text:
    Irvin S. Cox et al., Appellees, v. Emil J. Eckstrom, Appellant.
    Gen. No. 4,994.
    1. Contracts—what violation of obligation to foeep boolcs of account. Held, under the evidence of this case, that the provision of a royalty mining contract requiring the lessees to keep correct books of account, was not fulfilled.
    2. Contracts-—effect of absence of specification in notice of cancelation. It is not material that a notice to cancel fails to specify the particular ground for cancelation, if such ground exists and there has been no waiver thereof.
    3. Forcible entry and detainee—when entry without process lawful. Under a contract permitting re-entry upon land in the event of default without process of law, a re-entry, pursuant to such a default, is proper and restoration of the premises entered upon cannot be obtained by action of forcible entry and detainer, no force being used in making the re-entry.
    4. Notice—effect of giving, upon right of re-entry. The giving of a ten-days’ notice to quit does not affect the right immediately to re-enter, pursuant to a contract provision authorizing re-entry without notice.
    Forcible entry and detainer. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed.
    Opinion filed August 10, 1908.
    Statement by the Court. On March 15, 1906, Hiram Wells, E. W. Wells and Eugene E. Stillfield entered into a written contract of partnership under the firm name of Wells & Company. On April 18,1906, Emil J. Eckstrom, as party of the first part, and said Wells & Company, as party of the second part, entered into a written contract whereby the party of the first part purported to lease, to the party of the second part, certain land in the northeast quarter and in the southeast quarter of a certain section in Henry county for mining purposes only, from that date to April 19, 1913, and the second party agreed to pay the first party at the mine on said premises, as rent for the same, ten and one-half cents per ton for all coal taken out of said mine, “run of mine,” during the term of said lease, payments of royalty to be made on the first and fifteenth of each month. The second party agreed to mine sufficient coal each year to pay the first party at least $250 in royalty each year. The lease contained a contract, by the second party, to yield possession at the expiration of the term of the lease. It also contained the following provisions:
    “It is further expressly agreed between the parties hereto, that if default shall be made in the payment of the royalty above reserved, or any part thereof, or any of the covenants or agreements herein contained to be kept by the party of the second part, it shall be lawful for the party of the first part or his legal representatives, into and upon said premises or any part thereof, either with or without process of law, to re-enter and re-possess the same at the election of the party of the first part. * * * In order to enforce a forfeiture for non-payment of rent it shall not be necessary to make a demand on the same day the royalty shall become due, but a failure to pay the same at the place aforesaid, or a demand and a refusal to pay on the same day, or at any time on any subsequent day, shall be sufficient; and after such default shall be made, the party of the second part and all persons in possession under them shall be deemed guilty of a forcible detainer of said premises under the statute. * * *
    If the parties of the second part fail, within a year from this date, to put in switch on south side of present mine, this lease is null and void, as far as the same effects the southeast quarter (%), Sec. 21-17-1 East. * * * And it is further covenanted and agreed between the parties aforesaid, that the party of the second part shall keep correct books of account of all coal mined, and that the party of the first part shall have access thereto at any time he may desire. ’ ’
    It was provided that the contracts contained in the lease should extend to and bind the heirs, executors, administrators and assigns of the parties. The lessees entered and operated the mine. The term “run of mine” meant the coal just as it was taken out of the mine. Afterwards appellees were selling screened coal and left more slack in the mine than appellant thought they ought to, and by oral agreement the royalty was changed to twelve and one-half cents per ton of screened coal. '
    On July 25,1906, Hiram Wells conveyed his interest in the firm of Wells & Company to Emil J. Eckstrom, the lessor, and on August 4, 1906, Eckstrom gave to John Allen a like bill of sale of said interest, which bill of sale also bound Allen to assume all obligations of said company for which Eckstrom was liable. On January 25, 1907, E. W. Wells gave to Irvin S. Cox a bill of sale of his interest in said mine. On June 6, 1907, Eckstrom served a written notice upon Hiram Wells, E. W. Wells, Stillfield, Allen and Cox, that in consequence of their default and failure to mine sufficient coal to pay $250 royalty during the first year, and for failure to keep books of account, as provided by said lease, he had elected to terminate said lease, and that they were notified to deliver possession of the premises within ten days of that date. Eckstrom was a farmer and lived upon and farmed the surface of his land. The mine ran directly into the side of a hill, and the passageway to the mouth of the mine was between plaintiff’s house and barn. There was a gate at this passageway. When Cox arrived at the mine the next day after service of this notice, he found the gate securely fastened, and was forbidden by Eckstrom to enter. Shortly thereafter an action of forcible detainer was begun before a justice of the peace in the name of “1. S. Cox, John Allen, and E. C. Stillfield, partners under the name of Cox So Allen” ag’ainst Eckstrom. Before the justice Allen sought to have the suit dismissed as to him, but his co-plaintiifs gave him an indemnifying bond and his application was ignored. Eckstrom had a judgment before the justice. On a trial of an appeal in the Circuit Court, at the close of ah the evidence, the court refused an instruction requested by appellant directing a verdict for Mm, and gave an instruction requested by appellees directing a verdict for them, which was entered, and a motion for a new trial by Eckstrom was denied and appellees had a judgment for the restitution of the premises to them. Prom that judgment Eckstrom prosecutes tMs appeal.
    G. W. Wood and Fred H. Hand, for appellant.
    Searle & Marshall, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

We pass by-the questions whether the present appellees are partners as they describe themselves in the complaint filed before the justice; whether, if not partners, they can still maintain tMs suit; and whether the instrument called a lease in the foregoing statement is indeed a lease within the meaning of our statutes, or is merely a sale of coal. The main questions in the case are, first, have the terms of this lease been forfeited, and if so, second, could appellant lawfully re-enter as he did, or must he surrender possession to appellees because he entered unlawfully.

The proof is clear that the royalties paid appellant by appellees, for the coal taken out during the first year of the lease, amounted to very much less than $250. One of the appellees testified that he was ready to pay the balance at any time when appellant would notify him how much they owed him on the first year’s royalties. It was not appellant who was required to keep correct books of account, but appellees, and it was their duty to know what they had paid and how much remained unpaid. But we construe this lease to mean more than that appellant was to receive at least $250 each year. Appellees agreed to mine sufficient coal each year so as to pay Eckstrom at least that sum in royalty each year. The mining of the coal constituted a development of the mine and would inure to his future benefit, and when they had failed to take out enough coal to make the royalties amount to $250 during the first year, they had broken the lease by failing to take out the quantity of coal and to develop the mine to the extent to which they had agreed. The contract required appellees to keep correct books of account of all coal mined, and gave appellant access thereto whenever he desired. It is evident this provision was intended for appellant’s benefit, so that he. might readily know whether they were mining the amount required by their lease, and also whether they were correctly putting ■ down all the coal they mined. They kept books in which were scattered through many pages accounts with miners who worked for them from time to time. These accounts were kept in several different books, including one which appellees had lost. There was no place in these books where an account was kept of the amount of coal taken out. That could only be ascertained by a search through many different accounts. Sometimes these accounts were undated. In some instances the entries were made long after the coal was mined. This method of keeping the books furnished an opportunity for failure to put down coal that had been taken out and to account to appellant therefor. The proof tends to show that many of these entries were difficult to be understood. We are satisfied that appellees did not keep such account of the coal mined as was required of them by the terms of the lease. Appellant made many complaints to them about the books. For several weeks before this notice of the termination of the lease was served by appellant he was confined to the house by a broken leg, and early during that confinement he told one of the appellees that as soon as he was able to get out he should terminate the lease. Appellees then hired an expert bookkeeper and he attempted to make up an account of the coal mined, from such data as he could get hold of. This bookkeeper had no personal knowledge of what had been done, and we are of opinion that the books he prepared did not cure the previous violation of the contract in that regard. Appellees did not put in the switch referred to in a part of the lease quoted in the foregoing statement. The lease, therefore, by its own terms, became null and void as to the southeast quarter of the section, and the judgment restoring said quarter section to appellees was unwarranted. We find nothing in the evidence to show that that provision had been waived by appellant. It is true that in the notice he served he did not specify the failure to build that switch as one of the grounds for terminating the lease. That however was unnecessary. As to the other defaults, it was at the election of appellant whether he would re-enter for the default of appellees. The provision as to the southeast quarter was self-executing, and did not require any election on his part. We therefore conclude that as to the southeast quarter the lease had ceased to have any validity at the close of the first year, and that for the' other defaults above stated appellant had acquired a right to terminate the lease, and that he exercised that right by his notice of June 6, 1907.

The contract, as quoted in the foregoing statement, made it lawful for appellant, upon such default by appellees to re-enter and re-possess the premises either with or without process of law. Section 1 of the forcible entry and detainer act, as first adopted in 1872, reads as follows: “That no person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he shall not enter with force, but in a peaceable manner.” It is contended by appellees that by virtue of said section of the statute it was unlawful for appellant to lock the gate and shut them out of the mine after he had given them notice of said default, and that they were therefore entitled to be restored to the possession, notwithstanding their defaults. It is contended by appellant that it was lawful for him to re-possess himself of the mine for the default of appellees, because the contract permitted him, to do so. This raises the important question of law in the case.

In Ambrose v. Root, 11 Ill. 497, decided in 1850, when quite a similar section 1 of the forcible entry and detainer act of the Bevised Statutes of 1845 was in force, and where there was a similar contract permitting the landlord to enter and take possession upon the default of the tenant, it was held that this was not an agreement to do an unlawful act, and that this agreement was made for the purpose of accomplishing a lawful object in a lawful manner, that is, to enable the owner by the consent of the tenant to take possession of his own premises, and that the landlord was not liable to the tenant in trespass for talcing such possession, unless he used greater force than was necessary.

In Page v. De Puy, 40 Ill. 506, where the lease contained a similar contract, it was held that the owner of the lease could not be guilty of a trespass in going upon the premises and in removing the tenant and her property, using only such force as was necessary. It was held that the entry was justified because the tenant had authorized it to be made, and that the law does not. prevent ^ person from giving such authority, and that a recovery could only be had for excesses, if excessive force was used.

Fabri v. Bryan, 80 Ill. 182, is very much in point. The lease there authorized the landlord to enter into possession with or without process of law under circumstances which had occurred. It was held that while the statute relating to forcible entry and detainer took away the right to make entry by force, yet when the lease contained such a provision, the contract was lawful and did not contravene the forcible entry and detainer act, and that the tenant could not recover against the landlord in trespass for such an entry. The court there commented upon Reeder v. Purdy, 41 Ill. 279, relied upon by appellees here, and pointed out the broad distinction that it did not appear in that case that the person charged with the trespass had been authorized by the occupant of the premises to make such a forcible entry. The court said: “In the one class of cases, the occupant had expressly agreed that the landlord might make such an entry, thereby waiving the trespass, unless the license should be abused by the use of excessive force, whilst in the other no such authority had been given.” This decision was rendered in 1875, after the present section 1 of the forcible entry and detainer act, relied upon by appellees, had become the law. The foregoing rule has been followed by the Appellate Courts in Mueller v. Kuhn, 46 Ill. App. 496; Schaefer v. Silverstein, 46 Ill. App. 608; Wetzel v. Meranger, 85 Ill. App. 457; Turn Verein Garfield v. Vocke, 131 Ill. App. 528, and other cases. The cases relied upon by appellees, namely, Baker v. Hays, 28 Ill. 387, Shoudy v. School Directors, 32 Ill. 290, Reeder v. Purdy, supra, Smith v. Hoag, 45 Ill. 250, Phelps v. Randolph, 147 Ill. 335, and Hammond, v. Doty, 184 Ill. 246, did not any of them involve a contract by the party in possession that the owner might enter with or without process of law, upon the default of the party in possession, and they therefore are not applicable to this case, as clearly shown in the comments already mentioned, made in Fabri v. Bryan, supra. But it is said that the cases above relied upon by us were actions of trespass, and that the rule there laid down should not apply to this action of forcible detainer. We fail to'see any distinction. If this entry would be held lawful if appellees had sued appellant in trespass, it cannot be that it is unlawful because appellees have chosen to bring forcible detainer. We therefore hold that by virtue of the contract between these parties, the defaults of the appellees gave appellant lawful authority to take possession of this mine in a peaceable manner.

The foregoing statement shows that appellant received a bill of sale of the interest of Hiram Wells as lessee, which was in fact a quarter interest, and held the same from July 25 to August 4, ten days, when he conveyed that interest to Allen. It is argued that the several defaults hereinabove specified occurred during that year, and that appellant was therefore partly responsible for these defaults and can take no advantage thereof. The proof shows that no coal was being mined just at that time, so that there was no default in failing to keep proper books of account during those days. The lessees had the entire year in which to put in the switch in question and to take out the amount of coal required to produce $250 royalty, and it cannot be said that when less than four months of the term had passed there was then a default in these respects.

Ifcwill be observed that appellant did not take possession by force in the usual sense of that term. He did not forcibly put appellees or any of the men out of the mine. He merely closed a gate upon the surface of his farm through which they must necessarily go to' enter the mine, and did this at a time when there was no one in the mine, and when apparently no work had been done in the mine for several days, and kept the gate closed. He did not put appellees out in the ordinary sense of those words, but refused to permit them to enter. In one Illinois case a distinction is drawn between actual force and implied force, and this seems to have been implied force. One of the appellees testified that on coming to this gate some days later a man in the employ of appellant came out of appellant’s house with a gun and cocked the gain and pointed it at him. Appellees then called that man as a witness and he admitted having’ the gun, but testified that he held it behind him and did not cock it nor point it at the appellee who had so testified. Appellees therefore had no preponderance of their own proof that this act was committed, and there was no proof that appellant had authorized it.

It is argued that as appellant gave appellees notice to quit within ten days he was not at liberty to take possession within that time. We think this position untenable. The contract permitted him to take possession with or without process of law. The notice was obviously given as the foundation of an action at law to recover possession. Afterwards he decided to proceed under the contract without process of law. He had the right to resort to both remedies at the same time. Fabri v. Bryan, supra. After appellant had taken possession, he accepted $3.40 from appellees in payment of back royalty at the agreed rate. Appellees owed him this on coal actually taken out, and did not cease to be liable therefor because appellant had taken lawful possession.

We are of opinion that the instruction requested by appellant at the close of the evidence directing a verdict for him should have been given. The judgment is therefore reversed.

Reversed.

Finding of facts to be incorporated in the judgment: We find from the evidence that appellees did not mine sufficient coal during the first year of their term, under the lease in evidence, so as to pay appellant $250 royalty for that year; that they did not keep correct books of account of all coal mined; and that under the contract between the parties appellant had lawful right to terminate the lease and to re-enter and re-possess himself of the same without process of law, and that he elected to so do, and that his said act of re-entering and re-possessing himself of said premises and holding the same was the detainer for which this suit was brought; and also that appellees did not, within one year from the date of the lease or afterwards, put in the switch on the south side of the mine, as required by the lease, and that by reason of said omission, said lease became null and void by its own terms, as to the southeast quarter of said section; and that under the proofs appellees are not entitled to be restored to the possession of said premises.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Peter Olson et al., Appellees, v. August Nilson et al., Appellants.
    Gen. No. 4,999.
    1. Verdict—when disturbed as excessive. A verdict which is excessive according to the clear preponderance of the evidence will be set aside on review.
    2. Mechanic's liens—when attorney’s fees should not be awarded. Held, under the facts of this case, that attorney’s fees should not be allowed pursuant to the Mechanic’s Lien Act.
    Bill in equity. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    B. A. Knight and Johnson & Johnson, for appellants.
    Fisher & North, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellees filed a bill in equity for a mechanic’s lien upon certain real estate in Rockford for work done and materials furnished in the erection of a building thereon under a written contract and, written supplements thereto, which provided that appellants should do certain excavating, build certain foundations, do certain pointing, furnish labor, stone and mortar, and erect certain brick walls. The original bill alleged that appellees had furnished 143,000 brick for the walls, and that $500 remained unpaid. The answer by appellants admitted that 136,000 brick had been furnished. Afterwards appellees filed a so-called amendment to their bill. The amendment specified eight places in the bill where certain words should be stricken out and certain other words inserted in place of them. The references were to certain lines on certain pages of the original bill. These references will not at all fit the pages and lines of the bill as copied into the record. We have no definite means of knowing where these amendments were intended to be made. We must find other lines on other pages and assume that those were the lines and pages intended to be changed. In many cases it would be impossible for the court on appeal to determine with any certainty from such an amendment what was intended to be changed, and hence it would often be difficult to tell whether the allegata and probata agreed. We disapprove of this method of amending the pleadings. Appellants, however, amended their answer in the same way, and we have therefore endeavored to find where the amendments should be inserted. We conclude that it was the intention of the amendments to charge that appellees furnished 203,861 brick and that there remained due them upon the entire contract $1,225.45. There was a hearing and a decree. The decree found that appellees furnished 192,000 brick and that there was a balance of $1,043 due appellees, for which sum appellees were given a lien upon the premises, as also for $150 as a reasonable attorney’s fee. Defendants below appeal.

The contract required appellees to furnish the brick at $11.50 per thousand “kiln count.” The evidence shows that this means actual count at the kiln where the brick are burned, and casts upon the buyer the loss by breakage and other waste. Appellees had the brick shipped to them in carload lots from Grant Park, Illinois, and had it in their power to ship carload lots for this job, and to prove such shipments, and thereby to prove exactly how many brick went into this building by kiln count. One of the appellees testified that he had the bills showing the brick bought at Grant Park. Appellants then requested appellees to produce these bills. They refused to produce- the hills at the hearing, on the ground that they were immaterial. Appellants did not ask any order of court upon appellees requiring’ them to produce the bills nor obtain any ruling that the bills were immaterial, and therefore no error appears in the record in that behalf. The bills, however, should have been produced. The excuse now made is that some brick obtained at Grant Park were used in other buildings, and that some brick from- another source were put into this building. We do not think that these excuses should have deprived appellants of access to all available sources of original information as to the number of brick, kiln count, put into this building. The difference between the 143,000 brick originally claimed by appellee, and the 192,000 brick afterwards awarded by the court, is very great. No adequate explanation of this difference is contained in the record, so far as we have observed. The failure of appellees to produce proof of the actual amount of brick obtained by them at the kiln for this building compelled appellants to resort to actual count of the brick on the exterior of the walls, and to estimate therefrom the number of brick in the entire building. Prom an examination of the evidence we are of opinion that the preponderance of the proof is that there were in said walls somewhere about 136,000 brick, to which should be added the waste, which appears to be usually estimated by experienced men at 5%. In other words, the original bill stated with substantial accuracy the number of brick in the building, according to the preponderance of the proof now before us. We conclude that the allowance of 192,000 brick in the decree is excessive under the proof before us. Appellees were not entitled to attorney’s fees. Manowsky v. Stephan, 233 Ill. 409.

There are a few other minor matters in dispute which are discussed by counsel, but as the proof upon them may be different at the next hearing, we think it unnecessary to consider them. For the reasons above stated, the decree is reversed and the cause remanded.

Reversed and remanded.


text:
    John Domm, Plaintiff in Error, v. George Hollenbeck, Defendant in Error.
    Gen. No. 5,003.
    1. Animáis—what essential to fasten liability for injuries received from,. In order to recover for injuries received from an alleged vicious animal, it must appear that the defendant knew that such animal had attacked or had bitten mankind, or else it must appear that the defendant had knowledge of the propensities of such animal in that respect.
    2. Evidence—what statements during negotiations to compromise competent. Independent admissions made during an effort to compromise may be given in evidence against the party making them; at least, unless they are expressly stated to be made in confidence or without prejudice.
    3. Evidence—competency of attorneys to testify for clients. While an attorney ought to withdraw from a case before he becomes a witness for his client, yet if he does not do so his testimony is nevertheless competent and the fact that he is attorney of record for the party who calls him only affects his credibility.
    Trespass on the case. Error to the Circuit Court of La Salle county; the Hon. Edgab Eldkedge, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Lee O’Neil Browne, for plaintiff in error.
    James J. Conway, for defendant in error.
   Mr. Justice Dibell

delivered the opinion of the court.

While John Domm was playing billiards in a saloon in Seneca, LaSalle county, he was bitten by a dog. He brought this suit against George Hollenbeck, charging in his declaration that the defendant was the owner and keeper of the dog, and, in the first count, that defendant well Imew that the ■ dog was accustomed to attack and bite mankind; in the second count, that the dog was of a ferocious disposition, and liable by reason thereof to attack and bite mankind, and that defendant well knew this, or by the use of ordinary care ought to have known the disposition of the dog, and his liability to attack and bite mankind; and in the third count, that defendant well knew that the dog was of a ferocious disposition and liable to attack and bite mankind. The other allegations were the customary averments in such a declaration. Defendant pleaded not guilty. Upon a jury trial, at the close of plaintiff’s evidence, the court directed a verdict for defendant. Such a verdict was returned, a motion by plaintiff for a new trial was denied, and defendant had judgment, to review which the plaintiff prosecutes this writ of error.

The biting and the injury, and that defendant had said that this was his dog, and that the dog had but recently been brought to Seneca by defendant, were sufficiently proven. There was some proof that the appearance of the dog indicated a ferocious disposition, though it is doubtful if the face of a dog is necessarily an index to his disposition. There was no proof that he had ever attacked or bitten mankind, or that defendant had any knowledge of any such propensities on Ms part, except the proof sought to be established by the testimony of L. 0. Browne and H. G. Wiley, attorneys for plaintiff. The material question is whether the court properly excluded the evidence of Browne upon this subject, and properly refused to admit the offered testimony of Wiley.

The attorney for defendant, in opening the case to the jury, very improperly stated that plaintiff’s attorneys had offered to settle the case for a certain small sum. The court properly sustained an objection to that statement. Browne, one of plaintiff’s attorneys, not satisfied with the ruling of the court in plaintiff’s favor on that subject, or fearing that the effect of the statement would not be overcome by the ruling, took the stand after plaintiff’s other proof was in, to testify to the facts concerning the alleged offer to settle and to show that the sum for which he offered to settle was very much in excess of that named by defendant’s attorney. In the course of that testimony, Browne began to narrate what defendant had stated to him concerning the manner in which he had disposed of the dog before this injury. To this defendant’s counsel objected on the ground that Browne was an attorney in the case, and not a competent witness. This objection was sustained, and plaintiff excepted. Wiley then withdrew his appearance for plaintiff, and was sworn as a witness, and, objection being made to his testimony, the jury was withdrawn, and Browne then offered to prove for plaintiff by Wiley that in the conversation between themselves and defendant, to which reference had already been made, defendant said that he ought not to be held to be to blame in this matter for the reason that when he brought the dog to Seneca he put birri in the hands of a friend to be tied up and kept in a butcher shop, and expected that it would be done, and that the dog would not be permitted to run at large, and that his object in doing tMs was so that the dog would not hurt anybody. The court sustained an objection to this offer of proof. The court also excluded the testimony given by Browne. Plaintiff excepted to each of these adverse rulings. These rulings appear to rest upon two propositions: First, as to Browne, that as he was an attorney in the case, he was not a competent witness for his client; and second, as to both Browne and Wiley, that this testimony was incompetent because the proof showed that defendant had gone to the office of Browne and Wiley for the purpose of seeing if a settlement could be effected, and this was said during.the conversation concerning a settlement.

In 1 Grreenleaf on Evidence, section 192, the rule is announced that though offers and propositions of, settlement cannot be given in evidence, for the reason that a man must be permitted to offer to buy his peace without prejudice, yet independent admissions made during an effort to compromise may be given in evidence against the party making them; at least, unless they are expressly stated to be made in confidence or without prejudice. Authorities to that effect are cited in a note to that section. To the like effect are Miene v. People, 37 Ill. App. 589; Thom v. Hess, 51 Ill. App. 274; Alminowicz v. People, 117 Ill. App. 415; Kuhn v. Williams, 124 Ill. App. 390. In Harrington v. Inhabitants of Lincoln, 70 Mass. 563, the plaintiff sought a settlement with the defendants, and the defendant told him they were willing to pay him for his loss of time and for his actual expenditures in consequence of the accident, and asked him what those items would actually amount to, and in answer to that question he gave the details, not as offers upon which he was willing to settle, but as his actual loss and expense. The trial court rejected proof of the offer to compromise, but admitted the statements of plaintiff as to his actual loss and expense. This was approved on appeal. The court said: “The presiding judge ruled that no offer of settlement made By plaintiff in a conversation had with the agents of defendants, with a view to the adjustment of the controversy, was competent; But that statements of independent facts, made in the course of such conversation, might be admitted. The distinction is sound. The facts stated were capable of being proved by any competent evidence, including the admission of plaintiff. The amount of a doctor’s bill, the cost of board during the sickness, the loss of time by absence from the service of his employer, were simple facts capable of exact certainty—facts the statement of which would not be modified by the occasion on which it was made, certainly not to the prejudice of the party making it.” This does not conflict with what we held in Gehm v. People, 87 Ill. App. 158, for we pointed out in that case that the proof there held to be improperly admitted was merely of an offer to compromise and not of any independent fact. The objection that the foregoing statements by defendant as to what he did with the dog, and the reason why, were made in the same conversation in which there was an effort to compromise, was therefore not valid.

In Wilkinson v. People, 226 Ill. 135, the act of an attorney in testifying for his client was held to be unprofessional, and to be likely to impair the value of his testimony, and to deserve severe censure, but that such course might not have worked a reversal if the record had been otherwise free from error. In this case other decisions in this state were quoted from and the rule in England and in other states of the Union was given, all hostile to such testimony. In Bishop v. Hilliard, 227 Ill. 382, it was held that when an attorney discovered that it was necessary for him to give material testimony in behalf of his client, he should have ceased to appear as an attorney, but that his failure to do so could only go to the weight of his testimony. In Onstott v. Edel, 232 Ill. 201, a solicitor for the defendant withdrew from the case the day before he testified for the defendant. It was held that this course would not subject him to proper criticism if the necessity for his testifying had resulted from some unforeseen emergency of the trial, and that when he examined the bill of complaint he must have seen that his testimony would be material, and he should have immediately conferred with his associate and his client, and should then have determined whether he would be a witness or not, and if he was to testify he should at once have entirely severed his connection with the litigation, and if it was decided that he should not testify his clients should have abided by that decision, unless some later emergency made it important for their interests that he should testify. It was held that the witness delayed too long his withdrawal from the case, but that probably the chancellor considered all the circumstances in deciding what weight to give his testimony. In McConnell v. Brown, 232 Ill. 336, where a solicitor had testified for his client in a chancery case, the court plainly intimated that this was improper, but held that the testimony he gave was not of controlling importance. This was the condition of recent judicial decisions upon this subject in this state when this case was tried in the court below. 'So far as we can see from this record, it must have appeared to the trial court that the attorneys for plaintiff knew that upon certain material questions they had not sufficient testimony to warrant a verdict for plaintiff except by resort to proof of what defendant had said to them, and that if they intended to testify for plaintiff it was their professional duty to have withdrawn entirely from the litigation before the trial began. The formal withdrawal of Wiley just before taking the stand at the close of plaintiff’s proofs was not sufficient to relieve him of the strictures contained in the foregoing decisions. While some of these decisions implied that the testimony was nevertheless competent, others suggested that its admission might be reversible error. If these were the final decisions of our Supreme Court upon the subject, it would be a serious question whether the ruling of the trial court, rejecting the testimony of these attorneys, should be disturbed. But in G-lanz v. Ziabek, 233 III. 22, decided since the judgment in the case before us was rendered, it is distinctly held that while an attorney ought to withdraw from the case before he becomes a witness for his client, yet if he does not do so his testimony is nevertheless competent, and the fact that he is an attorney of record for the party who calls him only affects his credibility. Under this decision we must hold that Browne and Wiley were competent witnesses to testify for plaintiff, and that the court erred in excluding the evidence of Browne as to the facts defendant told him about the dog, and in refusing to permit the proof offered to be given by Wiley. Whether such proof would support a verdict founded upon it might depend upon what contrary proof, if any, the defendant introduced.

It is, however, argued that the offered testimony was not sufficient to show that the dog was liable to attack and bite mankind, nor that defendant knew that fact, and therefore, even if the rejected evidence had been admitted, a case for plaintiff would not have been made, so that the rejection of the evidence was not reversible error, and it was proper to instruct the jury to find for defendant. The language which it was proposed to prove that defendant used was evidently capable of two constructions. It might be construed to justify the inference that defendant placed the dog in the hands of a friend and directed him to be tied up, and expected that he would be kept tied up, and would not be permitted to run at large, because defendant knew that the dog would be liable to hurt somebody if he was permitted to run at large. On the other hand, it may be that the true interpretation of this language is that defendant was ignorant of the character of the dog, and for fear that the dog might have some vicious habits not known to him, he caused the dog to be tied up, by way of precaution and so that, if he was in any way vicious, he would be unable to hurt anyone. If the former was his meaning, then it strongly tended to supply the missing links in the proofs required to establish plaintiff’s case. If the latter was the meaning of defendant, then plaintiff’s proof would still have been insufficient. Our conclusion is that the trial court was not at liberty to determine what meaning should be attributed to the language which it was sought to prove that defendant used, but that the jury should have been left to determine what defendant said and what he meant, in view of all the testimony in the case, and therefore that it was reversible error to refuse to permit the introduction of this testimony.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    The People, ex rel. Mary Shanley et al., Appellees, v. Daniel J. O'Connor et al., Appellants.
    Gen. No. 5,006.
    Appeals and ebrobs-when franchise involved. A franchise is involved in an appeal to determine the propriety of a judgment in an action of quo warranto ousting a drainage district and drainage commissioners from the exercise of corporate powers, etc.

      Quo warranto.- Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldkedge, Judge, presiding.
    Heard in this court at the April term, 1908.
    Transferred to the Supreme Court.
    Opinion filed August 10, 1908.
    James J. Conway, for appellants.

      Charles S. Cullen, State’s Attorney and Browne & Wiley, for appellees; L. H. Strawn, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

This is an appeal by the commissioners of Union Drainage District No. 1 of the towns of Wallace and Waltham, in LaSalle county, from a judgment in an action of quo warranto ousting said drainage district and said drainage commissioners from exercising any corporate powers, franchise or jurisdiction over certain lands of the relators which the drainage district had determined had been annexed to said district by the connection of drains on said lands with the drains of the district, under section 42 of the Farm Drainage Act. In many similar cases the Supreme Court has taken jurisdiction of appeals and writs of error directly from the Circuit Court. People v. Drainage District, 235 Ill. 278; Schafer v. Gerbers, 234 Ill. 468; Patton v. People, 229 Ill. 512; People v. Schafer, 228 Ill. 17; People v. Monroe, 227 Ill. 604; Hepler v. People, 226 Ill. 275; People v. Zellar, 224 Ill. 408; People v. Drainage District, 191 Ill. 623; People v. Commissioners, 189 Ill. 55; People v. Commissioners, 181 Ill. 177; People v. Drainage District, 155 Ill. 45; Drainage District v. People, 147 Ill. 404. In some of the above cases the right of the drainage district to exercise any jurisdiction was questioned. In others the lawful existence of the drainage district was conceded, and the attack was upon its effort to extend its jurisdiction over lands which had been outside of the district as originally organized. The ground on which the Supreme Court received these cases upon appeal or writ of error from the Circuit Court was doubtless that a franchise was involved. People v. Cooper, 139 Ill. 461, 485. While much of the controversy in the case before us relates to the question whether the proper defendants were before the court, yet it is assigned for error that the court erred in entering the judgment of ouster. We are of opinion that we have not jurisdiction of this appeal. It is therefore our duty to transfer the cause to the Supreme Court under section 102 of the Practice Act of 1907. The clerk is therefore directed to transfer the record and files herein to the clerk of the Supreme Court.

Transferred to the Supreme Court.


text:
    Gilmer Creamery Association, Appellee, v. George Quentin, Appellant.
    Gen. No. 5,014.
    1. Landlord and tenant—when execution of lease 6y corporation sufficient. In an action for the recovery of arrears of rent accruing during occupancy, a lease signed by two of the three directors of a corporation plaintiff is competent where it is apparent that such directors signed for the purpose of binding the corporation.
    2. Pleading—what plea in lar. While a plea that there is no such corporation as the defendant named is in abatement and cannot be tried at the same time with a plea in bar, yet a plea denying that the plaintiff is a corporation is a plea in bar.
    3. Corporations—when question of forfeiture of charter will not le collaterally considered. In an action for rent by a corporation the question as to whether its charter has been forfeited will not be considered.
    4. Corporations—when estoppel to deny corporate existence arises. A party who has dealt with a corporation as an existing corporation and has received and used its property under an agreement with it, cannot, in a suit to collect the stipulated sum, be permitted to deny the corporate existence of such corporation.
    5. Corporations—effect of cancelation of charter ly secretary of state. The cancelation which -the statute authorizes the secretary of state to enter upon his records in case the corporation fails to make its annual report, is not an absolute forfeiture of the charter but is merely prima facie evidence of non-user of which the public, can avail in a direct proceeding to oust the corporation of its franchise.
    6. Instructions—when peremptory should not le given. If the evidence introduced in behalf of the party against whom a peremptory instruction is asked, with the legitimate inferences to be drawn therefrom, fairly tends to support the cause of action or the defense of such party, the weight and sufficiency of such evidence and the question where the preponderance lies, must be submitted to the jury, even though the court should be of the opinion that the weight was on the side of the party asking the instruction.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lake county; the Hon. Abthtjb H. Fsost, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Ben. H. Miller, for appellant; Charles Whitney, of counsel.
    Cooke, Pope & Pope, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee sued appellant to recover rent alleged to be due under a lease, and recovered a judgment before a justice. In the Circuit Court, on appeal, the cause was tried by a jury and at the close of appellee’s evidence the court instructed the jury to find for the appellee and assess its damages at $166.66. Such a verdict was returned, a motion by appellant for a new trial was denied, appellee had judgment on the verdict and defendant below prosecutes this further appeal.

Appellee is an Illinois corporation, organized to manufacture butter and cheese. Appellant contends that the court erred in admitting in evidence the lease, on the ground that it does not appear to have been executed by the corporation. The lease, which is not under seal, purports to be between the Gilmer Creamery Association, as party of the first part, and George Quentin, as party of the second part, and thereby the first party purports to lease, to the second party, the Gilmer cheese and butter factory, all machinery, etc., from May 1, 1904, to May 1, 1905, at $50 per month.

The lease was in two parts. The first part was signed only by George Quentin. Upon the execution of the instrument he took possession, and he paid rent thereunder, for several months. It was unnecessary for appellee to prove that it executed the lease at all, in this suit against appellant for rent. If he signed the lease promising to pay rent to appellee and appellee then put him in possession and he enjoyed the premises and attorned to appellee and paid rent, he would be liable for whatever rent was in arrear during the time he was so in possession, whether appellee signed the lease or not.

Appellee did deliver to appellant another copy of the lease signed only by H. G. Meyer and Henry Blume, without the corporate name being signed to said lease. These two signers of the second copy were in fact, two of the three directors of the corporation, and it is clear that they signed for the purpose of binding the corporation. The court properly admitted the lease.

In the Circuit Court appellant filed a plea that, at the time of the commencement of the suit, there was no such corporation as the Gilmer Creamery Association. While a plea that there is no such corporation as the defendant named is in abatement and cannot be tried at the same time with a plea in bar, yet a plea denying that the plaintiff is a corporation, is a plea in bar. Keokuk Bridge Co. v. Wetzel, 228 Ill. 253. It would seem, therefore, that appellant was entitled to the benefit of this plea. Appellee offered in evidence the certificate of the organization of the corporation. Appellant offered in evidence a certificate by the secretary of state, dated prior to the execution of this lease, wherein it was certified that the Secretary of State had declared the charter of the Gilmer Creamery Association cancelled for failure of the corporation to make an annual report to the Secretary of State, and pay a fee of $1 therefor. The court refused to admit this certificate. We are of opinion that the question whether appellee had forfeited its charter could not be determined in this collateral proceeding, but only in an action instituted against the corporation for that express purpose. Williams v. Bank of Illinois, 1 Gilm. 667; Baker v. Backus, 32 Ill. 79.

Appellant having dealt with appellee as an existing corporation, and having received and used its property-under an agreement with the corporation, cannot, in this suit to collect the agreed rent, be permitted to deny its corporate existence. Board of Education v. Bakewell, 122 Ill. 339; Bushnell v. Consolidated Ice Machine Co., 138 Ill. 67. But further, the cancellation which the statute authorizes the Secretary of State to enter upon his records in case the corporation fails to make its annual report is not an absolute forfeiture of the charter, but is merely prima facie evidence of nonuser of which the public can avail in a direct proceeding to oust the corporation of its franchise. People v. Rose, 207 Ill. 352. No such proceeding had been instituted and the certificate in question did not create a defense to this suit.

The main question is whether the court erred in directing a verdict for appellee. The lease, which contained a number of provisions, required appellant to pay appellee $50 per month, at the same time that he paid his patrons for that month. The lease also contained a provision authorizing either party to terminate the lease by giving the other party thirty days’ notice. Appellant had paid all rent up to December 1,1904. On February 10,1905, he gave notice to terminate the lease and on March 10, 1905, he vacated the premises. The rent at the terms of the lease at $50 per month from December 1, 1904, to March 10, 1905, amounted to $166.66, and the same had not been paid, and the direction of a verdict for appellee for that amount was correct, unless the matter about to be stated constituted a defense thereto. Early in December or perhaps before that month, appellant began telling the directors and stockholders of appellee, that the business of the factory was so slight that he could not afford to pay the rent, and that, if the company insisted on Ms paying rent, he would give thirty days’ notice and move out. It is clear that Blume, who appears to have been the president, was of opinion either that appellant ought to be given the premises without rent from December 1, to the end of the term, or else that it was for the interest of appellee to give appellant the rent for that period rather than have Mm cancel the lease and move out. A meeting of directors, stockholders and patrons was held on December 10, but it was not regularly or properly called, and it was attended by as many patrons who were not stockholders as by stockholders. H. C. Meyer, who apparently was still a director, telephoned appellant that he could not be present, but that he would not consent to the proposition. Blume and H. C. F. Meyer were present and they were the majority of the directors. The meeting was informal and does not seem to have been called to order, nor was any vote taken, but the subject discussed was whether appellant should be permitted to occupy the factory for the rest of the term from December 1, without rent. The proof in behalf of appellant was to the effect that Blume told those present that the company would either have to give appellant the rent from December 1 to May 1, or else close up the factory, and that at the close of the informal discussion Blume said: “It is understood that Mr. Quentin is to have the factory from December 1 to May 1, rent free;” and that H. O. F. Meyer, the second director, was present when this was said and made no objection, but had previously said that they would have to do that or close up. H. G. F. Meyer having afterwards testified denying that he heard Blume make this statement, it was proven by appellant, by way of impeachment, that on the next day after the meeting H. C. F. Meyer told a witness that he had told Quentin at that meeting that he could have the factory, rent free, from that time on, and that Quentin had got the factory without rent. The majority of the directors could bind the corporation. The lease gave appellant the right to terminate its provisions on thirty days’ notice. This evidence tended to show that the two directors then agreed that in consideration that appellant would stay to the end of the term and thus avoid the necessity of closing the factory to the injury of its patrons, the company would give appellant the premises without rent from December 1 to May 1. Afterwards, early in February, the secretary demanded the rent and appellant then gave the notice the contract authorized.

If appellant had continued to occupy the factory then he would have been entitled to have the question whether such an agreement was made submitted to the jury. The record before us appears to contain a preponderance of evidence that no such agreement was made at that meeting. But, on a motion of this kind to instruct the jury to return a verdict in favor of one party, the court is not at liberty to weigh the evidence. If the evidence introduced in behalf of the party against whom the instruction is asked, with the legitimate inferences to be drawn therefrom, fairly tends to support the cause of action or defense of such party, the weight and sufficiency of such evidence and the question where the preponderance lies must be submitted to the jury, even though the court should be of the opinion that the weight was on the side of the party asking the instruction. I. C. R. R. Co. v. Bailey, 222 Ill. 480; Chicago Union Traction Co. v. Lowenrosen, 222 Ill. 506. But the consideration which appellant was to give for having the premises rent free from December 1, was that he was to occupy and run the factory till May 1, thus saving appellee and the patrons of the factory from the inconvenience which might result from the danger that the factory would be shut down. Appellant did not keep this contract. He moved out on March 10, and thereby deprived appellee of the consideration which induced it to agree to let him have the factory rent free, if it did so agree. True, the secretary telephoned, asking him for the rent, as if the agreement to let him have the factory free had not been made. But the secretary was not the corporation. He does not seem to have even been a director. He may not have known of the agreement, or he may not have wished to consider it as in force. But he could not abrogate a contract made by the majority of the board of directors.- Appellant should have refused to pay and stayed in possession and performed his part of the contract. We conclude that when he moved out before the time agreed, he gave appellee the right also to treat the alleged contract as abrogated. Therefore, the jury could not find for appellant, and it was proper to direct the verdict.

We find no reversible error in the record. The judgment is therefore affirmed.

Affirmed.


text:
    Arthur E. Field, Appellant, v. A. F. Morrison, Appellee.
    Gen. No. 5,021.

      Animals—what essential to fasten liability for injuries received from. In order to recover for injuries received from an alleged vicious animal, it must appear that the defendant knew that such animal had attacked or had bitten mankind, or else it must appear that the defendant had knowledge of the propensities of such animal in that respect.
    Action on the case. Appeal from the Circuit Court of Livingston county; the Hon. Geokgb W. Patton, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    W. C. Graves and Owen Anderson, for appellant.
    A. C. Norton, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellant, a traveling man, was at a village in Livingston county, and there at a livery stable hired a horse and buggy for the purpose of going fishing. He took with him one J. M. Syphers, a merchant. As they drove along a highway past the farm of appellee another buggy was behind them containing four other men who were on a like errand. Syphers was driving in the front buggy. The horse ran away and appellant was thrown out and seriously injured. He attributed the accident to the conduct of a dog owned by appellee, and sued appellee to recover damages for his injuries, and at the close of plaintiff’s proofs at the trial the court directed a verdict for appellee, which was rendered. A motion for a new trial was denied, appellee had judgment, and appellant prosecutes this appeal.

The horse in question had run away on a previous occasion and was spirited and nervous. Its owner, the livery stable keeper, was not accustomed to let the animal to every one who wished to hire a horse, but only to those whom he thought capable of controlling it. He was accustomed to warn persons to whom he let the horse. He did not warn appellant. Appellant knew that the horse was a runner, and the livery stable keeper told him (perhaps in irony) he was sorry to let him have so slow a horse. As Syphers, with appellant in the buggy, drove by appellee’s farm and front gate, appellee came out of the gate with a bucket upon his arm, apparently upon some business connected with his farm, and accompanied by a large shepherd dog. Syphers had a small dog which was running along with the buggy. The witnesses for appellant differ as to whether the small dog was ahead of the horse or behind the buggy or beside the horse. When the shepherd dog saw the little dog he ran up to him, and the little dog faced around towards the large dog. One or two witnesses said the large dog barked or growled. The other witnesses for appellant did not hear any barking or growling. Appellant testified that the large dog took hold of the small dog by the back of the neck. All the witnesses agree that the dogs did not fight. Appellant testified that it seemed to him as if the dogs got about under the horse. All his other witnesses testified that the dogs were at the side of the horse and from two to four feet from him. The dogs did not molest or notice the horse in any way and evidently did nothing more than any two dogs might on meeting, that did not fight or quarrel with each other. The horse kicked at the dogs and did not hit them, but he broke the shaft or thill of the buggy on that side. The sharp point of the broken thill projected against the horse’s side. Appellant caught the lines out of Syphers’ hands and pulled strongly upon them. This caused, the sharp point of the thill to stick into the side of the horse. Syphers protested against appellant pulling on the lines, but he kept on pulling. The horse was frightened and kicked savagely and kicked Syphers twice on the knees. The horse ran away and appellant either jumped out or was thrown out, and was severely injured. Appellant’s witnesses testified that when they had driven by appellee’s farm on former occasions, if they were accompanied by a dog appellee’s dog was accustomed to run out and bark at the other dog and then go back, and that if they want by unaccompanied by a dog, appellee’s dog did not run out and bark. Appellant testified that he had driven by there on two or three former occasions when the dog ran out and barked, though he had no dog with him. There was no proof that the dog had ever on any such occasion fought with another dog on the highway or that he had ever attacked man or beast. This dog made no attack on the horse on this occasion.

In Mareau v. Vanatta, 88 Ill. 132, the law governing this case is thus stated: ‘ ‘ The owner of - domestic or other animals not naturally inclined to commit mischief, as dogs, horses and oxen, is not liable for any injury committed by them to the person or personal property of another, unless it can he shown that he previously had notice of the animal’s mischievous propensity, or that the injury was attributable to some other neglect on his part, it being, in general, necessary, in an action for an injury committed by such animals, to allege and prove the scienter.” Cases of this character seldom reach the Supreme Court since the organization of the Appellate Courts, but the same rule has been announced and applied to the varying facts of different cases in the following, among other cases in the Appellate Courts, including this court: Moss v. Pardridge, 9 Ill. App. 490; West Chicago St. Ry. Co. v. Walsh, 78 Ill. App. 595; Fritsche v. Clemow, 109 Ill. App. 355; Feldman v. Sellig, 110 Ill. App. 130; Ward v. Danzeizen, 111 Ill. App. 163; Swanson v. Miller, 130 Ill. App. 208.

Under these authorities it is obvious that the proof introduced by appellant did not tend to show a cause of action against appellee. It was not shown that appellee’s dog was accustomed to bite mankind or to attack other animals. If he did take hold of the little dog by the back of the neck on this occasion, that conduct seems to have been playful rather than vicious, and if it was vicious, then the dog is not shown to have made any such attack before. Neither the vicious character of the dog nor the scienter is proven. Where the evidence does not tend to make a case for the plaintiff, or where proof of some material allegation necessary to a recovery is wholly lacking, it is the duty of the court to direct a verdict for the defendant. The court did not err in directing this verdict.

The judgment is therefore affirmed.

Affirmed.


text:
    Chester M. Turner, Administrator, Appellee, v. Robert Fell et al., Appellants.
    Gen. No. 5,025.
    1. Administbation of estates—what does not bar sale of homestead to pay debts. A great lapse of time between the allowance of a claim and the application to sell does not of itself bar the right to have a homestead sold to pay such claim after allowance.
    2. Admiotstbatioit of estates—when filing of just and true account not essential to sale of real estate to pay debts. If it has been shown by the administrator that the personal estate has been exhausted, a just and true account need not be filed.
    3. Administbation of estates—when widow’s award does not bear interest. At least, until the widow has elected to take her award or the balance due thereon in cash, such award or such balance does not bear interest.
    Petition for sale of real estate. Appeal from the Circuit Court of Stark county; the Hon. Bbadfobd F. Thompson, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Victor G. Fuller and James H. Rennick, for appellants.
    Chester M. Turner, for appellee; W. W. Wright, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

Gustav Herman Geisenheiner died in Stark county about March 24, 1879, testate. Benjamin Turner was named as executor and qualified and administered the personal estate, and sold the real estate except the homestead, occupied by the widow, and distributed the proceeds, and died. His attorney filed a report for him after his death, which was approved. A large sum was left unpaid in seventh class claims. A widow’s award had been made, on which she had taken certain personal property, leaving a balance due her of $483.25. The homestead was worth less than $1,000, and no sale thereof was then made. The widow died September 22, 1907. Thereupon appellee was appointed administrator de bonis non with the will annexed of the estate of said Gustav H. Geisenheiner, deceased, and filed a petition to sell the homestead for the payment of debts. The deceased had left no descendants, and the only persons in interest, other than the creditors, were the executor and beneficiaries under the widow’s will. They answered, asserting that the widow was entitled to interest on the award, and that her executor and beneficiaries were also entitled to be paid a large sum for improvements she had placed upon the property, and that these two sums far exceeded the value of the homestead premises, and they asked therefore that the premises be not sold, but that said executor and beneficiaries of the widow be permitted to take said homestead free from the claims of the unpaid creditors of Mr. Geisenheiner. The court below found the amount- of said unpaid claims, and that they bore interest; found the amount of the balance due on the widow’s award as above stated, and that it did not bear interest; ignored the claim for improvements, and the request of the defendants that the property be not sold; and directed the sale of the premises for the payment of the debts. The beneficiaries and the executor under the widow’s will appeal.

The contention that the homestead cannot be sold to pay the claims because of the great lapse of tune since they were allowed is settled adversely to appellants by People v. Lanham, 189 Ill. 326. This was approved as to facts like those in the case at bar in Hanna v. Palmer, 194 Ill. 41, Graham v. Brock, 212 Ill. 579, White v. Horn, 224 Ill. 238, and Frier v. Lowe, 232 Ill. 622.

It is urged that the administrator de bonis non did not file a just and true account. Having shown that the personal estate was exhausted, this was excused. It is contended that the former executor did not properly apply the moneys he received, and especially that he paid certain real estate taxes improperly. His acts have been approved many years ago. As his payment of the taxes was approved, it must be presumed, in the absence of the will from this record, that it authorized their payment. If there had been any misappropriation of those funds, still they were very much less than the outstanding claims allowed, and it would still be necessary to sell this real estate. There is nothing in these contentions to impair the decree for the sale of the homestead.

The certificate of evidence does not show that the widow elected to take the balance due on her award in money and at least until this was done, and her selection of personal property and election to take the balance in money approved by the court, she certainly had no money judgment which would bear interest. Field v. Field, 215 Ill. 496. Whether a case could be made where interest would be allowable on a widow’s award after the approval of her selection and election by the court is not presented for decision. If the allowance of the principal of said balance due on the award is in any way in doubt, under the proofs in this record, no cross errors have been assigned to question that part of the decree.

The certificate of evidence does not show that any proof was made that the widow had made any improvements upon the homestead while she occupied it, nor that said improvements enhanced the value of the property, and therefore there was no basis upon which the court could even consider whether her executor had a right to be allowed for any such improvements; and no question can be raised here upon the correctness of the court’s decree in that respect.

The decree is therefore affirmed.

Affirmed.


text:
    Russell Strafford, Appellee v. Republic Iron & Steel Company, Appellant.
    Gen. No. 5,028
    1. Appeals and ebbobs-when assignment of error deemed waived. An assignment of error not argued is deemed waived.
    2. Pebsonal injtjeies-liability for, by reason of employment of child under age of 11¡. at prohibited employment. One who contrary to the statute employes a child under 14 years at a prohibited employment is liable for resulting injury even though such child was working at a machine either in disobedience to orders or without any direction to work there.
    3. Contbibutoby negligence-when no defense. Contributory negligence is no defense to an action instituted by a child under 14 years to recover for injuries sustained while being employed at a prohibited occupation.
    Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Richard Jones, Jr., William A. Meese and Peek & Dietz, for appellant.
    W. R. Moore, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee received such injuries while in the employ of appellant, at a certain machine in its steel mill or manufacturing establishment, that his left arm was necessarily amputated above the elbow and he lost one finger of the right hand. He was then thirteen years, eleven months and eight days old. Section 1 of the act of 1897 to regulate the employment of children in the state of Illinois enacts: “That no child under the age of 14 years shall be employed, permitted or suffered to work for wages at any gainful occupation hereinafter mentioned.” Among the oceupations thereafter mentioned in said act are ‘ ‘ Manufacturing establishment, factory or workshop.” Section 6 enacts that no 6 £ child under the age of 16 years shall be employed or permitted or suffered to work by any person, firm or corporation in this state, at such extra hazardous employment whereby its life or limb is endangered.”

When appellee first began working for appellant he was placed there by his father who was then superintendent of the night turn, but the father had ceased to be in the employ of appellant more than a month before this injury and appellant still retained appellee in its employ.

Appellee brought this suit to recover damages for these injuries. The first and second counts of the declaration alleged that appellee was under the age of 14 years and that his employment by appellant was wrongful and was the proximate cause of his injuries and that his injuries were the direct result of said wrongful employment.

The third count averred that appellee was under 16 years of age and that his employment was unlawful and the work at which he was set was extra hazardous. There was a plea of not guilty, a jury trial,' a verdict for appellee for $10,000, a motion by appellant for a new trial, which was denied, and a judgment against appellant on the verdict, from which judgment defendant below prosecutes this appeal. It was assigned for error that the damages are excessive, but this assignment is not- argued and is therefore waived.

There was one controverted question of fact. The injury occurred while appellee was feeding angle irons into a machine called a straightener. His left arm was caught between two angle irons fed into the machine at once, when only one at a time should have been fed into it, and his left arm was drawn into the machine between these two irons and crushed, and he received the injuries to his right hand while trying to extricate his arm. Appellee’s proof tended to show that he was set at this work by the foreman. Appellant’s proof tended to show that the foreman ordered him away from the machine, and that he was set at the work of wheeling angle irons to the straightener, and that his efforts to feed the angle irons into the machine were outside the duties required of him by his foreman and were against his foreman’s orders. The foreman admits that he had seen appellee feeding angle irons into this machine at least twenty times before that. There was a man in charge of the machine, and at the time in question he was engaged in adjusting certain parts so as to receive irons of a different size, and the machine was running slowly. The angle irons were being fed to it to test the size of irons which the machine would receive, and to determine whether the adjustment was as desired. This man knew that appellee was at that time feeding the machine, and told him to feed more slowly or to quit. He was therefore at least permitted to do that work by the man in charge of the machine at the time he was injured. The state of the proof is such that we would not be warranted in disturbing the conclusion of the jury on this question of fact after it had been approved by the trial judge.

Appellant seeks a reversal of the judgment upon the .ground that the court erred in giving appellee’s instruction No. 2, and in refusing instructions Nos. 10, 11, 13, 14 and 15, requested by appellant. Appellee’s instruction No. 2, after stating the substance of section 1 of the statute, told the jury that it did not make any difference whether' appellee was or was not told by the foreman to work on the straightening machine, if he was under 14 years of age at the time and was working for appellant in its manufacturing establishment for a compensation to be paid him by appellant. The.tenor of appellant’s 10th instruction refused was that appellee could not recover unless he was in the exercise of due care; of the 11th, that he could not recover if he was not ordered by the foreman or by any one in authority to work at the machine at which he was injured, but was ordered to perform other labor; of the 13th, that appellee could not recover if at the time of the accident he was doing work which he was forbidden by appellant to do; of the 14th, that he could not recover if at the time he was injured he was doing work which he was not authorized to do by appellant; and of the 15th, that he could not recover unless the proof showed that appellant was negligent as charged in the declaration.

A similar statute was before this court in Marquette Third Vein Coal Company v. Dielie, 110 App. 684. We there said: “The statute absolutely forbids the employment of a child of that age in a mine. One reason, no doubt, is that immature children are liable not to understand the significance and importance of the regulations prescribed for the mine and the employes therein; they may thoughtlessly disobey orders, or expose themselves to peril, or do acts which would be careless in an adult. The company which violates this statute ought not to be allowed to screen itself from liability bcause the child had been injured by reason of those childish traits which give rise to the statute. 'Statutes like section twenty-two of the mining act, prohibiting the employment of children under certain age limits, are designed to guard against the dangers from accidents to the children of the state, and also to protect the health and general well-being of the children. Such laws are sustainable under the police powers of the state, and should be so construed as to accomplish the object sought to be attained, and to correct the evils sought to be remedied. Holding the employers of children in violation of this statute to a strict liability for any injury that may happen to the child while engaged in such inhibited employment ought to have a wholesome influence tending to check the evils against which the legislation is directed. * * * We are of opinion defendant should be held liable for any injury which occurs in its mine and by the operation of the mine to an infant whom it has employed there contrary to law. The statute forbids that so young a child should be employed in such a mine.

“This child was exposed to danger, and was injured, because defendant wilfully violated the prohibition of the statute. Defendant exposed this immature child to the dangers from which the statute aimed to protect it. Defendant virtually says, 1 True, I put this child in a place of danger, contrary to law, yet if it had been careful, had obeyed my orders and rules, and had done none of those childish acts which are to be expected from one so young* and against the perils of which the statute was intended to protect it, it might not have been hurt; and therefore I am not responsible.5 We think this position unsound.,, We hold defendant assumed all risks of injury to the boy arising from his employment in the mine.” This judgment was affirmed in the Supreme Court under the same title in 208 Ill. 116, where that court said: ‘ ‘ The object sought to be accomplished by the statute was to prevent the employment of boys of immature years in the coal mines of this state, and we think, in case the statute is violated and a boy is injured while engaged in performing manual labor which he is employed or permitted to do in a mine, the statutory liability for damages has accrued.” American Car Company v. Armentraut, 214 Ill. 509, was a case under the statute now before us, where it was clear that the defendant had set the child at work at the dangerous machine by which he was injured. It was there held (disposing of appellant’s tenth instruction here), that the contributory negligence of the child would not defeat a recovery, saying: “So long as the child continued in the performance of the work he had been directed to do, appellant would be liable for any injury resulting to him, even though the negligence of the child may have contributed to the accident. If the child left the task which he had been directed to perform, and, while not engaged in doing work which he had been directed to do by his master, was injured through an accident to which his own negligence contributed while he was still in or upon the premises of the master, a different question would present itself.” By this language the Supreme Court left undecided the question whether appellant is liable to the child here if it was working at this machine, either in disobedience to orders or without any direction to work there.

In Iron & Wire Company v. Green, 108 Tenn. 161, under a like statute, and a case where an infant under twelve years of age was injured in the service of a manufacturing corporation, the plaintiff’s testimony was that he was obeying an order of the master when he was injured, while the evidence for the defendant was that he was at the place where he was hurt without orders and on a matter not connected with his employment. It was held that even on the theory of defendant’s proof, defendant was liable; that the employment was a violation of the statute; that every injury that resulted therefrom was actionable, and that the relation of cause and effect existed between the employment and the injury. We are of opinion that it is in harmony with the purpose of our statute on this subject that appellant should be held liable even if appellee had left the work he was directed to do and was doing work which the foreman had ordered him not to do, and this even without regarding the directions which the man in charge of the machine gave to appellee, and which recognized his work as proper if he did not feed the machine too fast. Appellant violated that statute when it hired this boy and kept him in its employ. When the foreman found, if he did so find, that appellee was disposed to disobey the foreman’s orders, he should have put appellee out of the factory. Appellee was very young and immature, and it is quite likely that he did not realize the importance and necessity of strictly obeying orders. It was against that very childishness that the law intended he should be protected. Therefore we hold the rulings of the court correct on instruction No. 2, given, and on Nos. 10, 11, 13, 14, refused. The 15th instruction was incorrect because it required appellee to prove that appellant was negligent as charged in the declaration, whereas the declaration did not charge negligence, but charged a violation of law.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    Frank L. Myers, Appellee, v. John A. Buell, Appellant.
    Gen. No. 5,031.
    1. Appeals and ebbobs—when propriety of giving peremptory instruction preserved for review. A motion for a new trial is not essential to preserve for review the question of the propriety of the giving of a peremptory instruction.
    2. Real estate commissions—how obligation to pay, cannot be defeated. A party cannot defeat his obligation to pay real estate commissions by voluntarily canceling the contract of purchase and sale obtained by the real estate agent.
    Assumpsit. Appeal from the Circuit Court of Livingston county; the Hon. Geobge W. Patton, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Z. F. Yost and H. H. McDowell, for appellant.
    R. S. McIlduff and B. R. Thompson, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee sued appellant to recover $200 alleged to have been agreed by appellant to be paid appellee as commissions upon a real estate transaction. He had a verdict and a judgment for that amount, from which defendant below appeals.

At the close of appellant’s evidence appellee moved the court to find the issues for the plaintiff. The court denied this motion, but after the evidence in rebuttal had been heard the court reversed its former ruling and gave an instruction to the jury to find for the appellee and to assess his damages at $200 and the verdict was rendered in obedience thereto. The bill of exceptions does hot contain any motion for a new trial nor any exception to the denial thereof. The sufficiency of the evidence to support the verdict is therefore not presented for our consideration. The giving of the instruction was excepted to and that ruling was preserved for review without a motion for a new trial. I. C. R. R. Co. v. O’Keefe, 154 Ill. 508.

Appellant owned some real estate in Pontiac, which he wished to trade for farm property, and he applied to appellee to get him such a trade. Appellee replied that he had no farm listed, but he knew a party who had. According to appellee’s testimony appellant told appellee he would give him $200 to get him a trade. According to appellant’s testimony he told appellee that he would give him $200 to have a trade go through, or he would give him $200 when the trade was completed and all the papers turned over. On a motion to direct a verdict the court could not weigh this conflicting testimony and decide which version of the contract was true, and if the case turns upon the question which version of the contract is correct the judgment must be reversed. If, however, assuming-appellant’s version of the contract to be true, still appellee was entitled to recover, then the ruling did not harm appellant.

Appellee secured and procured the execution, both by appellant and the opposite party, of a contract for the trade of a farm of 320 acres in Indiana for appellant’s city lots and cash. The other party to the contract was one Obadiah Naden, and his signature to that contract was by B. O. Naden his agent. It is contended by appellant that he was not bound by the contract because it was under seal and the authority of B. O. Naden to sign for the first party was not shown. Appellant offered in evidence a bill in equity and an amended bill, filed by Obadiah Naden against appellant, in which the complainant asserted that this was his contract. As he adopted the contract he was bound and appellant was also bound. In that suit the parties signed a stipulation in which they recited the execution of this contract by Obadiah Naden, by B. O. Naden, his agent. It is therefore clear that this contract bound Obadiah Naden.

After this contract had been made appellant told appellee his children were opposed to going to Indiana and he feared he could not carry out the contract. Afterwards he told appellee that he had matters fixed so that the contract would be carried out. Still later he again told appellee that he would not carry out the contract on account of the opposition of his family. Naden filed the bill in equity already mentioned to compel appellant to fulfill the contract. Appellant filed an answer resisting the attempt to compel him to convey. He alleged that he had been defrauded in the contract, but set up no facts showing any fraud. He also filed a cross-bill to set aside the contract. He now alleges that a certain clause in the contract, providing for a forfeiture of payments if he failed to perform, made this only an option contract, but he did not set up any such claim in the pleadings in said suit. Thereafter the parties to that suit, Naden and appellant, settled that controversy by a written stipulation in which they agreed to a cancellation of the contract. Assuming that the contract was as testified by appellant that he was to pay $200 for a completed trade, yet he could not, after a binding contract had been procured for him, cancel it of his own accord and thereby defeat his agreement to pay the commission. He had visited the land and was familiar with it, and no reason is shown why he should not have performed his contract. Appellee did all that he could do. Appellant was the one who prevented the exchange of papers, by entering into this stipulation. We conclude that under the evidence appellee was entitled to recover.

The judgment is therefore affirmed.

Affirmed.


text:
    Milton Lucas, Appellant, v. City of Pontiac, Appellee.
    Gen. No. 5,037.
    1. Notices—when provision of statute requiring notice to mumcipality of sidewallc injury not complied with. A notice given pursuant to the statute requiring notice to municipalities of sidewalk injuries sustained, which recites the time and place of the accident as follows: “on the sidewalk on North Hazel street some time ago,” is not sufficient.
    2. Notices—when notice required hy statute cannot be waived Toy municipality. A notice required by statute to be given to a municipality of a sidewalk injury is mandatory and cannot be waived by such municipality, and, even if it could, held, in this case, that a reference of the claim based upon such injury to a committee and negotiations for a settlement of such claim by such committee, did not constitute a waiver.
    Action in case for personal injuries. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    White & Tuesburg, for appellant.
    Bert W. Adsit, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellant brought suit against appellee to recover damages for personal injuries alleged to have been sustained by reason of a defective sidewalk upon a street within said city. The court below sustained a demurrer to an amended declaration and also sustained a motion to dismiss the suit and entered judgment against appellant for costs, and he appeals from that judgment.

Section 2 of the act of 1905, concerning suits at law against cities, villages and towns for personal injuries, requires the person injured, before bringing-suit for damages and within six months from the date of the injury, to file in the office of the city attorney and also in the office of the city clerk a written statement giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occured, and the name and address of the attending physician, if any.

Section 3 enacts that, if the notice required by section 2 shall not be filed as therein directed, “then any such suit brought against any such city shall be dismissed, and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.”

The amended declaration did not charge the filing of such notices with the city attorney and the city clerk. It did charge that within six months from the date of the injury appellant’s attorneys mailed to the city attorney two successive letters, set out in full in the declaration. The first gave the name of the person injured, and gave the place and time as “on the sidewalk on North Hazel street some time ago.” It inferentially gave the name of Hhe attending- physician. It did not give the residence of the person injured nor the address of the attending physician, and did not directly state that the physician named attended appellant for the injuries. The statement of the time and place of the injury did not at all satisfy the requirements of the statute. The second letter added nothing. There was therefore no compliance with the statute. It was held in Erford v. City of Peoria, 229 Ill. 546, that the statute above recited is mandatory and the giving of the notice must be averred as well as proved by the plaintiff to avoid a dismissal of the suit. Appellant sought to avoid the dismissal of Ms suit by further averments. The amended declaration averred that the city attorney went before the city council and stated that he had been notified of said injury and of appellant’s claim for damages therefor; that the city council referred the matter to the city attorney and the law and ordinance committee; that the city attorney “met” (whatever that may mean), and took appellant’s injury and claim for damages under advisement; that appellant’s attorneys went before the committee and made a statement to the committee ‘e giving the name of the plaintiff, the date and about the hour of the accident, the place or location where such accident' occurred, and the names and addresses of attending physicians;” that the committee took the matter under consideration, and negotiated with appellant and his attorneys for the settlement of the claim; and that thereby appellee waived all defects and omissions in said letters, and any and all notice of statements required by the statute. Two questions are presented: (1) whether the statement required by the statute can be waived by the city council; and if so, (2) whether the circumstances set out in the amended declaration constitute such waiver.

In Massachusetts, under a statute requiring notice to be given to the city of the time, place and cause of the injury witMn a certain number of days after the injury, it was shown in Gay v. City of Cambridge, 128 Mass. 387, that the plaintiff did not give notice within the time fixed, but did give such notice after-wards to the city; that the city council referred the notice to a committee, and that the committee negotiated with plaintiff as to a settlement, and made no objections as to the time when the notice was given. The plaintiff asked the court to hold that the city would waive the statutory notice in respect to time, and that such waiver could be inferred from the circumstances. The court held that the ruling was properly refused; that the liability of cities under the statute could not be extended by agreement with the city; that as the plaintiff failed to give the notice which was a condition precedent to his right to maintain the action, no liability ever attached against the city, and that the city council, or its committee, could not create a liability by any agreement or waiver. In Shea v. City of Lowell, 132 Mass. 187, under the same statute, the written notice given did not comply with the statute. It was held that “it would violate the provisions and defeat the purpose of the statute if the plaintiff was permitted to supply the deficiencies of the written notice by proof that the city or its officers had oral information from her, or from any other source, of the time, place or cause of her injury.” It was also held that the city clerk was not bound to make any reply when the defective notice was served upon him, and that his silence did not create a waiver, if he had power to waive the right of the city. In Starling v. Town of Bedford, 94 Ia. 194 (62 N. W. Rep. 674), where the amended petition much resembled the amended declaration in this case, under a statute similar to that above set forth, it was held that the statute was mandatory and absolutely prohibited the bringing of any suit, unless written notice was served, and that the city council could not waive the right to the service of notice. In Hastings v. Foxworthy, 45 Neb. 676 (34 L. R. A. 321), it was held that the requirement of such a notice in a similar statute was not in the nature of a limitation, but was a condition precedent to the maintenance of the action. The general rule is laid down in 15 Am. & Eng. Encyc. of Law, 2d Ed. 483, that such a statutory requirement of notice is mandatory and cannot be waived by the municipality. A few authorities are cited as holding the contrary rule, but we do not think them fairly in point or applicable. True, the Massachusetts cases were -under a statutory liability, while it is argued that the liability in Illinois is at common law; but we are of opinion that if that statement is strictly accurate, still this circumstance should not change the rule, and that it was properly held in Reining v. City of Buffalo, 102 N. Y. 308, that “it is immaterial whether a condition be imposed in the statute giving a right of action, or be provided by contract, or exists by force of some principle of common or statute law; the complainant must by the settled rule of pleading state every fact essential to the cause of action as well as those necessary to give the court jurisdiction to entertain the particular proceeding.” We are of opinion that the "authorities above cited are in harmony with the rule laid down by our Supreme Court in Erford v. City of Peoria, supra, and that the notice required by the statute, being a condition precedent to the right to bring an action, cannot be waived by the city.

We are also of opinion that if notice could be waived, nothing is set up in the amended declaration which would constitute a waiver. The city council did not profess to waive any of its rights, and we are of opinion that a reference of the claim to a committee, and negotiations for a settlement by the committee with appellant, had no tendency to create a waiver. The city council, having such a claim presented to it, certainly ought to be permitted to inquire into the nature of the claim and the circumstances of the case and to ascertain on what terms a settlement can he effected, without thereby waiving any of its legal rights.

The judgment is therefore affirmed.

Affirmed.