the judgment mentioned in said writ of scire facias was recovered by the plaintiff against said defendants in said court in a certain action wherein the plaintiff declared in trover and case against the defendants upon cause of action substantially as follows: That the said defendants while acting in a fiduciary capacity, to wit, the keepers of a warehouse of class “B” as defined by the Statute of this State, received in store as such warehousemen a large quantity of corn, the property of the plaintiff, giving to the plaintiff a warehouse receipt therefor, and fraudulently mixed and intermingled the grain of the plaintiff with other grain of the defendants in said warehouse, and afterwards in violation of their duty as such warehousemen under the Statute aforesaid, and for the purpose of wronging and defrauding the plaintiff, and fraudulently converting it to their own use and embezzling the same and misappropriating the same to their own use, and for their own gain and profit, and not for the purpose of preserving it from fire or other sudden danger, and without the return and cancellation of said outstanding receipt, removed said property from store in said warehouse, together with all other grain of like character and value, and for like purpose, and thereby, while sustaining such fiduciary relations to the plaintiff as to said property, the said defendants fraudulently as aforesaid embezzled and deprived the plaintiff of his said property, or its equivalent, contrary to the form of the statute in such case made and provided. And this the plaintiff is ready to verify, wherefore he prays judgment, etc.

The appellees demurred to said replications, and the court sustained the demurrer. Appellant elected to stand by his said replications; the court found the issue made by the plea of nul tiel record for the appellant, but the appellees’ fourth plea remaining unanswered, and the facts therein averred, therefore, standing confessed of record, rendered judgment against appellant upon said fourth plea, that the defendants go hence without day, and that said judgment be not revived, and rendered judgment against the appellant for costs.

From this judgment an appeal was duly perfected, and the appellant assigns as error the sustaining of the demurrer to each of said replications to the fourth plea, and the rendition of the judgment aforesaid.

Section 17 of the Federal Bankruptcy Act provides that “A discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as * * * (4) were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer, or in any fiduciary capacity.” I Federal Statutes Annotated, 578.

The Statute of this State defines public warehouses and classifies them into classes “A,” “B” and “0,” enjoining public duties upon the keepers thereof, and makes it a felony for any warehouseman to fraudulently remove any property from store except to preserve it from fire, or other sudden danger, without the return and cancellation of the warehouse receipt. 3 Starr & Curtis Statutes, pp. 3316-3329.

Public warehouses established under the law are public agencies, and the warehousemen pursue a public employment, and are clothed with a duty toward the public. Central Elevator Co. v. The People, 174 Ill. 203.

“The rule of law applicable to the position and relation occupied by public warehousemen, and of their duties, are the same that apply to trustees, and others who occupy fiduciary relations. The law has established limitations upon the power of those occupying such confidential relations to act in relation to the property and the interest of those who are the rightful beneficiaries of the trust.” Hannah v. The People, 198 Ill. 88.

A discharge in bankruptcy is no defense to an action of debt on a judgment for fraud prior to the bankruptcy proceedings, and it is wholly immaterial whether or not the claim was proven or provable in bankruptcy, or whether or not a part was paid on it in the bankruptcy proceeding. It is the cause of action which determines the question whether the discharge in bankruptcy is operative,- and not the form of action adopted. Forsyth v. Vehmeyer, 176 Ill. 359; Nelson v. Petterson, 131 Ill. App. 443.

The demurrer of appellees admits the averments set forth in the replication to be true and they show that the debt was within the exception of the bankrupt act and the replication was not subject to demurrer and it was error in the trial court to sustain the demurrer.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Eliza Smith, Appellee, v. Illinois Collieries Company, Appellant.
    1. Mines and miners—status of company man so-called. A company man is entitled to be informed of any dangerous places found in a mine by the mine examiner and the question whether or not the mine examiner failed to mark any dangerous places which he may have found in the roof of such mine, held, properly submitted to the jury, although the plaintiff’s intestate was working under the direction of the mine manager and was employed for the purpose of making dangerous places safe.
    2. Evidence—effect of leading questions. Held, in this case that it was error to permit a witness to be examined by means of leading questions.
    3. Instructions—as to question of negligence erroneous. Instructions upon the question of negligence are erroneous if the negligence upon which a recovery may be awarded is not confined to that charged in the declaration.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed March 30, 1910.

      Jett & Kinder and George P. O’Brien, for appellant.
    Lane & Cooper and Zeno J. Rives, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant to recover for the death of her husband, by reason of alleged wilful violation of the provision of the Miners Act by the appellant company, which resulted in the death of her husband.

The trial below resulted in judgment against appellant for $3,500, from which it prosecutes this appeal.

The declaration in this case consists of four counts, being three original counts and one additional. The negligence charged is a wilful violation of the statute by failure to employ a competent mine examiner and for a wilful violation by failure to cause the mine to be inspected and a wilful violation in failing to cause the walls of the room in which appellee’s husband was killed to have been marked with the date of the examination by the mine examiner and with a conspicuous mark on dangerous places found by him and the wilful failure to prevent appellee’s husband from entering this room of the mine for work without having it made safe before allowing him to enter therein.

The court submitted to the jury the following special interrogatories.

“First. Did the defendant wilfully fail to employ a competent mine examiner at the mine in question on or before the day of the death of the deceased?”

This question the jury answered “No.”

‘ ‘ Second. Did the mine examiner wilfully fail to examine the mine on the morning of April 30, 1907?” This question was answered “No.”
“Third. Did the mine examiner of the defendant discover dangerous places in the roof of the room in question on the morning of April 30,1907, and wilfully fail to place a conspicuous mark at the dangerous place?”

This was answered “Yes.”

“Fourth. Did the mine examiner of the defendant wilfully fail to make a record of the condition of the mine in question as he found the same on the morning of April 30, 1907, in the book kept for that purpose?”

This was answered “Yes.”

The answer “No” to the first and second interrogatories eliminated from this cause the charges of negligence that the defendant wilfully failed to employ a competent mine examiner and that the mine examiner failed to examine the mine.

The jury by their special findings to propositions number three and four found that the mine examiner did not mark on the wall of the room or entry the date of his examination, neither did he mark dangerous places he found upon the roof of the mine, and that he-failed to make a record of such examination and the-result thereof in the book kept for that purpose at the-mine, and it is upon these questions that the general verdict was permitted to stand by the trial court.

Appellant contends that the deceased by his employment as a company man for the purpose of making dangerous places safe for miners and others who might be required to enter the mine, assumed as a risk of his-employment the danger of the roof falling, as is complained of in this case, and that the proximate cause of the injury was not caused by reason of a failure of the mine examiner either to mark the dangerous places in the roof by conspicuous marks or by reason of a. failure to make a record thereof in the book at the-mouth of the mine; that the nature of the deceased’s, employment precludes the contention that it was the imperative duty of appellant to make all places in the-mine safe before permitting any person to enter therein, and that this is the rule of law, so far as the requirement of appellant to render the mine safe before persons employed to make dangerous places safe were-permitted to enter, and that deceased assumed all ordinary risks incident to this employment has been determined by the Supreme Court in the case of Kelleyville Coal Co. v. Bruzas, 223 Ill. 596, but notwithstanding appellant was not required to make all places safe, it was the duty of the mine examiner to mark with a conspicuous mark all dangerous places found in the mine by him. In Kelleyville Coal Co. v. Bruzas, supra, the Supreme Court said:

“If the mine examiner failed to use reasonable diligence to discover the dangerous places in the entry in question or had not placed a danger signal there or if the mine manager or his assistant had recklessly ordered deceased into places of danger without proper warning, the defendant could have been properly held liable.”

The record does not disclose that the mine manager pointed out or indicated to the deceased or the gang with which he was working specifically any dangerous or unsafe places in the roof of this room, or that the result of the examination of the mine examiner was in any way communicated to deceased or the gang he was working with.

The deceased although a company man was entitled to be informed of any dangerous places found by the mine examiner, and if the mine examiner had made conspicuous marks he would have had this information concerning such places, and the question whether or not the mine examiner failed to mark any dangerous places which he may have discovered in the roof of this room was properly submitted to the jury, although deceased was working under direction of the mine manager and was employed for the purpose of making dangerous places safe, he was, nevertheless, entitled to receive and be informed of all dangerous places found by the mine examiner; and it was the duty of the mine-examiner to mark these places conspicuously with a chalk mark for the benefit of deceased as well as for other persons who might be required to enter the mine.

The trial court did not err in refusing to direct a verdict for appellant.

The appellant assigns as error the leading examination of the witness, Davis, in regard to Ms testimony as to whether or not he would have seen a mark put upon the rock if it had been placed there by the mine examiner; this examination of Davis was erroneous and should not have been permitted.

Instructions number one, two and four are subject to criticism but not such as to require a reversal of the judgment.

Instructions number three, six, seven, eight and ten are specifically complained of because they do not confine a recovery to the question of the negligence alleged in the declaration. The plaintiff must be confined to the charges of negligence in the declaration and a recovery cannot be had upon any other negligence although it may be disclosed by the evidence. It was error to give each of these instructions without confining the question of negligence to the negligence alleged in the declaration.

It being necessary to reverse this case upon other questions involved we refrain from discussing the evidence.

For the errors above pointed out, the judgment of the trial court must be reversed and the cause remanded.

Reversed and remanded.