text:
    Albert B. Vancil, Appellee, v. Fred Schuette, Appellant.
    1. Contempt—when provision erroneously included in a decree. Where an accounting is ordered between two parties interested in the same business, there being no fraud in the case, it is error to provide in the decree that unless defendant pay the amount ordered within thirty days, he shall be considered and adjudged in contempt of court.
    2. Equity—when hill for accounting is improperly allowed. Where complainant, an employe in a certain company, entered into an agreement with defendant, principal owner of the capital stock to buy a one-fourth interest, continue his work in the stores of the company at a certain salary and to pay for' the stock with his share of the profits, his bill asking for an accounting should be dismissed for want of equity where his only complaint is that defendant was overbearing and discourteous in his treatment and had charged his salary for the second year at $165 a month instead of $80, as was done the first year.
    Appeal from the Circuit Court of Jackson county; the Hon. William N. Butieb, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed March 10, 1913.
    Schwartz & Hats and Hosea V. Ferrell, for appellant.
    James H. Martin and Andrew S. Caldwell, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

On June 18, 1903, appellant Fred Schuette, entered into a contract with appellee Albert B. Vancil, reciting that Schuette was the principal owner of the capital stock of the Leader Mercantile Company of Carbon-dale, Hlinois, and Vancil was a clerk in the employ of said company; that Vancil desired to purchase an interest in the business of the company and Schuette, by the contract, agreed to sell him a one-fourth interest in said business and to assign and transfer to him a number of shares of the capital stock of the company, equal in value to one-fourth of the value of the entire capital stock, for the sum of $3,600; that Vancil should continue his work in the store or stores of the company as before, devoting his time thereto and should receive pay for his services at the rate of $55 per month in cash and in addition thereto, should be entitled to one-fourth of the net earnings of the business, dating from the first day of February, 1903; that on the first day of February of each year thereafter, an account should be taken by the parties of the business of the company for the preceding year and that Vancil’s share of the profits, that is one-fourth thereof, should be paid to Schuette to be applied on said sum of $3,600, the purchase price to be paid by Vancil, until the whole of said sum, together with interest thereon at the rate of six per cent, per annum, from the date of said agreement, should be fully paid; that when said purchase price and interest should be fully paid, said Schuette should assign and transfer to Vancil a number of shares of the capital stock of said company, equal to one-fourth of the entire capital stock thereof; that all legitimate expenses of conducting the business should be deducted from the gross earnings, when the annual accounting was had and Vancil should be entitled only to one-fourth of the net profits. Differences subsequently arose between the parties to the contract and on March 28, 1905, appellee commenced this suit against appellant, by filing a bill in chancery.

The amended bill upon which the case was tried, in addition to setting up the contract above referred to, charged that the capital stock of said Leader Mercantile Company, was $5,000; that Schuette was the owner of 48 or 50 shares of said stock and had absolute management and control of the business; that after entering into the contract, appellee proceeded to discharge his duties under the same; that on February 1, 1904, appellant cast up the accounts and informed appellee Ms share of the net profits was $1,108.65 for the year then closed, and thereupon made an indorsement upon the written agreement above set forth of that amount; that during said year, appellant treated appellee courteously and Mndly but did not permit him to have access to all the books and papers of the concern, nor make a full and explicit showing of the entire business of the year so that appellee could ascertain the proper amount he should be credited with; that during the first year appellant drew each month the sum of $80, but at the beginning of the second year, he arbitrarily and over the objection of appellee, announced that from that date he would draw each month the sum of $165; that during the second year appellant’s conduct towards appellee changed and he became disagreeable, overbearing and inconsiderate of appellee’s rights and thereupon made appellee’s position unpleasant and embarrassing; that at the end of the second year appellee demanded an inspection of the books, bills and documents in order that he might make an accurate estimate of the business for the year then closing, but that appellant refused to permit the same and announced to appellee that he intended to charge as part of the expenses, the sum of $1,980 for his salary for the year, which was at the rate of $165 a month; that on or about the first day of February, 1905, appellee notified appellant of his dissatisfaction of the management of the business by appellant and requested him to account to and settle with appellee for his interest in' said business, but that appellant then and at other times since, when requested, refused so to do and now pretends that appellee is not entitled to any interest in the business or share in the net profits of the business for the second year which ought to be at least $500.

The prayer of the bill was that an account be taken of said business dealings and transactions, from February 1, 1903, to February 1, 1905, and that appellant Schuette be decreed to pay appellee what, if anything, should appear to he due him; and that appellee might have such other and further relief as equity should require.

A demurrer to the amended bill was overruled and an answer filed by appellant, admitting the contract and the amount of the net profits as credited for the first year and denying any mistreatment of appellee after the first year as alleged. It further stated that at the beginning of the second year, appellant told appellee he intended to charge $165 a month for the second year and that appellee did not object to the same; that said amount was intended to cover not only his own services but also those of his wife who was at the head of the millinery department; that at the end of the second year, appellee objected to his deducting $165 a month and thereupon, without other notice or warning, told appellant he was going to quit and a few days later left the service and refused to return; that when appellant learned that appellee was objecting to his receiving $165 a month, he told appellee he would in such case only deduct $80 per month for his s'ervices, but that appellee still refused to continue his employment; that said agreement to transfer said shares of stock was conditional upon the faithful performance by appellee of the conditions and stipulations mentioned; that appellee had not made out such a case as entitled him to relief and appellant therefore prayed the same relief and benefit as though he had demurred to said bill.

The cause was referred to the master, who in his report found the issues for the appellee, that the material allegations of the bill had been proven and that there was due appellee from appellant the sum of $1,527.55. This amount was arrived at' as follows: Appellant was first charged with $1,108.65, credited on the contract at the end of the first year. To the amount of $1,253.54, which was reported by appellant to appellee as the net profits of the business for the second year, there was added the sum of $1,020 which was the difference between appellant’s salary at $80 a month and $165 a month, making a total of $2,273.54, one-fourth of which, or $568.38, was treated as appellee’s share of the profits for the second year. From this last amount there was deducted the sum of $149.48, the interest at six per cent, on the balance due on the contract price of $3,600 for the second year, after deducting the, first year’s payment. This made the amount of appellee’s credit for the second year, $418.90, which added to its credit for the first year of $1,108.65, made the amount of $1,527.55.

Exceptions to the master’s report were overruled by the court and a decree entered, approving and confirming that report and in accordance with its findings. It was also ordered that appellant pay to appellee the sum of $1,527.55, with legal interest from the date of the decree within thirty days and that in default thereof he should be considered and adjudged in contempt of court.

There was no question of fraud raised in the case and the court below erred in providing in the decree that appellant should be held to be in contempt of court for failure to pay the amount found due within the time named. Waiving that question however, there are other reasons why this decree cannot be permitted to stand. It is doubtful if the bill itself stated a good cause for the intervention of a court of chancery. But if the bill could be held to be good the facts developed do not show that appellee was entitled to the relief asked for and given him. There was no attempt by appellee, upon the trial, to show that the profits of the business were different .from those stated by appellant. In fact the only evidence produced by appellee as to the amount due him, was his own testimony stating what appellant had-told him upon that subject, and his only complaints of appellant were that the latter had been overbearing and discourteous in his treatment and had charged his salary for thé second year at $165 a month instead of $80 as was done in the first year.

Appellant testified that two days after the end of the second year when trouble arose between them, he told appellee he would settle at $80 per month instead of $165, but that appellee refused to talk to him about it and walked away; that every time he tried to talk to appellee about the settlement, the latter would refuse to talk to him; that the only reason appellee assigned for so doing was that he wanted to quit, that he did not want to stay any longer; that when appellee quit he went right to work with a rival company in the same city.

Appellee, when asked on the trial if appellant did not offer to settle with him at the old rate for his salary, said that he had not; that appellant had tried to talk to him but that appellee would not talk and referred appellant to his lawyer. There does not therefore appear to have been any controversy between the parties which made an accounting of their affairs necessary. The amount of the receipts and disbursements were all known and the only real question was whether appellant was entitled to receive $165 a month instead of $80 a month during the second year. It does not even appear that there was a real controversy about this question as appellant seems to have been ready and willing to waive his claim for additional salary. The suit is based on the contract between the two parties above referred to, which appellee did not ask to have set aside. Under the proofs it appears that all that was necessary to be done to settle the account between the parties was to indorse the amount due appellee upon the contract. Appellee failed to make out a case entitling him to the relief sought and the decree of the court below will therefore be reversed and the cause remanded with instructions to the court below to dismiss the bill for want of equity.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Harry Davenport, Plaintiff in Error, v. Ziegler District Collieries Company, Defendant in Error.
    1. Instructions—when error to direct verdict. Where there is any evidence which with all its reasonable inference and intendment fairly tends to prove the plaintiff’s case, a peremptory instruction in favor of the defendant should not be given.
    2. Master and servant—when error to direct verdict. In a personal injury action where plaintiff, an employe of defendant, acting under the direction of the foreman in helping to move a wheel, is injured and the evidence shows that there are questions of fact as to whether plaintiff knew of the danger and as to whether the foreman was negligent, it is error to direct a verdict.
    Error to the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    Mooneyham & Seeber and T. M. Webb, for plaintiff in error.
    Denison & Speller, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.

Harry Davenport, a young man 22 years of age, brought this suit against the Ziegler District Collieries Company, to recover damages for personal injuries received by him while in the employ of the latter in Franklin county, Illinois. At the close of the plaintiff’s case, the defendant offered a peremptory instruction, which was refused by the court. At the close of all the evidence, the peremptory instruction was again presented by the defendant, which was given by the court and a verdict of not guilty, in accordance therewith, was returned by the jury. A judgment was entered against plaintiff for costs and the plaintiff brings the case here for review by writ of error.

As appears from the record, there was no controversy of any moment, concerning the facts in the case. On January 15, 1911, Davenport was working at the top of the mine of defendant in error, under the direction of its foreman, in the capacity of a day laborer, cleaning coal, loading timbers, handling cars and such other work as the foreman directed. The company had a small friction engine in a shed near the top of the mine, which was used principally to move loaded and empty cars about the yards by means of a steel cable that passed over a drum near the engine. The drum was put in motion by means of a lever, pressing it against the friction blocks which were turned by the engine. There were also two drums used at the main engine near the top of the mine, to raise and lower cars in the coal shaft. These drums were like large iron wheels 8 feet in diameter and 4 feet wide at the rim. Each drum was composed of four sections bolted together, each of which was a half circle eight feet across at the widest part, two feet across at the rim and weighing about 1,250 pounds. Spokes ran from the rim to the hub, and from the outside of the rim extended a sharp flange. The company desired to install new drums in the engine house and on the day in question, Davenport and others were engaged under Watts, a foreman, in removing the sections of the old ones, and in the prosecution of this work the small engine was used.’ The large engine room was a short distance north of the room in which the small engine was situated and each had doors opening to the east. In moving the sections of the drum from the large engine room a cable was run from the small engine in a northeasterly direction to a pulley on a post set east of the door of the large engine room and from thence through the door of the latter room and attached to the section of the drum about to be moved. In order to give directions to the engineer operating the small engine, the foreman in charge of the work stood near the east door of the large engine room and by motions signalled to a man standing at the east end of the small engine room, and the latter in turn, signalled to the engineer when to start and stop his engine. In the manner indicated, two of the sections of the dram had been pulled out of the engine house to the desired place and a third one had been drawn out over the ground to a short distance beyond the door. In moving this section the cable had been attached to the middle of the semi-circle and the section was drawn flat upon the ground with the hub or center furthest from the pulley. The flange cut into the ground and caused difficulty in moving the section so it was decided to turn the section up upon the rim and haul it like a sled. With this in view, the cable was released from the rim and extended back across the section to the hub, it being expected that when the power was applied to the cable it would pull the section up so it would stand on the rim. After the cable was so attached and the power applied, it was found that the engine did not exert enough force to pull it up. The foreman thereupon ordered the three men who were assisting in the work, to take hold of the section and help raise it when the power should be again applied. In obedience to the order two of the men went to the southwest part or corner of the section, while Davenport went to the northwest corner. The foreman who stood west of Davenport, then gave the signal to start the power to the man near the small engine room and he in turn conveyed it to the engineer. The power having been applied, the cable, with the assistance of the three men, pulled the section nearly upon its rim, when it suddenly turned or swung around on its side, striking Davenport on the head, knocking him down and inflicting upon him severe and permanent injuries.

The negligence charged in the four counts of the declaration was that the cable in question was improperly attached to the section of the drum, so that it would not raise the section and would render the work of the servants engaged about it dangerous; that defendant failed to instruct the engineer as to the manner or extent to which the section of the drum should be elevated or pulled, or to adopt necessary means or signals by or through which he could inform the engineer when and in what manner and to what extent the engineer should elevate or pull the section; that Davenport took hold- of the drum in obedience to the order of his foreman, and the latter thereupon negligently and carelessly caused the drum to be pulled against him by means of the engine and cable; that Davenport was without experience and skill in the performance of the work in which he was engaged and unable to appreciate the risk or danger, and the defendant in disregard of his safety, ordered him to assist in lifting the drum without warning him of the risk and danger in so doing, and also failed to instruct him how to perform said work in a reasonably safe and secure manner.

The only question for our determination is whether the proofs presented a case which should have been submitted to the jury under proper instructions as to the law, applicable to the facts; If there was any evidence which, with all its reasonable inference and intendment, fairly tends to prove the plaintiff’s case, a peremptory instruction in favor of the defendant should not have been given. Chicago City Ry. Co. v. Lannon, 212 Ill. 477; Rowe v. Taylorville Elec. Co., 213 Ill. 318.

Plaintiff in error was acting directly under the command of his foreman. It turned out that the manner in which the wheel was being raised was dangerous. This danger may have arisen from the manner in which the cable was attached to the hub, from the speed with which the power was applied to the cable in raising the section, or from other causes. Whether Davenport knew of the danger or could, by the exercise of reasonable care, have ascertained it and whether the foreman knew of it or should in the exercise of reasonable care have known it, and whether under all the circumstances of the case, the injuries to plaintiff in^ error were caused by one of the hazards incident to his employment, were all questions of fact which should have been submitted to a jury. It was for the jury, not the court, to say whether under the circumstances, the foreman was or was not guilty of negligence in causing the cable to be attached to the section of the wheel or drum in the manner in which it was, and whether he was guilty of further negligence in not establishing a system of signals by which the power applied by the engineer to the cable, could be regulated so as to make it move with greater or less speed, as might be desired, or whether he was guilty of negligence in not warning Davenport of the danger about to be incurred by him.

We are of opinion the court below erred in not submitting the case to the jury for their determination of the facts involved and for that reason the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    St. Louis Stearns Auto Company, Appellee, v. E. C. Singers et al., Appellants.

      Corporations—when demurrer to plea of nul tiel corporation properly sustained. In an action by a corporation to collect notes, a demurrer to a plea of nul tiel corporation is properly sustained where such plea alleges that plaintiff cannot maintain the action because its charter was revoked on March 1, 1911, before the notes became due, for failure to comply with the statute requiring it to file with the secretary of state its annual report and statement of capital stock and to designate an officer on whom service could be had; since such plea does not state that plaintiff was not reinstated as a corporation before the action as provided by the act of 1901, § 7, and does present a defense to the action, since under the act of 1901, § 3, the Secretary of State is not authorized to absolutely forfeit charters of corporations in default in not filing certain reports, and under the Corporation Act, § 10, all corporations organized under such act whose powers have expired shall continue their corporate capacity for two years for the purpose of collecting debts due them.

      Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bernbeuteb, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Jay F. Vickers, for appellant.
    C. E. Chamberlain, for appellee; Barthel, Farmer & Klingel, of counsel.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought this suit in assumpsit to the April Term, 1912, of the Circuit Court of St. Clair county, against appellants to collect four promissory notes, which were set out in the declaration in Jiaec verba. Each note was for the sum of $100, dated January 26, 1911, payable to the order of appellee, signed by appellants E. C. Singers and C. W. Thompson and indorsed by East St. Louis Publishing Company, also an appellant. The notes were respectively due and payable on the fifth days of April, May, June and July, 1911.

Appellants filed among other pleas, that of nul tiel corporation. Appellee demurred to this plea and the demurrer was sustained by the court. Thereupon appellants withdrew their other pleas and elected to abide by their plea of nul tiel corporation. The court then entered judgment against appellants for the amount due on the notes and costs. The only error assigned by appellants is that the court erred in sustaining the demurrer to said plea.

Appellants’ plea of nul tiel corporation alleged that appellee was a corporation organized under the laws of the state of Illinois for profit; that it was not a railroad' or telegraph company nor an insurance, banking or money loaning business; that the merchandise for which the suit was brought, was sold to appellants and bought within the state of Illinois, since January 1, 1912; that appellee after having organized as a corporation, as provided by statute, became and was entitled to carry on the business provided for by its charter; that tip to March 1, 1911, appellee was in good standing but that on and after said date, appellee’s charter was revoked and canceled for failure to comply with the statute of the state; that said notes sued on were given while appellee’s charter was alive but at the time the notes became payable by their own recital, there was no such corporation in existence for appellant to pay said notes to; that appellee had not, as required by statute filed with the secretary of state, its annual report and statement of capital stock, represented in Illinois, nor designated an officer on whom service could be had; that by reason thereof and by virtue of the statute in such case made and provided, appellee could not maintain its aforesaid action.

If this plea be taken most strongly against the pleader, as is the rule, then it does not technically state matters which would constitute a complete bar to appellee’s suit. While it states that on and after the first day of March, appellee’s charter was revoked and canceled for its failure to comply with the statute, yet it does not state that at the time suit was brought, appellee was not possessed of all the rights of a corporation under the lease. Section 7 of the Act of 1901 requiring corporations to make annual reports to the secretary of state and providing for the cancellation of articles of incorporation for failure to do so, provides, that any corporation pursuing an active business under its charter, failing to make said report at the time provided by law, may at any time within one year from such default, be reinstated upon certain conditions therein named. Non constat, but that appellee may have been "reinstated as a corporation and designated an officer on whom service could be had before this suit was brought. But apart from that question, a reading of the plea in question shows that the matters therein contained do not present a defense to appellee’s action. Section 2 of the act above referred to provides, that “every incorporated company other than railroad, banking, building and loan, and insurance companies, religious corporations and corporations not organized for pecuniary profit, existing by virtue of any general or special law of this state or hereafter organized by virtue of any law of this state, shall annually, between the first day of February and the first day of March, report to the secretary of state, the location of its principal office in this state” and certain other facts pertaining to the corporation named in the statute and provides for the payment of a filing-fee. It also further provides that “the secretary of state shall in no case, receive or file said report until said fee is paid and a failure to make said report and pay said fee, shall be prima facie evidence that said corporation is out of business and shall work a forfeiture of the charter of such corporation. And it is hereby made the duty of the secretary of state, to enter upon the records of his office, as soon as practicable after default in making such report, the cancellation of the charter of all corporations failing to make said report at the time and in the manner herein provided.”

In People v. Rose, 207 Ill. 352, it is said in the course of the opinion: “The purpose of this statute further is to require evidence once each year that the corporation is exercising the powers granted, and its failure to make such proof is made prima facie evidence of non-user. The thing that works a forfeiture of the corporation is the fact of non-user, which can be finally determined only by a court of competent jurisdiction. * * * The effect of the act is simply to make a failure to report, as required, prima facie evidence, and the clause providing that the failure to report and pay the fee therefor shall be prima facie evidence that said corporation is out of business, and shall work a forfeiture of the charter of such corporation,’ was merely intended to be a statement of the effect of a condition, namely, non-user, of which condition the failure is made prima facie evidence.” The conclusion reached by the court in that case was that the statute should be construed “not as a law authorizing the Secretary of State to declare absolute forfeitures of the charters of defaulting corporations, but as merely establishing a new rule of evidence against these artificial persons.”

The case of Henssler v. Wiese Drug Co., 133 Ill. App. 539, was an action of assumpsit, where the common law counts were filed. Among other pleas were two which alleged the cancellation of the charter of the drug company by the secretary of state, for failure to file the annual report required by law. In reference to these pleas the court used the following language: “The effect of the averments of the second and third special pleas is, that the appellee corporation has ceased to be a corporation through nonuser. This, as we have seen, can only be availed of by the state in a direct proceeding to forfeit appellee’s charter, and its interposition by appellant as a defense here is in the nature of a collateral attack, which the law does not permit.”

The Appellate Court for the second district of this state speaking by Mr. Justice Dibell, in the case of Gilmer Creamery Ass’n v. Quentin, 142 Ill. App. 448, which was a suit brought by the corporation to recover rent claimed to be due it under a lease, said: “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. * * * '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 non-user of which the public can avail in a direct proceeding to oust the corporation of its franchise.”

Attention should also be called, as bearing upon the question before us, to section 10 of the statute concerning corporations, which provides that “all corporations organized under this law, whose powers may have expired by limitation or otherwise, shall continue their corporate capacity during the term of two years for the purpose only of collecting the debts due said corporation and selling and conveying the property and effects thereof.”

In Spreyne v. Garfield Lodge No. 1, 117 Ill. App. 253, the corporation sued in an action of debt upon a bond and recovered a judgment. The plea upon which the case was tried was nul tiel corporation. It is stated in the opinion that it had been assigned as error that the court below did not permit appellant to show the failure of appellee to file its annual reports in pursuance to law and the court upon that question made the following holding: “The ruling of the court was correct for three reasons: Assuming that its charter had been canceled, appellee had still the right to sue for debts owing it under section 10 of the General Incorporation Act. Whether it had forfeited its charter was not a question which appellant could raise. Even had he the right, he could not exercise it in this collateral proceeding. * * * Furthermore, the failure of appellee to file annual reports as required by the foregoing act would not of itself work a forfeiture of its charter, but is simply prima facie evidence of nonuser which may be availed of by the People in a proceeding to forfeit the charter.”

From what is above said we have concluded that the court below did not err in sustaining appellee’s demurrer to the plea of nul tiel corporation and the judgment is accordingly affirmed.

'Affirmed.


text:
    W. A. Pearl, Appellee, v. Thad King et al., Appellants.
    Roads and bridges—when commissioners not personally Halle. Highway commissioners are not personally liable to one whose horse was injured because of defects in the highway, on the ground of wilful neglect of their duty to repair the road, where their funds are expended, and one of their number, after notice of the defects, in good faith repairs the road about a week before the accident by placing poles, brush and dirt which are subsequently washed out, in the mud hole where the accident occurred.
    Appeal from the Circuit Court of Franklin county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed.
    Opinion filed March 10, 1913.
    Thomas J. Layman and William B. Johnson, for appellants.
    W. H. IT art and Mooneyham & Seeber, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

On May 31, 1912, appellee, while proceeding along a public highway, crossing what are known as the Big Muddy bottoms in Barren township in Franklin county, Illinois, drove into a mud hole, from which his horse had great difficulty in extricating itself. About two weeks later, the horse died and appellee after-wards brought suit before a police magistrate of said county against appellants, .who were commissioners of highways of said township, to recover the value of his horse; He claimed that the death of the horse resulted from injuries received in getting out of the mud hole and that appellants were liable for its value by reason of their wilful neglect of duty in not repairing the road at that place. There was a jury trial before the justice of the peace and also in the Circuit Court, to which appeal was afterwards taken and in both instances, the verdict of the jury and the judgment which followed, were in favor of appellee.

There appears from the record to have been no controversy as to the facts in the case and the question presented is whether these facts established such a case as entitled appellee to a recovery against appellants who were sued as individuals and not as commissioners. In the north part of said township, as it appeared from the proofs, there was a low marshy tract of land, called Big Muddy bottoms. Across these bottoms and the Big Muddy Biver, which gave its name to the vicinity, was a public highway running east and west, of which appellants, as highway commissioners, had charge. In times of high water, this road was often overflowed by the waters of the river and was hard to keep in repair. The spring of 1912 was very wet and the use of the road at that time caused three or more mud holes to be formed, which interfered with travel. The commissioners were notified by the postal authorities, that the mud holes must be "fixed, because the road was being used as a mail route. Two days after the notice was received, on May 25, 1912, appellant King undertook the work of repairing the road across the bottoms. Two of the mud holes were in á measure bridged with planks, but when the one in question was reached, the planks had been all used and the commissioner and the overseer working with him, did not know where they could get any more, so they laid poles in it, cut some fine brush, piled it in on top and then covered all with dirt, leaving it in a fair condition for travel. A day or two later however, a very heavy rain came washing the dirt through the brush and partly destroying the effect of the work which had been done. During the week following the making of the repairs, King visited the place and found the bottoms under water. By May 31, when appellee drove his horse into the mud hole, it had again gotten into a bad condition.

It is contended by appellee, that at the time of the accident and prior thereto, the defendants, as commissioners, had sufficient funds in their hands to make .the necessary repairs to the highway in question and that they wilfully refused to do so, although they were advised of its condition; that the repairing attempted by them was done in such a way as to make the crossing dangerous to the public. The briefs and arguments on both sides- of the case are largely devoted to the question, whether or not the commissioners of highways may be made personally liable for injuries caused by a wilful failure on their part to perform their duties in repairing a defective highway, where there .is money in their hands belonging to the proper fund which can-be used for that purpose. This question does not appear to have been entirely settled in this state, but whatever the rule may be, it is not essential to discuss it here for the reason that the. facts in the case do not warrant a recovery.

Henry Eoberts, one of the commissioners and treasurer of the board,' testified that the amount received by him from May 7 to May 31, 1912, together with what he already had on hand, made a total of $2,354.38 for the township road and bridge fund; that some 75 per cent, of this amount was received in orders, and that there were orders outstanding so that all the funds of the district were in this manner already disposed of. Notwithstanding the condition of the funds, however, the commissioner King proceeded to remedy the defects in the road almost immediately after be was notified to do so, with such means as he had at hand, in the manner which appeared to him to be best.

In Nagle v. Wakey, 161 Ill. 387, it is said: “Even if it is proper to call the act of repairing a highway or bridge ministerial, it is a duty which unquestionably involves the exercise of judgment and discretion as to time, method and means, and is readily distinguishable from such ministerial duty as merely involves the following of specific directions and instructions.” But counsel for appellee, while admitting that commissioners under such circumstances, must exercise their best judgment, say that they should not be permitted to act at their pleasure and that the conduct of the commissioners in this case was in accordance with their pleasure rather than with their best judgment. The commissioner who made the repairs, stated that he did so in good faith with the intention of placing the road in condition to be used for traffic and there is nothing in the proofs which would appear to question his good faith. It is true that while the facts in the case are not disputed, conflicting opinions were expressed by witnesses as to whether the commissioners had used the best means available for making the repairs. In this connection it was also shown that after the accident in question occurred, the road was repaired in the same way that the commissioner attempted to fix the mud hole in question, and was then in good condition.

In Nagle v. Wakey, supra, it is further said, “we do not think that the commissioners, who in good faith and to the best of their ability have expended the means at their command where they seemed to them most needed, can be called upon to justify their judgment to the satisfaction of a jury at the peril of their savings.”

If in a suit brought against them for damages, occasioned by a wilful failure on their part to perform their duties, highway commissioners must sustain their judgment as to the best means of repairing a road by the weight of the evidence, few if any men possessed of any property, would be willing to imperil it by voluntarily accepting the office of commissioner with its attendant hazards.

We find as facts in this case that the defendants, through one of their number, attempted in good faith to repair the road in question, in accordance with their duties as commissioners of highways and that there is no evidence tending to show any wilful violation of such duty. The judgment of the court below will accordingly be reversed. . Reversed.


author: Mr. Justice Higbeb

text:
    Ellen Goen, Administratrix, Appellee, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    1. Death—who entitled to damages. In an action to recover for wrongful death under the provision in the federal statutes relating to carriers engaged in interstate commerce the intestate’s mother is not entitled to share in the damages where there is a surviving widow.
    2. Damages—for wrongful death. To entitle the surviving widow to recover more than nominal damages for the death of her husband, it is necessary for her to prove that she received some support or pecuniary aid from him or had reason to believe that she would thereafter receive such.
    3. Settlement—as defense to action for wrongful death. A settlement made by the widow in good faith constitutes a complete defense to a suit to recover for her husband’s wrongful death.
    4. Death—when judgment not warranted l>y the evidence. Where intestate’s mother as administratrix, recovers a judgment for $5,500,00 for the benefit of the widow, the only evidence as to the damage being the testimony of the mother that deceased was a brakeman earning from $50.00 to $60.00 a month and lived with her, the judgment is reversed and remanded.
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    Kramer, Kramer & Campbell and Kagy & Vandervort, for appellant; Edward Barton, of counsel.
    Noleman & Smith and W. F. Bundy, for appellee.
   Mr. Justice Higbeb

delivered the opinion of the court.

The amended declaration on which this case was tried, averred that appellant owned a railroad extending from Vincennes, Indiana, through Illinois to St. Louis, Missouri, and was engaged as a common carrier in carrying commerce by said railroad' from In-. diana to Illinois and Missouri and from Missouri to Illinois, Indiana and elsewhere; that on September 26, 1910, appellee’s intestate, Marvy M. Goen, was employed as a brakeman upon a certain freight train operated on said railroad, by appellant; that said train was then and there used and engaged in the transportation of freight between the several states and territories of the United States and into and through Odin, Marion county, Illinois; that it was then the duty of Goen to assist in the operation of said train as brakeman, which made it necessary for him to ride upon the top of a certain car, while said train was engaged in switching at Odin, Ulinois; that while said car and train were being backed upon a certain side switch and while Goen, in the exercise of due care and caution for his own safety, was riding thereon, to give signals, look out for obstructions and set the brakes when the train had reached the proper place, he signalled the engineer to back up slowly so as to push said train and car further down the switch track and the engineer, without warning, suddenly ran the train and car against another car standing on said switch track, whereby Goen was thrown from the top of the car upon the track in front of it and before he could escape, the car ran over and killed him.

. The declaration further averred that by virtue of the statute of the United States in such case made and provided, a cause of action had accrued to appellee in that behalf; and that said Goen left surviving him Minnie "B. Goen his widow, and Ellen Goen his mother, the administratrix of his estate; that appellee had sustained damages as such administratrix, for the benefit of the surviving widow and next of kin.

Four pleas were filed to this declaration. They were the general issue; a special plea setting up that the widow had signed a release of damages and an acknowledgment of settlement; a special plea alleging that the intestate was a member of the relief department of appellant; that he left no children, hut did leave a widow; that after his death and before suit was commenced, the relief department, paid the widow $1,000, of which sum appellant had contributed the sum of $995, whereby appellant was entitled to a set off to the extent of the sum last mentioned against any amount which might be recovered; and lastly a plea of the statute of limitations. To each of the special pleas a demurrer was sustained and appellant abided by his special pleas and went to trial on the general issue.

As to the facts it appeared that on the day in question one of appellant’s trains made up at Flora, Illinois, and running to Bast St. Louis on which deceased was a brakeman, had in it some freight cars intended for destinations outside of the state. When the train reached Odin, Illinois, where appellant’s tracks cross those of the Illinois Central Bailroad, the train stopped for the purpose of delivering cars to and receiving them from that road. The train was cut in two parts and the engine backed in on what was known as the “house track,” with some thirty cars and while this was being done, Goen, in some way, fell from the car onto the track and was run over and killed. There was a drizzling rain at the time and he had on a long “slicker” water proof coat, that reached to his shoe tops. Appellee’s contention is that while the train was backing in, there was another car standing on the house track and that Goen signalled to the engineer to move the train slowly until that car should be'reached; that the engineer disregarded the signals and backed in at such speed that it struck the car violently, thereby jarring the train so that Goen was thrown from the car on which he was riding and run over.

Appellant however, claims that deceased caught his foot in his coat while getting upon the car or in some other way lost his hold and fell off and the other brakeman seeing him under the car, gave an emergency signal; that the sudden stopping of the train in response to this signal, caused the bumping and jarring of the cars referred to. There was also a controversy as to whether there were any cars received from or destined to points out of the state in that part of the train, which was being backed on the house track at the time Goen was run over.

The trial resulted in a judgment in favor of appellee for $5,500. Quite a number of errors are assigned by appellant and a number of questions are discussed by its counsel as showing reasons why the judgment should be reversed, but as the record stands, it appears to be expedient for us, while we have considered all the questions presented, to discuss in this opinion only one of them.

Section 1 of the statute under which this recovery is sought, provides “that every common carrier, by railroad, while engaged in commerce between any of the several states or territories * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employe; and, if none, then of such employe’s parents; and, if none, then of the next .of Mn dependent upon such employe.”

The declaration in this case averred that said Goen left surviving him a widow and also his mother Ellen Goen, who is the administratrix, and such was the proof. Under the circumstances the recovery could only be for the benefit of the widow, there being no children, and the mother could have no share in it. The only evidence as to the amount of damages which appellee might be entitled to recover, was the testimony of Ellen Goen, the mother of the deceased, who stated that he was a brakeman; that he earned from $50 to $80 a month and that he lived with her. On this evidence alone, the jury were compelled to determine the amount of the pecuniary loss suffered by the widow, by the death of her husband; that the proof was that deceased lived with his mother and there was no evidence that he furnished any support or gave any portion of his earnings to Ms widow. The proof of the death of Goen and that he left a widow, was sufficient to entitle her to nominal damages at least, but it was necessary for her to prove that she received some support or pecuniary aid from her husband or had reason to believe that she would thereafter receive such, before she would be entitled to more than nominal damages. Brennen v. Chicago & Carterville Coal Co., 147 Ill. App. 263. And further, if the evidence should show, as appears to have been claimed by appellant, that a settlement had been had in good faith with the widow and she had released appellant from further damages, such facts would constitute a complete defense to appellee’s suit and there could be no recovery. Under the proofs in tMs case the judgment of $5,500 in favor of appellee, which must be for the benefit of the wife alone, was not warranted and such judgment will therefore be reversed and the cause remanded.

jReversed and remanded.


author: Mu. Justice Higbee

text:
    Charles Reuter, Appellee, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    1. Damages—for overflowing land. Where an embankment constructed by defendant railway causes the overflowing of • plaintiff’s lands, the measures of damages is the fair cash rental value during the time plaintiff is deprived of their use, within the period for which he is entitled to recover.
    2. Damages—when not excessive. Where eighty acres of plaintiff’s land was damaged by overflowing for three years caused by defendant’s embankment, a judgment for $1,100 is held not excessive.

      Appeal from the Circuit Court of St. Clair county; the Hon. Geobge A. Cbow, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Kramer, Kramer & Campbell, for appellant; Edward Bartók, of counsel.
    Louis Klikgel and Louis P. Zerweok, for appellee.
   Mu. Justice Higbee

delivered the opinion of the court.

This was an action brought by Charles Beuter, appellee, against the Baltimore & Ohio Southwestern Railroad Company, to recover damages to certain lands of appellee, situated in St. Clair county, Illinois, alleged to have been occasioned by the railroad embankment of appellant, built along its right of way. There were pleas of the general issue and statute of limitations. A jury was waived and the case tried by the court. The issues were found in favor of appellee and his damages assessed at $1,100.

Appellant contends that the proofs fail to show the overflow was caused by the embankment, and that the amount awarded was in excess of the damages complained of and that the cause of action was barred by the statute of limitations.

The proofs disclose that Silver creek, a natural stream in said county, flows in a southerly direction through what is known as the Silver creek bottom, which is a strip of low land about 1,800 feet wide, where appellant’s railroad embankment and track crosses the same. Appellee owns some 80 acres of land lying in the bottom, a little over two . miles north of appellant’s track. All the land but a few acres lies west of the creek and the bottom is there wider than at appellant’s crossing. There are several roads crossing the bottom between appellee’s land and appellant’s track. About a mile and a quarter south of appellee’s land is a public road, known as the College road. No embankment however, has been thrown np for this road so that it is about on a level with the adjoining land. South of this is the right of way of an electric railway which uses an embankment upon which was formerly the main track of appellant and extends across the bottoms from bluff to bluff. Through this embankment were two openings, one 437 feet wide, where the creek ran and one 165 feet wide near the west bluff. A few hundred feet further south was a public road known as the Lebanon and Vincennes road which was also formed by an embankment, extending from bluff to bluff,* through which there were four openings, one at the creek 129 feet wide, another on the west side 178 feet wide and two smaller ones between, the west one being about opposite the west opening in the embankment on the right of way of the electric line, north of it. A short distance further south is the embankment along the right of way of appellant, which was built in 1901. This embankment is 25 feet high and has only one opening, which is at Silver creek, a distance of some 500 feet from the east bluff and is 403 feet wide. Appellee’s position is, and it was sustained by the proofs, that there was a slough or depression along the west bluff considerably lower than his land lying between it and the creek; that when the water was high, the slough carried a large amount of it and thereby readily drained his land and left it fit for cultivation; that the opening at the west ends of the other embankments permitted the water in the slough to pass through, but that the embankment of appellant, by reason of the fact that it had no opening on the west side of the bottoms, held the water in the slough and caused it to back up upon appellee’s land and remain there longer than it did before, thereby rendering it unfit for cultivation.

Appellant, however, insisted that, at most, the em-. bankment only raised the water from a foot and a half to two feet on the north side of it, and that it was too remote from appellee’s land to affect it; also that said land was wet, soggy and of little use for cultivation before the embankment was constructed.

That appellee has a right to recover in this case, is fully determined by opinions filed by this court in the cases of Bernhardt v. Baltimore & Ohio S. W. R. Co., 165 Ill. App. 408, and Horner v. Baltimore & O. S. W. R. Co., 165 Ill. App. 370. These suits were brought against this appellant by persons owning lands located in the same locality, as those involved in this suit, to recover damages caused by the overflowing of their lands, as a result of the construction of appellee’s embankment above referred to in 1901. By the opinions referred to all the questions involved here, affeeting the right of appellee to re: cover in this suit, are settled in his favor, leaving only the question of the amount of his damages to be reviewed by us. It was determined in the cases referred to that the measure of damages was the fair cash rental value of the lands during the time the owners had been deprived of their use within the period for which they were entitled to recover. Appellee by this suit sought to recover damages only for the years 1907, 1908 and 1909. The proof was that the fair yearly rental value of the land, prior to the building of appellant’s railroad embankment, was1 from $4 to $6 an acre and that since then it would average only about 25 cents an acre. Under this proof we cannot hold that the judgment awarded appellee of $1,100 for his damages for the three years named, was so excessive as to call for a reversal of the case on that account.

The judgment of the court below will be affirmed.

Affirmed.


author: ¥b. Justice Thompson

text:
    First National Bank of Anna, Plaintiff in Error, v. John A. Rusk, Defendant in Error.
    1. Pabtnebship—evidence tending to prove. In assumpsit for money furnished one defendant for the purchase of a car load of berries, which was shipped to another defendant and sold by him, it was shown that the former in numerous transactions had bought and shipped fruits and vegetables to the other and the latter thereupon had sold the shipments and credited the former with one-half of profits and charged him with one-half of losses. Held, that the evidence tended to show partnership liability, and that a verdict should not be directed to the contrary.
    2. Pbactice—directing verdict. In considering a motion to direct a verdict, neither a trial court nor a court of review should weigh the evidence or determine where the preponderance is, or as to the credibility of witnesses, such motion being met by some evidence fairly tending to establish the adverse claim or defense.
    3. Appeals and eerobS1—record not containing all the evidence. Error, assigned in directing a verdict for defendant, is ground for reversal where sufficient evidence is preserved in the record fairly tending to prove a cause of action, notwithstanding the certficate of the trial judge in the bill of exceptions fails to show that all the evidence introduced on the trial is preserved in such record.
    4. Appeals and ebbobs—when all the evidence must 6e preserved. Where a reversal is sought on the ground that the verdict and judgments are manifestly against the evidence, the bill of exceptions must purport to contain all the evidence heard at the trial.
    Error to the Circuit Court of Union county; the Hon William N. Butleb, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    William D. Lyerle, for plaintiff in error.
    James Lingle, for defendant in error. .
   ¥b. Justice Thompson

delivered the opinion of the court.

The principal error assigned on this record, questions the correctness of the instruction of the court which directed a verdict for the defendant John A. Busk.

The suit was in assumpsit brought by the First National Bank of Anna, against John A. Busk and Neely Absher, as partners, on account of money furnished defendant Absher, to pay for a car load of berries bought by Absher, at Anna, Illinois, and shipped to Busk at Chicago, Illinois, who sold them on the market.

The bank sued Busk and Absher jointly, claiming that they were partners in the fruit and general produce business, carried on in the vicinity of Anna, in the name of Absher.

The declaration contained the common counts only. Defendant Absher was defaulted. Defendant Busk, filed the general issue and also a special plea, denying joint liability.

The cause was tried by the court and jury and at the close of the plaintiff’s evidence, defendant Busk, by his attorney, moved the court to direct a verdict for him on his plea of nonjoinder, the motion was allowed and the jury returned a verdict for the defendant Busk as directed.

Defendant in error contends that the judgment of the trial court should be affirmed for the following reasons: first, the abstract does not show the exceptions to the rulings of the court; second, the bill of exceptions does not show by the certificate of the trial judge, that all of the evidence introduced on the trial is preserved in the record.

The first objection must fail, for the reason that, an inspection of both the abstract and the record show exceptions were taken to the rulings and judgment of the court.

The second objection would present a more difficult question, if the result here depends on a consideration of all the evidence, as it does in cases where a reversal is sought on the ground that the verdict and judgment is manifestly against the weight of the evidence. In such cases the bill of exceptions must purport to contain all the evidence heard on the trial. This rule is so well established no citation of authority is needed. The question presented on this record however, is, was it error for the trial court to direct a verdict for the defendant at the close of the plaintiff’s evidence. If there was introduced, by the plaintiff, any evidence fairly tending to prove his cause of action, then the weight or sufficiency of such evidence should have been left to the jury to determine by their verdict. This rule of long standing had recent approval in the case of Geiger v. Geiger, 247 Ill. 629, where the court said: “The question presented by such a motion is whether there is any evidence fairly tending to prove the cause of action or fact affirmed. It is not the province of the trial judge, on such motion, to weigh the evidence and determine where the preponderance is. Neither the trial court in the first instance, nor the court of review, has anything to do with the question of the preponderance of the evidence or the credibility of the witnesses when considering this question.” Even though the bill of exceptions in this case could be held insufficient to show that all the evidence heard on the trial was preserved therein, still there can be no doubt that it is sufficient to show and does show there was some evidence tending to establish the fact that a partnership existed between Busk and Absher, as claimed by the plaintiff.

The evidence introduced by the plaintiff showed a number of transactions wherein Absher, at different times bought vegetables and fruit at and in the vicinity of Anna, and shipped them to Busk at Chicago. The goods so bought and shipped were paid for by Absher, giving his personal check on the bank, and when sold by Busk, the amount received by him would be sent to Absher, less one-half of the profit, if any, made on the transaction, and if a loss resulted a statement of the sale and such loss would be forwarded to Absher, showing what his one-half of the loss sustained amounted to.

The plaintiff’s evidence consisted of the testimony of witnesses and documentary evidence in the nature of letters and telegrams, which passed between Busk and Absher.

The defendant Absher testified, “I have known defendant, John A. Busk, four or five years. During the shipping season last summer, I was engaged in the business of buying vegetables and strawberries, for John A. Busk and myself. I bought them and packed and billed them to Busk. When the sale was made, he sent me a statement showing what my half of the profits or loss amounted to. I had arrangements with Busk about the buying of strawberries. Grot letters and telegrams concerning the business.”

The letters and telegrams referred to were offered in evidence. The letters, written by Busk to Absher, in reference to the purchase and sale of berries, contain such expressions as these: “I had to close up the soft berries today, at $1.40, and the small berries yesterday, at $1.35. Had it not been for. those we would not have lost irrespective of the market going against us. Take it easy for a day or two and when the prices warrant us to buy, we will go heavier.” “Please send me the cost of those berries and peas.” “If you had followed my instructions closely at the beginning we would be ahead of the game but as it is we are away behind.” “Please itemize your bill hereafter, so I can tell what the different articles cost.” “Send me a bill of each shipment as quickly as possible.” “The enclosed sale will show a loss but we must not get discouraged but must go easy and watch our chance to get it back.”

One bill or statement sent referred to the loss as follows: “Loss on deal, $63.66, y2 to you $31.83.”,

On a careful consideration of the evidence which the bill of exceptions shows was before the court when the motion to direct a verdict for the defendant was considered we deem the same amply sufficient to require the aid of a jury to pass upon the qr. istion whether or not, there was a partnership existing between Busk and Absher at the time of the transaction out of which this controversy arose, and it was error to direct a verdict for the defendant.

Other questions raised on this record are not discussed in this opinion, since under the view we hold, the case must be reversed and remanded, which is done accordingly.

Reversed and remanded.


author: Mr. Justice Thompson

text:
    Thomas B. Jones, Plaintiff in Error, v. William Bates, Defendant in Error.
    1. Assumpsit—preponderance of evidence. In assumpsit for government levee work, alleged to have been performed at the request of defendant, because of his liability as bondsman for another contractor, who failed to perform such work under his - contract, where such bondsman has collected the estimates, held, that the evidence and circumstances corroborate plaintiff’s claim and justify a verdict and judgment in his favor.
    2. Assumpsit—verdict for less than amount shown due. In assumpsit for work performed under an alleged agreement which would have entitled plaintiff to judgment for $3,553.55, where a verdict is rendered for $1,543.65, and there is no dispute, except as to the whole of the claim, the defendant cannot contend that the verdict is absurd and for less than shown to be due, the plaintiff alone being entitled to complain of such insufficiency.
    Error to the Circuit Court of Massac county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Courtney, TTet.tvt & Helm, for plaintiff in error; Thomas M. Scruggs, of counsel.
    H. A. Evans and C. L. Y. Mulkey, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court. -

This is an action of assumpsit, brought by defendant in error, William Bates, against plaintiff in error, Thomas B. Jones, to recover a sum of money which defendant in error claims is due him for work and labor, done by him for the plaintiff in error, at his request.

The declaration contains only the common counts. A trial by the court and jury resulted in a verdict and judgment for the plaintiff for $1,543.65, and the defendant Jones prosecutes this writ of error.

The only question presented for consideration here is the sufficiency of the evidence to support the verdict and judgment, plaintiff in error urging no other reason and relying on no other error. A close examination of the whole record of the evidence in this case was therefore required and given by this court. The evidence on material points was conflicting and beyond reconciliation. Carefully considered, however, we find the following facts to have been fairly well established by the evidence. A corporation called the Talley-Bates Construction Company entered into a contract with the United States government, to do certain levee repair work on the lower Mississippi river, and to secure the faithful performance of that Contract said corporation executed a bond in favor of the government which is signed by the plaintiff in error, Thomas B. Jones, and one H. T. Bruce, as sureties.

Before the levee work mentioned in the contract was completed by the said construction company the work for some reason was abandoned and the government advertised and relet the contract for the completion of the work. At this reletting, one Henry F. Watkins was the successful bidder for á portion of the work, and the defendant in error William Bates, for another portion. The contract thus secured by Watkins, covered two distinct pieces of work which have been referred to in the evidence as the Williams work and the Sessions work. The Williams work extended from section 26 over 11, to section 28 over 4, and comprised in the neighborhood of 50,000 cubic yards of earth work excavation and filling. For this work the contractor was to receive 15(5 per cubic yard. The Sessions work ran from station 28 over 47 to 29 over 16 and comprised approximately 30,300 cubic yards, for which work he was to receive 19(5 per cubic yard. The technical words and figures “28 over 47” means 47 stations beyond 28 miles from the mouth of White river, and the technical words and figures “29 over 16” mean 16 stations (each station being 100 feet, or 1,600 feet) beyond 29 miles from the mouth of said river. It appears' therefore, that the portion of the levee known as the Sessions work was 2,180 feet long.

The plaintiff in error, Thomas B. Jones and one H. T. Bruce were bondsmen for said Watkins, as surety to the government for the performance of the Watkins contract. The government at the same time it made the contract with said Watkins also made a contract with the defendant in error William Bates, for a portion of the work. The Bates contract covered stations 29 over 48 to 30 over 16; that work being 2,080 feet in length. The section of the work covered by the Bates contract was only a short distance from the work covered by the Watkins contract, .known as the Sessions work. Bates was to receive 19(5 per cubic yard for the work, and he, like Watkins, was required to give bond to the government for the faithful performance of the work. Bates at once commenced the work-under his contract and fully completed it to the satisfaction of the government, on or about the 26th day of October, 1907, and was paid for it by the government.

It appears from the evidence that Watkins did nothing under his contract prior to October 1, 1907, and that he accomplished but little during .that month. It further appears from the evidence that the government engineer in charge of the work on behalf of the United States was one Captain Connor. That Captain Connor had evidently lost faith in the ability of Watkins to carry out his agreement with the government and late in the month of October he engaged the defendant Bates to bring Ms outfit and men over the Sessions work and agreed to pay Bates all the cost of the work he would do and 15% above that cost. Under this arrangement Bates moved on to the Sessions work and worked 4 or 5 days, at the end of which time the arrangement was terminated by Captain Connors. The evidence also shows that while Bates’ outfit was still on the Sessions section of work Watkins went to him and delivered a letter which is as follows:.

“Memphis, Tehh., October 31, 1907. Mr. William Bates,
Memphis, Tenn.
Dear Sir:
I have just received an order from H. F. Watkins to pay you for your outfit at the rate of $750 per month for levee work in the White Biver District and this order will be honored and will be paid from H. F. WatMns estimate for the proper months.
Tours truly,
Wm. D. Cohhor, Capt. Corps or Civil Engineer.
The above for rent of mules, tools and camp outfit. I agree to furnish all labor for same and feed for mules.
H. F. Watkihs.”

It further appears that on the receipt of the letter of Captain Connor followed by the statement or proposition of WatMns that Bates accepted the proposition and with his men entered upon the work. After Bates-had been working under this arrangement a few days he discovered that WatMns’ promise in regard to the feed and pay roll were not and would not be carried out and shortly thereafter Bates went to MempMs to see the plaintiff in error Jones who was bondsman for Watkins in order to'make some definite arrangement by which he could get the compensation provided for under the WatMns’ proposition or contract.

Jones as bondsman for WatMns was being pressed by Captain Connor to see that the work under the Watkins contract was done and had been receiving letters from Captain Connor complaining that Watkins was' not carrying out his contract with the government. The evidence further shows that Bates showed Jones the Connor letter with the Watkins’ supplement and was complaining because Watkins was not furnishing him the feed and supplies in accordance with the proposition in the letter and that he (Bates) did not intend to go on with the work. This was about the 6th of November, 1907. The foregoing state the condition of affairs as they existed up to that date.

Immediately afterwards the contract sued on in this case is claimed by Bates to have been made. Bates testified that he had made up his mind to quit the work under the Watkins’ proposition and he told Jones of his intention. He also testified that Jones requested him to go on with the work and that he (Jones) would pay him 19^ per cubic yard for all the work that he «would do if he would continue. Bates further testified that Jones told him that he was in a position to collect all of Watkins’ estimates, and that if he (Bates) pulled his teams off the work it would leave him in a bad shape, and that he wanted Bates to work for him and not for Watkins or Connor. Defendant in error testified that his father William M. Bates was present when the contract was made and that his father said to him at the time, “Mr. Jones is making you a fair proposition; I think you ought to go ahead and help finish up the work and stay as long as you can off your contract.” That the contract referred to by William M. Bates was one that the defendant in error had with the government in another state. Defendant in error, Bates, states that in the presence of his father he accepted the Jones.proposition and he went to work on the Sessions section of the Watkins’ contract, and notified Captain Connor that he would no longer work under the arrangement set forth in Connor’s letter of October 31, 1907.

This statement as to the contract is corroborated in full and particularly by William M. Bates, father of defendant in error. It is denied however by the plaintiff in error Jones. He admits telling or asking Bates to go ahead with the work but he explains that request by saying, that he told him to go ahead with the work because he (Bates) was under obligation to see that Watkins’ contract was completely performed by reason of the fact that he (Bates) had signed the bond which Watkins had given to Jones for the faithful execution of the contract.

It is not denied that the defendant in error performed the work, and that the number of cubic yards of the work done by him at 190 per cubic yard would amount to $3,553.55. It nowhere appears in the evidence that the defendant in error, Bates, was ever paid for this work either by Watkins, Jones or anyone else. The evidence also shows that Jones obtained from the government all that was paid on the Watkins’ estimates which included the work done by Bates.

Defendant in error, Bates, is corroborated in his claim that he had a contract with Jones to do this work not only by his father, William M. Bates, bnt by other facts and circumstances in the case.

It was for the jury to say, after hearing the whole of the evidence where the truth of the matter lay and by their verdict they have said that the preponderance of the evidence was in favor of the plaintiff in the case, and unless this court can say that such verdict was unjust and manifestly against the weight of the evidence an affirmance of the verdict and judgment should follow.

Plaintiff in error contends that in view of the fact that judgment was for a much less amount than was claimed by plaintiff when there was no dispute except as to the whole of the claim, and contends that if the jury allowed any they should have allowed the whole, and contends that the verdict is absurd and must have been rendered by mistake.

This contention cannot prevail under the well established rule of law that the defendant cannot he heard to object because the amount allowed plaintiff was less than the evidence showed was due him. The plaintiff alone in such case is entitled to complain of the smallness of the verdict.' Heyman v. Heyman, 210 Ill. 524; Reid v. Houston, 20 Ill. App. 48; Starks v. Schlensky, 128 Ill. App. 1.

After full consideration of all the evidence in this case this court cannot say the verdict was manifestly against the weight of the evidence.

In fact the evidence would have supported a verdict for a larger amount.

The trial court committed no error in overruling the motion for new trial- and entering judgment on the verdict and this judgment is accordingly affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. William S. Cutler, and George W. Jackson, Plaintiffs in Error.
    1. Bail—scire facias. A writ of scire facias commanding defendants, against whom a judgment of forfeiture has been entered on a recognizance, “to show cause if any they may or can have why execution should not issue against them” is not erroneous because it uses the word execution.
    2. Bail—execution on judgment of forfeiture. It is only necessary that there he a recognizance of record and judgment of a forfeiture under appropriate averments in the scire facias, to authorize judgment of execution according to the form, force and effect of the recognizance.
    3. Scire facias—sheriff may amend the return. A sheriff may amend his return on a writ of scire facias so as to show the correct date on which he attempted to serve it, leave to amend having been granted by the court after due notice to the defendant.
    Error to the County Court of Effingham county; the Hon. Barnet Overbeck, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.

      Statement fey the Court. On the 14th of January, 1911, W.- S. Cutler, one of the plaintiffs in error entered into a recognizance with the Geo. W. Jackson, as his surety, in the sum of $500, conditioned that he personally be and appear before the County Court of Effingham county, at the next term thereof to be holden at the court house in Effingham on the second Monday of June, A. D. 1911, there to answer to an information which was preferred against him in said County Court, for and concerning the crime of violating the Game Law with which the said W. S. Cutler stood charged in said court, and should not depart thence without leave of said court, and on the third day of February, 1911, said recognizance was filed in the office of the clerk of the County Court of Effingham county and then there became a matter of record.
    At the June Term, 1911, of said County Court, the said plaintiff in error, W. S. Cutler, failed to appear according to the condition of his recognizance and a judgment of forfeiture was entered and a scire facias was ordered to be issued, returnable to the next term of court, against the defendant W. S. Cutler and his surety Geo. W. Jackson, to show cause why the Peopie of the state of Illinois should not have execution upon their said recognizance according to the form, force and effect thereof. On the 17th day of August, 1911, the clerk of said court issued a scire facias on said forfeiture, returnable on the second Monday of November, 1911, and delivered the same to the sheriff, who made the following indorsement thereon: “State of Illinois, Effingham County, ss. I, Matt Faber, Sheriff of said County, do hereby make return to the Court of the fact that the within named W. S. Cutler and Geo. W. Jackson, nor either of them can be found anywhere within my County. November 4th, 1911. Betura 10 cts. Matt Faber, Sheriff of Effingham County, Illinois.”
    And on the 13th day of November, 1911, he handed the scire facias to the county clerk, who filed it of date of November 13, 1911. On the 14th of November, 1911, the plaintiffs in error failed to appear in the County Court and a judgment of forfeiture, entered at the June Term, on forfeited recognizance which was on the docket at the Law Term, November Term, 1911, as No. 22, and on June 13, 1912, defendants in error,filed with the clerk of the County Court of Effingham county, a motion to redocket the case of the People of the State of Illinois v. W. S. Cutler and Geo. W. Jackson—scire facias on forfeited recognizance, for leave to Matt Faber, the sheriff to amend his return on the scire facias. The record shows that on the 18th day of June, 1912, at 9 a. m. the plaintiff in error appeared in the court, by W. A. Bowles and Wright Bros. & Denton, their attorneys, and the court after hearing the motion and the evidence offered by the People in support thereof redocketed the cause and granted leave to the sheriff to amend his return on the scire facias. The record further shows that on the 19th of June, 1912, the sheriff came into court with the scire facias and amended his return, which amendment was in the words and figures as follows :
    “Amendment to Sheriffs Return made by order of the County Court granting leave to amend.
    State of Illinois, ) Effingham County, j
    ss.
    I, Matt Faber, Sheriff of the said County, do hereby make return to the Court of the fact that the within named W. S. Cutler and Geo. W. Jackson nor either of them can be found anywhere within my County. November 9th, A. D. 1911. Return 10 cts.
    Matt Faber,
    Sheriff of Effingham County, Illinois.
    “ And I further certify to the Court that the within writ remained continuously in my possession from the date of its issue until the 13th day of November, A. D. 1911, when I returned the same to the Clerk of the Court who issued the same and he filed it in his office.
    Matt Faber,
    Sheriff of Effingham County, Illinois.”

      William A. Bowles- and James E. Bowles, for plaintiffs in error; Wright Bros. & Denton, of counsel.
    R. C. Harrah, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

Plaintiff in error urges two separate reasons for a reversal of this case.’ First, that the court erred in allowing the sheriff to .amend his return to the writ of scire facias. Second, the scire facias was insufficient in that it required the defendants “to show cause why execution should not issue against them upon the recognizance according to the form, force and effect thereof and of the forfeiture aforesaid. ’ ’

The first objection cannot prevail over the provisions of the statute authorizing such amendments. Hurd’s Revised Statutes of 1909, chap. 7, sec. 4: “All returns by any Sheriff or other officer or by any court or subordinate, tribunal, to any Court may be amended in the manner or form or according to the truth of the matter by the Court to which such return shall be made in its discretion as well before as after judgment. ’ ’

Due notice was given to defendants of the intended application to the court for leave to the sheriff to amend his return and on the hearing of the application the court in its discretion permitted the sheriff to amend his return in accordance with the truth of the matter and unless this court can see there was an abuse of such discretion it should not interfere.

The sheriff’s return as first made, on the writ, showed that up to the 4th day of November, 1911, the defendants had not - been found in his county. The writ was filed with the clerk on the 13th of November, 1911, and the sheriff on the application to amend his return testified that the writ remained in his possession until the day it was filed with the clerk and that from the 4th of November, to the 13th of November, he was unable to find the defendants in his county.

There was no dispute of the fact and the amendment allowed simply stated the truth of the matter as shown hy the evidence and therefore' the court did not err in allowing the amendment.

The second objection challenges the sufficiency of the writ of scire facias. The specific objection made is that the writ is void because the word “execution” is used in the writ instead of the word “judgment.”

That part of the writ complained of wherein the wrong word is claimed to have been used is as follows: “then and there to show cause if any they may or can have why execution should not issue against them upon the aforesaid recognizance according to the form, force and effect thereof and of the forfeiture aforesaid and have you then and there this writ with a return of your doings thereon as the law directs.”

The language used in this writ is identical with that employed in the writ of scire facias, which was not only held sufficient but referred to a model of correctness in the case of Gingrich v. People, 34 Ill. 449.

In the case of Landis v. People, 39 Ill. 79, it was held that the awarding of an execution was technically more accurate than the rendition of a judgment.

In Wheeler v. People, 39 Ill. 430, the writ of scire facias commanded defendants to “show cause why execution should not be had against them for the amount of the recognizance.”

The approved practice in this state only requires that there be a recognizance of record and judgment of a forfeiture under appropriate averments in the scire facias, to authorize judgment of execution according to the form, force and effect of the recognizance. Kepley v. People, 123 Ill. 367.

The scire facias was clearly sufficient and finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    City of Granite City, Plaintiff in Error, v. Charles Ritchie, Defendant in Error.
    1. Pees and salaries—cleric of city court. Where there is no dispute about the number of days of service, a clerk of a city court elected in March, 1910, and immediately entering upon his duties is entitled to $6 a day under the Act of May 10, 1901, fixing the fees, and the Act of June 10, 1911, which states the fees shall be paid by the city.
    2. Pees and salaries—cleric of city court. Where plaintiff, elected clerk of city court in March, 1910, sues to recover per diem fees, he may invoke the Act of June 10, 1911, stating that such fees shall be paid by the city, since this act is not in violation of the constitutional provision which prohibits the increase or diminution of the fees, salary or compensation of municipal officers during their term of office.
    Error to the City Court of Granite City; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Harry Faulkner, for plaintiff in error.
    M. E. Sullivan, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

This suit was brought by defendant in error to recover from plaintiff in error for services which he claims he rendered to plaintiff in error, as clerk of the city court of Granite City.

Defendant in error was elected clerk of said court in March, 1910, and immediately entered upon the duties of his office and continued to perform the same up to and after the bringing of this suit. Defendant in error claims he served as such clerk for forty-five days and is entitled to recover six dollars per day for each day of such service.

No question is raised on this record of the election of defendant in error, nor of the number of days of service rendered by him.

The plaintiff in error opposes the claim on the ground, that the law, in relation to compensation for clerks of city courts which was in force at the timé of defendant in error’s election and which provided that clerks of city courts should be allowed the same fees as clerks of circuit courts, was inoperative, because the law failed to state by whom the payment should be made, and that the amendatory act relating' to this subject could not apply, because it would be retroactive in its effect.

The act in reference to courts of record in cities, approved May 10, 1901, contained the following, to-wit: “There shall be elected, in like manner as judges are elected, for each of such courts a clerk who shall hold his office for a term of four years, and until his successor shall be elected and qualified.. He shall be commissioned, have the same powers, perform the same duties, be subject to the same liabilities, and be entitled to like fees as are now, or may hereafter, from time to time, be provided by law in regard to circuit clerks, in the county in which said city may be situated.”

The act in reference to the fees of clerks of circuit courts, approved, June 10,1909, provided as following, to-wit: “That the clerks of the Circuit Court in counties of the first and second class shall receive and be allowed at [as] a per diem fee for attendance upon said courts the sum of six dollars per day, and the clerks of the probate courts in counties of the second class shall be allowed the same per diem fee for attendance upón their respective courts as are now allowed to clerks of the county court and sheriffs in counties of the second class for such service.”

The foregoing law in regard to circuit clerks’ fees was in force at the time defendant in error was elected clerk of the City Court of Granite City.

It will be observed that while the legislature enacted a law allowing to clerks of city courts the same fees that were allowed to clerks of the circuit courts, it failed to state by whom such fees were to be paid.

In order, evidently, to obviate this difficulty and make it clear who was to be required to make the payment of such fees, the legislature on June 10, 1911, passed an amendment to the act of May 10, 1901, which amended act is as follows, to-wit: 61 There shall be elected in like manner as judges are elected, for each of such courts a clerk who shall hold his office for a term of four years, and until his successor shall be elected and qualified. He shall be commissioned, have the same powers, perform the same duties, be subject to the same liabilities, and be entitled to like fees as are now, or- may hereafter, from time to tune, be provided by law in regard to circuit clerks, in the county in which said city may be situated, and a per diem fee of six dollars for attendance upon said court, which per diem fee shall be paid by the city in which said court is situated.”

On the election of defendant in error he became entitled to a per diem fee of six dollars for attendance upon the court under the express provisions of the two acts as above stated in reference to clerks of city courts and circuit court clerks.

The amount defendant in error was entitled to receive was definitely fixed at six dollars per day. Any change in the rate per diem or the number of days on which such per diem should be calculated would be in violation of that constitutional provision, which prohibits the increase or diminution of the fees, salary, or compensation of municipal officers during their term of office.

It is insisted by plaintiff in error that the act of June 10, 1911, which states expressly, that the city in which the court is situated shall pay the per diem fee cannot be invoked by defendant in error to sustain his recovery, since this act became law after defendant in error was elected and therefore comes within the constitutional inhibition. This contention to avail, must rest on one of two things, either the rate per diem or the length of service must be changed, or there will be no violation of the constitution.

The act of June 10, 1911, leaves the per diem and service as it was before, and at the time of the election of defendant in error.

The amendment simply designated the party who should pay, and there being no dispute about the number of days of service, the City Court of Granite City properly entered judgment for the number of days service at the fixed rate of six dollars per day. The other questions raised on the argument are not sufficient to defeat the judgment and the case will therefore be affirmed.

Affirmed.