text:
    The German-American Bank of Bloomington, Appellant, v. Charles F. Owens et al., Appellees.
    1. Pleading—effect of failure to deny averments of replication. Material averments contained in pleas not denied by replication are admitted.
    2. Tbial—when refusal to permit witness to he called not ground for reversal. After both parties have rested, it is a matter resting wholly in the exercise of a sound legal discretion by the court as to whether or not he will permit a witness to be called and a court of review will only disturb the exercise of such discretion when the same has been abused.
    3. Instbuctions—when not error to refuse correct. It is not error for the court to refuse to give an instruction containing an abstract proposition of law, even though such proposition be cor- . rectly stated.
    Judgment by confession. Appeal from the Circuit Court of Be Witt county; the Hon. W. C. Johns, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    F. Y. Hamilton, for appellant; Ingham & Ingham, of counsel.
    C. L. & C. E. Sheldon, and Lemon & Lemon, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellant took judgment by confession in the Circuit Court of DeWitt county against appellees in the sum of $626.11 damages, and costs, alleged to be due by the terms of a promissory note, and warrant of attorney, made by appellees to one William R. White, and by White indorsed to appellant. Upon motion, execution was stayed and appellees were allowed to plead to the merits. There was a trial had before a jury which resulted in a verdict in favor of appellees, upon which the court rendered judgment. This appeal followed.

Besides the general issue appellees filed six special pleas, which set up in substance the following defenses: The first special plea averred that the alleged consideration for which the note sued on was given was a gambling device or confidence game intended to defraud the signers of the note and that the plaintiff took the note from White with full knowledge or notice of the facts; the second special plea averred that such note was given for a gambling device and was without consideration and that plaintiff took it without consideration and without notice; the third special plea was very similar to the first and second and concluded with the averment that plaintiff took the note after maturity and without consideration; the fourth special plea was a plea of set-off in the sum of $1,500 against said William B. White concluding in the same manner as did such third special plea; the fifth special plea averred that said White agreed with appellees to accept from them the notes of two other persons in lieu of the note sued on and that such other notes had been procured, signed by such other persons in the sum of $1,500, which had been accepted by said White under such agreement and that by means thereof the note sued on should have been surrendered to appellees, and that plaintiff took said note sued on after its maturity and without consideration; the sixth special plea averred that the note sued on was given upon a gambling device and was without consideration, and that plaintiff took it with notice of the facts and was not a bona fide holder for- value.

Issue was joined upon the plea of non assumpsit by adding a similiter, while as to the six special pleas appellant filed one replication only. That replication merely alleged that the note sued on was made to said William B. White for the sum of money therein mentioned and not for any unlawful or illegal device and that said note, before maturity, was assigned by White to plaintiff for value and that plaintiff, at the time of the assignment, had no knowledge of the facts set up in said pleas.

It is not necessary to discuss the character of the issue closed by such replication as to the first, second, third and sixth special pleas for the reason that the case was properly disposed of in the Circuit Court under the issues as closed, upon the fourth and fifth special pleas. By averments in said fourth and fifth special pleas the issues were squarely presented that appellees had an offset against William B. White in the sum of $1,500 and also that in pursuance of the terms of an agreement with White he had agreed, to accept, and had accepted, the notes of two other persons in lieu of the note sued on and by force thereof the note sued on became and was the property of "appellees and that appellant had taken the note sued on after it became"due and with-full notice of the facts set up by the said pleas and without paying any consideration therefor.

Appellant by no replication sought to deny or put in issue the set-off averred in the said fourth special plea, nor the agreement, and performance thereof, in discharge of the note sued on, set up in the fifth special plea, but contented itself by putting in-issue only the averments in said pleas that it, appellant, had taken assignment of said note sued on, with notice of the facts, or after its maturity.

To succeed upon the issues so closed upon -said fourth and fifth special pleas it only became necessary for appellees to show that the note sued on had been sold to appellant after it became due. This-issue was purely one of fact for the jury and we are not disposed to hold that the verdict was unwarranted by the evidence. "...

J. H. Brown testified that in August, 1905, fifteen months after the note sued on became due' and while he was in the employment of -White, collecting for him, he received the note in question, for the- purpose of seeing appellees in reference to its payment, from one F. Y. Hamilton, who was then White’s attorney, and that he gave a receipt therefor prepared by Hamilton, in the following words and figures: “Bloomington, Ill. 8-24-1905. Received of F. Y. Hamilton the following notes belonging to William R. White (omitting other notes described) Charles F. Owens and G. M. Cassens, November 19, 1903, six months, Five Hundred Dollars. J. H. Bsown.”

This testimony was the only evidence offered upon that subject and-was sufficient to warrant the jury in finding that the note sued on was in White’s possession and control as his own property fifteen months after its maturity , and was not the property of appellant, bought by it before maturity.

After both sides had rested and the evidence had all been closed, appellant applied to the court for leave to put F. T. Hamilton upon the stand as a witness in its behalf. This request was denied and the action of the court in that respect assigned as error.

Whether or not a witness may be called to the stand after the parties have both rested their case is a matter resting wholly in the exercise of a sound legal discretion by the court, and a court of review will only disturb such action when that discretion has been abused. There is nothing in this record to show that such discretion was improperly used, much less abused.

The record discloses that F. T. Hamilton was present during the trial and took part therein as an attorney and no reason was assigned or stated to the trial court why his testimony was not tendered by appellant before the evidence was closed upon its side.

Appellant has criticised the action of the trial court respecting its refusal to give some instructions offered by appellant and while some of the instructions so offered may have stated abstract propositions of law correctly, yet it is not error to refuse instructions which are mere statements of law in the abstract. The issue presented to the jury under the pleadings was an extremely narrow one, i. e., when, if at all, appellant took the note, and upon that feature of the case the court gave instructions which stated the law fairly and with substantial accuracy.

There is no reversible error in this record and the judgment is affirmed.

'Affirmed.


source: Caselaw Access Project

author: Mr. Justice Ramsay

license: Public Domain

text:
    Amos W. Walker, Administrator, Appellant, v. Michael Montgomery et al., Appellees.

      Decree—when set aside as against the evidence. A decree which is manifestly against the weight of the evidence will he set aside on review.
    Creditor’s hill. Appeal from the Circuit Court of Shelby county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed in part and reversed in part, with directions.
    Opinion filed April 21, 1908.
    E. J. Miller, for appellant.
    George B. Rhoads and W. C. Kelley, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

Amos W. Walker, as administrator of the estate of Joseph Walker, deceased, filed a creditor’s bill to the November term, 1904, of the Circuit Court of Shelby county, to set aside certain conveyances and sales made by Michael Montgomery to .different ones of the appellees, in November, 1900, upon the alleged ground that such conveyances and sales were fraudulent and without consideration and void as to two judgments of said administrator, in which said bill it was prayed that such sales and conveyances be set aside and the property involved be subjected to sale under executions upon said two judgments in the Circuit Court of Shelby county, rendered on the 18th day of December, 1902, both in favor of such administrator, one against Michael Montgomery in the sum of $928.35 and the other against Michael Montgomery and one G. A. Edwards in the sum of $1,822.53. There was a decree against said administrator, dismissing his bill and further praying that if upon a hearing such deeds or any of them could not be set aside because transfer was made to an innocent party, that a personal decree might be rendered, etc. There was a decree against the administrator dismissing his bill for want of equity as to all the defendants named in his bill and this appeal followed.

Appellant, in his argument, makes no claim of error in the action of the trial court in dismissing his bill, except so far as it relates to the charges against Samuel F. Wilson, A. 0. Grays and T. F. Dove, and as the interests of these three parties are separate and distinct from one another we will treat and dispose of them separately.

The evidence shows that in November, 1900, the judgment debtor, Michael Montgomery, sold to Samuel T. Wilson a drug stock in the town of Windsor, Illinois, for the agreed sum of $2,500, of which Wilson at once took possession and has ever since that time retained control. Appellant claims that he had suits against the debtor then pending upon which he afterward obtained the judgments hereinbefore described and that the transfer from the debtor to Wilson was fraudulent in fact and void as to him as a creditor.

While there are some circumstances connected with the sale from Montgomery to Wilson not altogether free from suspicion, yet there is in the record absolutely no evidence that shows or even tends to show that Wilson knew of any indebtedness from Montgomery to appellant at the time of the sale, or that he knew that Montgomery was unable to pay his debts, or that the transfer was made by Montgomery to defeat. his creditors. The drug stock when sold seems to have been an old one, having in it a large quantity of stale and unsalable goods and while it may have been inventoried some weeks before the sale at $4,500 there is no evidence to show what its actual value was at the time of the sale. It is true that Voris, the agent of Montgomery, testified that he told Wilson the stock was worth $3,500 and that its purchase by him would be a “snap,”, yet this is only the expression of an opinion as to the value by one having an interest in making a sale-and was not even claimed to be the opinion of one who stated a value upon'a careful examination. Furthermore, the evidence shows that Wilson was a registered pharmacist and in the drug business and that Montgomery offered the stock to others at the same price that Wilson in fact paid for it; that Wilson refused to "buy the stock "until provision was made for the payment of all unpaid bills against the stock and that when he inquired why the stock was being sold was told by Voris that Montgomery wanted to get out of business. Since the sale Wilson has been in the full and undisputed possession and control of the stock "and Montgomery has had nothing whatever to-do with it. Under such a'-showing it- would'seem clear that no decree ‘could have been made as to- Wilson’s-interest other than the one rendered.

■' -So -far as the controversy relates to the interest of Grays the facts are these: Grays was anxious to buy a house and lot' in- Windsor which Michael Montgomery' owned or had owned and' to which Dove had the title. On November 24, 1902, • a'-warranty deed was made by Dove and wife to Grays for the lot in consideration of $1,550 paid by Grays to Dove.- During the time Grays was' negotiating for the purchase of -the house'- and lot he- met appellant on the street in Windsor and asked him about the title to‘the property. Appellant then said there was litigation- pending that would affect the title.' Grays claims that he understood Walker to say in addition: “Go ahead and buy-it and I will cause you no trouble,” while Walker contends that what he said was: “If-Grays would allow a default to pass against him in the pending suit and would then hold Dove on his- warranty deed I-would not disturb him (Grays)-in the property.” Shortly after that time Walker made and delivered to Grays a statement in writing in'thé words and figures following:.

“Whereas, there is pending in the Circuit Court of the county of Shelby and State of Illinois, a case entitled Amos W. Walker v. T. F. Dove, A. 0. Grays and others; and whereas, I, Amos W. Walker, the plaintiff in this case, desire to protect A. C. Grays against any loss by reason of the above entitled suit; and whereas, I have stated to A. C. Grays verbally at the time suit was entered, and also at the time Grays purchased lots seven and eight in block five, Bruce, Voris & Middleworth Ad. to Windsor, Ills., of T. F. Dove, that I would protect him against loss, and I desire to reduce the same to writing and for and in consideration of a valuable consideration I hereby agree to release any judgments obtained against said A. C. Grays by reason of said suit. I bind myself, my heirs, administrators or assigns to fulfill the above obligation.

Witness my hand and seal this 12th day of April, 1904.

Amos W. Walker. (Seal.)”

This instrument tends to corroborate the testimony of Grays to the effect that Walker stated to Grays verbally at the time suit was entered and also at the time Grays bought the property that he (Walker) would protect him against loss.

It is evident that Grays bought the property relying upon Walker’s statement that he would not interfere with the purchase and it would be most inequitable now to permit appellant to disturb such a right and drive Grays to a defense of that title Or purchase with which he agreed not to interfere when Grays bought the property.

The situation so far as it relates to Dove was very different from that relating to the other appellees. The evidence is clear to the effect that Montgomery was anxious and determined to defeat Walker in the collection of his claim. To this end he disposed or attempted to dispose of all his property and holdings within a very few days and filed or had filed for record five deeds or bills of sale at the same hour on November 23, 1900, two of which ran to Dove himself. The claims of appellant against Montgomery, now in ■ dispute, had been in litigation in some form in the Circuit Court of Shelby county for several years prior to November, 1900, in which court Dove was at the time a practicing lawyer. One of the five conveyances above referred to, in the making of which fraud is specifically charged, was a deed made by Montgomery to Dove for 160 acres of land near Windsor for $2,000 subject to a mortgage of $4,500 and some unpaid taxés.

The undisputed evidence shows that at the time of the transfer from Montgomery to Dove this land was worth $9,600 and that it was sold by Dove for over $9,000 to one Samuel M. Buoy within ninety days after he acquired title from Montgomery. This difference between the price paid by Dove and the actual value of the farm was too great not to arouse the suspicion of Dove as to the motive prompting the sale and was sufficient notice to put Dove upon inquiry.

The evidence further shows that while Grays was negotiating for the purchase of the house and lot in Windsor, the title to which was in Dove’s name, A. T. Collison had a conversation with Dove in respect to the property in which Collison said he came to see him about buying the property, when Dove replied: “See Montgomery about it.”

The evidence also tends to show that at the timé of the making of the deed to the 160-acre farm by Montgomery. to Dove there was a crop of broomcorn on the farm which was received' by Dove and by him in no way accounted for. Dove did not testify or offer to explain his- connection with the transfer of the farm and his silence under the circumstances strengthens the conviction that the conveyance of the farm by Montgomery to Dove was merely colorable and made to defeat the appellant.

Dove contends, however, that no decree can pass in Walker’s favor as administrator upon the ground that the evidence shows, as he claims, that appellant as administrator of the estate of Joseph Walker, deceased, had been discharged by order of the county court prior to the time he filed his bill. This contention cannot avail Dove in this proceeding. When the judgment at law was rendered against Michael Montgomery it was rendered in favor of appellant as administrator. The judgment itself fixed the status of the parties to it and determined the capacity in which appellant’s recovery was had. Under it he, as administrator, had a right to enforce collection and to issue execution in the name in which recovery had been allowed. ■

We hold that Dove was not a purchaser in good faith from Montgomery but took title to the 160-acre farm with notice of the purpose tip on the part of Montgomery to defeat Walker in the collection of his debt and that he, Dove, should therefore be held to account to appellant for the sum remaining, after deducting from the amount received by Dove upon the sale to Buoys the $2,000 Dove paid for the land added to the amount due on the $4,500 mortgage when he accepted the deed from Montgomery and the taxes unpaid on the land when such deed was made, so far as the same shall be required to pay appellant’s judgments and costs.

The decree is affirmed as to all of the appellees except Dove and as to Dove it is reversed with direction to enter a decree in appellant’s favor and against Dove in conformity to the holdings announced herein.

Affirmed in part and reversed in part with directions.


text:
    John Moody, Appellant, v. M. L. Henry et al., Appellees.
    1. Farm Drainage Act—section 11 construed. Section 17 of the Farm Drainage Act does not absolutely require that the commissioners shall employ tile drains; a discretionary power is vested with such commissioners.
    2. Mandamus—when lies to review exercise of discretionary power. A discretionary power conferred upon public officials is subject to review by mandamus where fraud has intervened to induce the exercise of such discretionary power.

      3. Mandamus—what not allegation of fraud in exercise of discretionary power. In a .mandamus proceeding to compel the employment " of tile drains hy commissioners it is not a charge of fraud with respect’ to the exercise of such 'power to' say that the commissioners-, or a majority of them, from selfish "motives, and to avoid the payment, of their just proportion of the cost of the extension of the tile drain across the lands of the -petitioner, refused, without any good and sufficient', reason, and in fraud of the petitioner’s' rights, to change or alter said system; of drainage from ¿n open ditch t'o' a tile drain. " '

      Mandamus. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 19
    L. A. Mills, Hugh Crea, and Hugh W. Housum, for appellant.
    Whitley & Fitzgerald, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellant .filed a petition for. mandamus .in the Circuit Court of Macon county against appellees, as drainage commissioners of Drainage District.No. 1 in the town' of Mt. 'Zion,--in Macon county, to .compel- them to construct, upon and across his premises, a, tile .drain instead of an open ditch as proposed and planned -by the said.commissioners. . A demurrer, was-sustained to the petition, whereupon appellant elected to abide by his petition, and this, appeal followed.

In the petition it was in substance stated that appellant, with others, had organized a farm drainage district under section 76- of chapter ■ 42 .of the Revised Statutes and that the commissioners of highways of Mt. Zion township became drainage commissioners and for a few days acted as such; that on the ninth day of March, 1906, the said commissioners-' adopted the plans of one Loring, an engineer and surveyor, by which a tile drain was to be installed in ah open ditch which had been previously dug and' .excavated by' mutual agreement, through the lands of appellant; that a proper classification of the lands benefited was made, based upon such plans so adopted; that on the tenth day of March, 1906, and one day after such classification had been filed, but before notice had been given to the landowners for a hearing thereon, an election for drainage commissioners was held in said district when appellees were duly elected such commissioners; that they duly qualified as such on the twelfth day of March, 1906; that after their election and qualification appellees prepared another plan for the drainage of such district by force of which, among other changes, they proposed to clean out or enlarge the old ditch that had previously been dug by mutual agreement over .and across the premises of appellant, instead of using tile, across said farm as was contemplated in the original plan; that it was practicable to construct or lay such tile drain upon and across appellant’s prem-. ises as determined by the former commissioners in lieu of such open ditch as determined by the commissioners elected on March 10; that appellees had arbitrarily refused to lay a tile drain in the place of said open ditch to avoid the tax that would otherwise be levied upon their respective lands in such drainage district.and that they had abused their discretion in making such change from.tile to open ditch and that appellant would- suffer loss and damage to his premises from the open ditch which he would not suffer if the tile was installed as originally planned.

The law governing the action of appellees in the premises is found in sections 17 and 76 of the Farm Drainage Act of the Revised Statutes. In .said section 17 it is provided that “Preference shall be given to tile drains whenever these will accomplish the purpose,” and in section 76 it is provided that “These ditches, if open, shall be made tile drains when practicable.”

The main controversy is whether under such sections the commissioners are vested with -any discretion in the premises in determining whether an open ditch or tile should be employed in such work. If they have such discretion then the writ of mandamus will not lie, except in case of fraud in the use of such discretion. People v. Kent, 160 Ill. 655-662; Kelley v. Chicago, 62 Ill. 280-281; Wood v. Strother, 9 Amer. St. Rep. 249.

We think a fair construction of the two sections quoted, which must be construed together, clothes the commissioners with a discretion in the premisés and that we have no right to peremptorily direct them to use tile in the work in controversy. The employment of the words, “preference shall be given to tile” and “open ditches shall be made tile when practicable,” suggests that there may be cases where, in the exercise of a discretion, the commissioners may find that an open ditch will be more serviceable than a tile drain. The legislature in framing the law undoubtedly had in mind the fact that in many instances an open ditch will answer the purpose of a tile drain and at a less cost; that there may be difficulty in laying tile in one piece of land which would not be encountered in another; that the grade, the depth of the cut, the character of the soil and the relative costs of the two are all matters to be taken into consideration in determining whether or not the use of tile is practicable or is preferable to an open ditch. This consideration implies the use of a discretion and its exercise belongs exclusively to the commissioners.

Appellant contends, however, that fraud upon the part of the commissioners is charged in the petition and that on that ground the court has the power to review their acts and the demurrer should have been overruled. The only allegation made in the bill in this respect is to the effect that said appellees, or a majority of them, from selfish motives, and to avoid the payment of their just proportion of the cost of the extension of the tile drain across the lands of appellant refused, without any good and sufficient reason, and in fraud of appellant’s rights, to change or alter .said system of drainage from an open ditch to a tile drain. This is a statement of a mere conclusion upon the part of the pleader. No statement of facts is here attempted from which the court can say, as a matter of law, that if proved appellees are guilty of fraud upon account of which the writ of mandamus should issue. The allegations in the hill upon this subject at most amount merely to saying that appellees are taxpayers in the district and have some personal or pecuniary interest which may to some extent be affected by their own action as commissioners.

Such interest was held in People v. Cooper, 139 Ill. 496, to in no way disqualify them from service as such commissioners, and in no way tends, in our judgment, to show such character of fraud that will warrant the writ of 'mandamus in a case where it should issue for no other reason.

The demurrer to the petition was properly sustained by the trial court and its judgment is affirmed.

Affirmed.


text:
    James O. Priest, Appellee, v. J. Ralph Dodsworth et al., Appellants.
    1. Pleading—when general demurrer to replication properly overruled. If a replication in effect denies the substantial allegations of the plea, a general demurrer is properly overruled even though such replication is subject to the criticism of pleading the evidence.
    2. Pleading—when does not allege valid set-off. Held, that the plea interposed in this action charging a loss by virtue of a compromise of litigation assented to by the party in whose behalf the plea is filed, does not show a valid set-off where it contains no allegations that such party was in anywise overreached in the settlement or that any fraud or dishonesty of any kind was chargeable to the plaintiff.
    Assumpsit. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    F. L. Gregory and R. W. Mills, for appellants.
    J. M. Riggs, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

James O. Priest brought suit in the Circuit Court of Morgan county against J. Ralph Dodsworth and W. C. Dodsworth for a balance alleged to be due upon a promissory note for the principal sum of $4,000. By agreement of the parties a jury was waived and the cause submitted to the court for trial. There was a judgment in favor of Priest in the sum of $1,895.56 and this appeal followed.

It appears from the evidence that Sarah Dodsworth, a widow, about eighty-five years old, living in Morgan county, was the owner of a large amount of valuable real estate near Jacksonville, Illinois, and was also the owner of notes of the value of about $82,000. She had one son, an only child, W. T. Dodsworth, who was twice married. By his former marriage W. T. Dodsworth had three children, J. Ralph Dodsworth, William C. Dodsworth and Prudence Dodsworth, who, after their father’s second marriage, and at the time of the trouble hereinafter mentioned, resided away from the home of their father.

A strife grew up between the father on one side and his three children by his former wife on the other, as to the disposition of Sarah Dodsworth’s property, each one seeking to get control of the property and to influence said Sarah Dodsworth in disposing of it; the father claiming he should have it all while he lived, and his said three children, upon their part, claiming they should have some-part of the property at once, fearing the father might, if he controlled all of it, put it beyond their reach by giving it to his children by his second marriage.

Matters were in this shape when J. Ralph Dodsworth, the oldest of said three children, employed Priest, an attorney, to assist him in his efforts to get control of the notes and to keep the father from getting them. Possession of the notes changed hands two or three times, a power of attorney was given by Sarah Dodsworth to one of the parties and revoked. Litigation followed. There was a replevin suit commenced, also a bill for injunction filed, both afterward dismissed, and a proceeding instituted to have Sarah Dodsworth declared incompetent and for the appointment of a conservator. While this proceeding was pending a settlement between the parties was brought about, as a result of which the appellants and their sister either received property, or were allowed to retain as their own, property they had previously received during the course of their dealings with their father and grandmother, worth approximately $80,-000. It was during the progress of these proceedings which resulted in the settlement above stated that the note in question was made to Priest for his legal services, as he claims, for the principal sum of $4,000. Payments were made and credits given upon the note so that upon the trial there was rendered a judgment for $1,895.56 in favor of appellee as a balance due him upon said note.

Appellants contend that the trial court was in error in overruling a demurrer to what is called appellee’s fourteenth replication to J. Ralph Dodsworth’s first plea. Such first plea was in substance a plea of failure of consideration, alleging that he, J. Ralph Dodsworth, gave to Priest the note sued on, upon the sole condition that said Priest was, as an attorney, to successfully protect said J. Ralph Dodsworth in his possession and ownership of the notes which he had obtained from his grandmother in the sum of $84,000 at a time prior to much of the litigation and when J. Ralph Dodsworth was seeking to hold said notes and prior to the settlement Priest effected between all the parties, and further alleging that through the timidity, negligence and carelessness of said Priest in maintaining J. Ralph Dodsworth’s title to said notes he lost $69,000 of the value thereof by such settlement; wherefore there was a failure of consideration for the note sued on. The replication criticised denied that “the consideration of the note sued on failed by reason of the timidity, negligence and carelessness of the plaintiff as averred in said plea” and there followed such denial a statement of all that had been done by and between the parties interested and by Priest and on behalf of appellants and their sister as hereinbefore • briefly outlined, with the further statement that in the settlement as finally perfected by Priest, said appellants and their sister secured property in their own right, including a piece of land in Greene county, Illinois, which said J. Ralph Dodsworth obtained from his grandmother, worth approximately $90,000. While it may be that a large part of the matter set up in the replication was surplusage and that the pleader, to quite an extent, pleaded his evidence instead of merely denying the failure of consideration as alleged in the plea, yet there could have been no prejudicial error in the action of the court in overruling a general demurrer to the replication as it, in terms, denied the failure of consideration set up in said plea.

Appellants also complain of the action of the court in sustaining a demurrer to said J. Ralph Dodsworth’s third plea. That plea set up in substance that said J. Ralph Dodsworth was possessed of said notes of the value of $84,000 and that he employed Priest to successfully defend him in such possession against all suits that might thereafter- be brought to deprive him of said notes and that said Priest instead of so doing, “timorously sought and wrongfully obtained a compromise whereby he lost $50,000,” etc.

This plea was bad. It pleaded a conclusion merely. Furthermore there was no claim made in the plea that Dodsworth was over-reached in any way in the settlement or that he was not fully competent to understand what he was doing, nor that he did not agree to the settlement as made and all its terms, nor that Priest was dishonest in his actions in making or inducing the settlement. In essence, the averments in the plea amount merely to saying that said J. Ralph Dodsworth settled a law suit under the advice of his attorney, which he now believes hé could have won if he had litigated it to a finish and because he did so settle he wishes to charge his attorney, because of alleged timorous action, with the difference or a part of it, between what he received in settlement and what he thinks he could have recovered if he had made no settlement.

Complaint is also made by appellants to the ruling of the court as to the opening and close of the case and as to where the burden of proof lay. We fail to see how the holdings of the court upon these matters could have prejudiced appellants’ cause.

Appellants opened and closed, in the matter of offering their testimony upon the trial, and in view of the testimony of appellants, themselves, it could matter but little what the court held as to the burden of proof. W. C. Dodsworth testified that J. Ralph Dodsworth was the spokesman and acted as such for the appellants and their sister. J. Ralph Dodsworth testified that “we compromised the thing.” That means that a man, presumed to be of sound mind and mature years with a full appreciation of what "he was doing, settled a law suit under the advice of his lawyer, who is in no way charged with dishonesty, and accepted the result of the settlement. Appellee had the note of appellants upon which payments had been made and if there was any burden resting upon him to show that he was entitled to recover the unpaid balance thereon, appellants,-by their testimony quoted, relieved him of that burden.

Appellants next insist that the finding of the court is not sustained by the evidence. It can serve no good purpose to review the evidence at any considerable length. ít is enough, upon that subject, to say that a bitter feeling had evidently existed for a long time between appellants and their father as to the disposition of the property of Sarah Dodsworth; that for. some time different ones of the relatives had tried to get her property from her and that after several plans and schemes had failed and considerable litigation had resulted, appellants and their sister secured for themselves, through the ■ services of appellee, property worth approximately $80,000 to $90,000. There was evidence that warranted the trial court in finding that Priest was attentive to the work he had to do, honest in his endeavor to serve his clients well, and successful in getting for them property of no inconsiderable value, and in advance of Sarah Dodsworth’s death. The judge who tried the case saw and heard the witnesses who testified, and was better able to judge of their credibility then we are. His holding does not appear to have been against the weight of the evidence, but seems rather to have been in accord therewith.

There is no prejudicial error in the holdings of the court upon the propositions of law submitted. The merits of the case are clearly with appellee and the judgment is affirmed.

Affirmed.


text:
    Judge Trogdon, Appellant, v. Vandalia Railroad Company, Appellee.
    Verdict&emdash;when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Trespass on the case. Appeal from the Circuit Court of Edgar county; the Hon. J. W. Craig, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Stewart W. Kincaid, for appellant.

      Dyas & Dyas, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Judge Trogdon brought suit in the Circuit Court of Edgar county against the Vandalia Railroad Company to recover damages alleged to have been sustained by Trogdon by reason of the negligence and carelessness of the servants of the railroad company in transporting seventy head o'f cattle from East St. Louis, Illinois, to Paris, Illinois, and by reason of the unnecessary and unusual time taken in such transportation, during which time the cattle were unnecessarily kept confined in the cars. There was a trial had before a jury which resulted in a verdict of not guilty. Judgment was rendered upon the verdict and Trogdon appealed.

Appellant has assigned only one error and that is, that the verdict is contrary to the manifest weight of the evidence.

We have carefully considered all the evidence and from such consideration are satisfied that the error is not well assigned. The only question presented was one of fact, and in determining that issue the jury were not unwarranted in returning the verdict they did.

In support of his claim Trogdon offered the testimony of himself and three other witnesses which tended to show appellee’s negligence, while upon the part of appellee there was given the testimony of three witnesses tending to show no negligence upon the part of appellee and the testimony of several other witnesses tending to show that the shipment of cattle was made in the usual manner and within a reasonable time. The issue was narrow and the testimony thereon so conflicting that we cannot say that the verdict is clearly against the weight of the evidence.

The judgment is affirmed.

Affirmed.


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    The People, ex rel. H. H. Biggs, Appellant, v. R. P. Smith, Appellee.

      Counties—power of toará of supervisors to fill vacancy in office of overseer of the poor. A hoard of supervisors of a county has no power to fill a vacancy existing in the office of overseer of the poor for a longer period than its own term of office.

      Quo warranto. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    F. L. Hatch, for appellant; E. S. Smith, of counsel.
    Albert Salzenstein and Edmund Burke, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

An information in "the nature of a quo warranto was filed in the Circuit Court of Sangamon county against R. P. Smith in which it was alleged that Sangamon county was under township organization and that the pauper poor were supported by the county; that Capitol township in said county had more than 4,000 inhabitants and therefore the supervisor of that township was ece-officio overseer of the poor for that township; that R. P. Smith was elected supervisor of said township at the regular election in April, 1906, for the term of two years; that at the meeting of the board of supervisors of Sangamon county, held on April 10,1906, said Smith surrendered his office as overseer of the poor by filing a resignation in the following words

Springfield, Ill., April 10, 1906.

To the Board of Supervisors of Sangamon County:

The undersigned, supervisor of the township of Capitol, in said county, would respectfully request this honorable body to relieve him of the duties of overseer of the poor of Capitol township for his term.

R. P. Smith,

Supervisor at Large, Capitol township.”

That said request was granted by said board and another person was appointed as overseer of the poor for such township for the period of one year, and his salary fixed at $100 per month; that on April 15, 1907, the hoard of supervisors of said county appointed H. H. Biggs as overseer of the poor of said township for the ensuing year and fixed his salary at $100 per month; that Biggs was ready to assume the duties of his office and on April 24, 1907, had demanded of Smith the custody and control of the hooks and papers of the office of the overseer of the poor and that Smith had refused to deliver the same. There was a prayer in the usual form asking that Smith be required to show by what authority he held the office of overseer of the poor, etc.

Smith appeared and filed a plea to the petition in which he averred that on the second day of April, 1907, at the regular township election held in the various townships of Sangamon county, supervisors were elected and that on the ninth day of April, 1907, the members elect and hold over members of the board of supervisors met in regular course and organized as a hoard for the ensuing year; that at such meeting and immediately after such organization, Smith presented a communication to said board of supervisors, which was in the following words, to-wit:

“To the Board of Supervisors of Sangamon county, Illinois:

The undersigned supervisor at large for Capitol Township, in said county, having at the April meeting, 1906, of the then board of supervisors been relieved of the duties of overseer of the poor for said township, respectfully states that he has reassumed and will perform his duties ex-officio overseer of the poor for said township for the now ensuing year.

R. P. Smith,

Supervisor at Large and Ex-Officio Overseer of the Poor in and for Capitol Township, Sangamon County.”

That immediately after such organization of said board he (Smith) resumed the office and duties of overseer of the poor as by law he was required and authorized to do.

To this plea a demurrer was interposed by appellant which was overruled by the court. Appellant elected to stand by its demurrer and this appeal followed.

It is contended by appellant that in his resignation as tendered appellee resigned his office as overseer for his term as supervisor and he was therefore usurping the function of the office of overseer. The Revised Statutes provide that when such a resignation is tendered and accepted the board may name an overseer of the poor for said township and fix his compensation and term of office, which shall not exceed the term of said board.

The term of the board to which appellee tendered his resignation as overseer expired upon the organization of the new board on the ninth day of April, 1907, and with it the term of the overseer named by the board also expired.

The board had no power to name an overseer to hold his office during appellee’s entire term as supervisor and any attempt to do so would have been inoperative beyond the life of the board as then organized. The board that made the appointment in April, 1906, exhausted its power to act by its appointment of an overseer who served through the life of that board, and no resignation was tendered to the board organized on April 9, 1907.

We hold that the resignation as tendered and accepted was for the period of one year only. The trial court properly so held and the judgment is affirmed.

Affirmed.


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    Charles E. Walker, Appellee, v. County of Vermilion, Appellant.
    1. Roads and bbidges—when town may demand aid of county. Sections 13, 14 and 19 of the Road and Bridge Act construed together, provide that whenever a town has levied 40 cents of the 60 cents which section 13 authorizes upon the $100, it is then in position to demand county aid, if it in other respects has met the requirements of the statute,
    2. Roads and bbidges—when county cannot raise question of absence of determination by highway commissioners of necessity for construction of bridge. After a county has entered into a contract which it had power to make for the construction of a bridge, it is no longer in position to set up a technical irregularity in the exercise of that power as against one with whom it has thus dealt.
    3. County—what not defense to action upon contract for construction of bridge. A county cannot defend as against a contract for the construction of a bridge into which it has entered upon the ground that the three supervisors appointed had not filed an itemized statement of the cost of the bridge and had never certified to the county that such bridge had been accepted by them.
    4. County—what contract of, rather than of individual supervisors. Seld, that the contract in suit in this case was one of the county, who was defendant, and not that of the individual supervisors.
    5. County—what not defense to action upon contract for construction of bridge. A county cannot defend as against a contract which it has made for the construction of a bridge upon the ground that the contract price of such bridge was less than the estimated price as fixed by the highway commissioners in their petition to the county board and because the cost of the bridge was not an amount more than 20 cents on each $100 of taxable property as shown by the latest assessment roll.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbbough, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    J. W. Keeslar and W. T. Gunn, for appellant.
    Lawrence T. Allen and O. M. Jones, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee brought suit in the' Circuit Court of Vermilion county against appellant to recover one-half the cost of a bridge alleged to have been built by appellee under a contract with the county board of Vermilion county and the commissioners of highways of Grant township in said county. There was a trial had before the court without a jury and judgment rendered in favor of appellee in the sum of $968.40. The county appealed.

The case was tried upon a stipulation of facts from which it appeared that at the September term, 1904, of the county board of Vermilion county the commissioners of highways of said Grant township presented their petition for,county aid in building a bridge in which the commissioners represented that a bridge and approaches thereto needed to be built over the north fork of the Vermilion river in said town, for the building of which said town was wholly responsible; that the total, cost of building said bridge would be $3,500, which was more than twenty cents on the $100 on the latest assessment roll of said town, and that the levy of the road and bridge tax for the two preceding years in said town was in each year for the full amount of forty cents on each $100 allowed by law for the commissioners of highways to raise, the major part of which was used for ordinary road and bridge purposes; that upon receipt of this petition it was referred by the board to its committee on bridges, who reported thereon at the following December term of the board that they had examined the site and found that the bridge was needed; that there was a good road leading to the bridge from either way which could not be used without a bridge; that upon the making of this report the county board, upon motion, referred the report to the same committee with power to act; that following this action upon the part of the board the said bridge committee met the highway commissioners of said town of Grant and organized for the purpose of awarding a contract for the building of such bridge, and, after having advertised and received bids for the same, on January 12, 1905, made a contract in writing with I. J. Walker to construct such bridge at a cost of $1,828, one-half thereof to be paid by said town of Grant and the other one-half by the county board; that said bridge, together with the cost of the approaches and extras, cost in all $2,916.28, which according to the specifications was to be built under the supervision and inspection of Ira 0. Baker; that for two years prior to the filing of the petition by the highway commissioners the road and bridge tax in Grant township was for the full amount of forty cents on each $100 allowed by law for the commissioners to raise; that said commissioners had appropriated $2,500 to be used for the construction of the said bridge and other bridges in said town; that at the time of the presentation of the petition to the county board there was in the treasury of said township in the road and bridge fund the sum of $4,909.17; that the county board had never appropriated any sum to meet the payment of one-half the expense of the bridge, nor paid anything thereon; that the contract for the construction of the bridge was by I. J. Walker assigned to Charles Walker, the appellee; that after the completion of the bridge said Baker made an itemized statement of the expense of the bridge which was forwarded to the county board upon which said board refused to act; that for the year 1903 the total assessed valuation of said township was $1,583,257; for the year 1904, $1,477,248 and about the same for the year 1905; that the contract between the county and the commissioners on one side and Walker on the other was signed by the county committee as follows: “J. M. Carter, S. W. Claypool, Bridge Committee of Board of Supervisors ; ’ ’ that said bridge had never been accepted by said county board or any bridge committee on the part of said board, or by said three supervisors, and that at the time said bridge was completed said three supervisors were not then in office, their term of office having expired.

Appellant first contends that under the showing made in the stipulation the said town was not in position to demand aid from the county in the construction of the bridge because the commissioners of highways had not, in their petition, stated that they had levied a tax in each of the two preceding years of 100 cents on each $100 assessed valuation, but had levied a tax of only forty cents upon the $100; that sections 13 and 14 of the Eoad and Bridge Act, when construed together with section 19 of said act, required such tgx to have been one hundred cents and not forty cents only upon each $100.

. We do not so interpret those sections. Section 14 has reference to a tax which .the commissioners can levy to meet an emergency or contingency that may • arise making it necessary to levy a tax- in addition to that authorized by section 13, which increased levy of forty cents over the sixty cents allowed by section 13 can only be made with the consent in writing of the board of town auditors and the assessors. Section 13 provides for extending the annual road and bridge tax and for the payment of any outstanding order which, for both such purposes, shall not exceed sixty cents on each one hundred dollars.

Section 19 provides that when the levy of the road and bridge tax for two years last past in said town has been in each year for the full amount of forty cents on each $100 allowed by law for the commissioners to raise, the major part of which is needed for ordinary repair of roads and bridges, the county may be. asked for aid. This does not mean that the town must have levied a tax up to its limit under sections 13 and 14, but that whenever a town has levied forty cents of the sixty cents which section 13 authorizes upon the $100, it is then in position to demand county aid, if it in other respects has met the requirements of the statute.

Appellant next argues that before the highway commissioners can ask aid from the county there must have been a determination by the commissioners that a necessity existed for the construction of the bridge and cites People ex rel. v. Madison County, 125 Ill. 342, a controlling case upon this point. There was a case in mandamus by the commissioners to compel aid and not a suit upon a contract by one who had built a bridge under employment of the county. Under the stipulation made the county board would seem to have treated the statement in the petition of the highway commissioners “that a bridge and approaches thereto needs to be built over the north fork of the Vermilion river,” which was approved by the bridge committee, as conclusive upon this question, and since the engagement upon the part of the county was one which the county board had power to make and did make, and received the benefits thereof, it is in no position to set up a technical irregularity in the exercise of that power as against one with whom it has thus dealt. Badger v. Inlet Drainage District, 141 Ill. 540; County of Coles v. Goehring, 209 Ill. 170; East St. Louis v. East St. Louis Gas Co., 98 Ill. 415; Westbrook v. Middlecoff, 99 Ill. App. 327.

Appellant next contends that the county should not be held to a performance of its contract because the three supervisors appointed had not filed an itemized statement of the cost of the bridge and had never certified to the county board that said bridge had been accepted by them. This argument is without merit in view of the fact that the term of office of such supervisors serving on the bridge committee had expired at the time the bridge was completed. Appellee cannot be held to be in default because the county board failed to appoint or name other supervisors to act instead of those whose term had expired.

Appellant next contends that the contract sued on is not the contract of the county but is the contract of the three supervisors in their individual capacity and cites Sheridan v. Pease, 93 Ill. App. 219, in support of that claim. In that case Pease as sheriff brought suit on a replevin bond which Sheridan as agent on behalf of the Standard Brass Works as principal had signed and sealed in his individual capacity, and it was held that as to Pease the bond was the bond of Sheridan and not the bond of the Standard Brass Works. The case is very different from the one at bar. There suit was brought by the obligee named in the bond and not by or against the party whom Sheridan, as agent, represented. All that can be claimed for that case in the matter now before us is that Walker at his election could have maintained suit against the supervisors in their individual capacity, upon the contract. The right was one personal to Walker and cannot avail the county board whose agents the supervisors were in all they did in connection with the contract.

It is also urged by appellant that no recovery should be had against the county because the contract price of the bridge was less than the estimated price as fixed by the highway commissioners in their petition to the county board and because the cost of the bridge was not in amount more than twenty cents on each $100 of taxable property as shown by the latest assessment roll. The former of these questions was before this court in People ex rel. Commissioners of Highways v. Board of Supervisors, 71 Ill. App. 348, where it was h'eld that the estimated cost and not the contract price determined the right to county aid. Whether or not the commissioners of highways had truthfully represented the levy of a tax or taxes in their town and have truthfully represented that the costs of the proposed bridge will exceed twenty cents on the $100 in their petition presented to the board, are matters which the board had power to determine from an investigation made by the members or from their own knowledge. Macon County v. The People, 121 Ill. 616-622. This investigation, in our judgment, should have been made by the board before it authorized its bridge committee to make a contract with appellee to do the work sued for.

There is no reversible error in this record and the judgment is affirmed.

Affirmed.


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    John J. Cowden et al., Appellants, v. Trustees of Schools, Appellees.
    Principal and surety—what not defense to action upon official dond. In an action upon the bond of a township treasurer, the sureties cannot interpose by way of defense that reports made by such treasurer from time to time, of moneys in his hands, were false.
    Bill in equity. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Livingston & Bach, for appellants.
    Rowell & Lindley, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

On the twenty-fifth day of September, 1903, appellants entered into bond in the penal sum of $10,000 as sureties for Robert S. McIntyre, township treasurer of township 23 north, range 2 east, in McLean county, which bond ran to the trustees of schools of said township and was conditioned that said township treasurer should faithfully discharge the duties of his office and should deliver and pay over to his successor in office all securities, other properties, etc., that should come into his hands as such treasurer. McIntyre was his own successor as such treasurer and upon the making of said bond assumed, or continued in, the control of the affairs and property pertaining and belonging to said office up to the fifth day of December, 1906, when he died. After McIntyre’s death William M. Beeves was appointed treasurer of said township and demand was made for the funds and other property in McIntyre’s custody or control as treasurer at the time of his death, when it was ascertained that McIntyre was a defaulter and suit upon the bond was brought against appellants in the Circuit Court of McLean county to recover the amount of the deficit.

While the suit at law was pending and before any trial thereof was had appellants presented their bill ■in equity to the chancellor of said Circuit Court in which they sought to enjoin the prosecution of said suit at. law, to which bill appellee demurred. Upon a hearing the demurrer was sustained, the bill dismissed for want of equity and appellants stood by their bill and appealed.

The bill, in substance, charged' that McIntyre had held his office from 1880 up to the time of his death on December 5, 1906; that he had been re-elected every two years and that he had given bond previously to the giving of the bond in suit every two years from the date of his first election in 1880; that the sureties on said former bonds were financially responsible; that during said time from 1880 to 1903 said McIntyre had made annual reports as required by law showing balances in his hands from time to time and that although the reports of McIntyre made during the time covered by the bond of appellants showed cash on hand as well as notes in large sums for which recovery was sought in the suit at law, yet such reports were false and fraudulent in this, that such cash and notes were not, in fact, on hand, but that default had been made during his previous service as such treasurer and not after September 25, 1903; that the sureties upon bonds previously given by said McIntyre should be held for such defalcations; and that an injunction should be awarded to restrain further prosecution of said suit at law.

Appellants now contend that although the said treasurer made and returned reports pursuant to law during his term of office covered by appellants’ bond, in which he reported that the moneys and securities now sought to be recovered were in his hands as such treasurer at such times, yet they should be allowed to show that such reports of the treasurer were not in fact faithfully made.

This, in our judgment, public policy forbids. Appellants as sureties for McIntyre were bound that he would faithfully discharge the duties of his office and that his reports should be honestly made and the affairs of his office honestly administered, and it would be clearly inconsistent to allow those, who are so bound for the faithful conduct of their principal, to escape liability by showing that the official reports of such principal were not faithful acts but were false instead.

In Fogarty v. Ream, 100 Ill. 366, where a bill was filed by one who was a surety upon the bond of a guardian, to have the reports of such guardian set aside as fraudulent as to the complainant, in the bill, and it was sought to prove that the guardian did not have in his possession or control the trust funds at the time complainant became his surety, but had previously wasted the same, it was held that such action was not proper and that the policy of the law would not permit complainant to make proof of such matters.

In Cawley v. The People, 95 Ill. 250, it was held that where a county treasurer, after his re-election, made an official report showing a balance of county funds in his hands, the act being within his official duty, his sureties were concluded from showing that the amount so shown was not actually in the treasury at the time the report was made.

The same doctrine in substance was held in Chicago v. Gage, 95 Ill. 593; Morley v. Town of Metamora, 78 Ill. 394; Roper v. Sangamon Lodge, 91 Ill. 518.

The demurrer to the hill of complaint was properly sustained and the order dismissing the bill is affirmed.

Affirmed.


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    William Lanum, Appellant, v. W. D. Patterson et al., Appellees.
    1. Attorney and client—what not within authority of former. An attorney employed to enter judgment upon a judgment note has no authority to alter the same and an alteration by him does not bind his client unless authorized or ratified by such client.
    2. Alteration of instruments—when altered instrument not void. A material alteration of a judgment note by the attorney of the plaintiff made without authority, is a mere spoliation but does not render the note void; the same remains enforceable according to its original provisions.
    Judgment by confession. Appeal from the Circuit Court of Moultrie county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    Walter Eden and Eden & Martin, for appellant.
    E. J. Miller and Harbaugh & Thompson, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

On March 4, 1907, William Lanum obtained a judgment by confession in vacation of the Circuit Court of Moultrie county against W. D. Patterson, Leona Patterson and E. P. Woodruff, upon a note for the principal sum of $3,000, accompanied by a warrant of attorney. On the 21st day of March, 1907, and during the March term, 1907, of said court, on motion of Patterson et al., the judgment confessed was set aside and leave given to plead. Issues were closed upon pleas denying under oath the making of the note involved and denying joint liability and such issues- submitted to a jury who returned a verdict in favor of appellees. There was a judgment upon the verdict against Lanum and he appealed.

On January 29, 1907, Lanum loaned Patterson the sum of $3,000 and took his note for that sum with a warrant of attorney to confess a judgment thereon with Leona Patterson and E. P. Woodruff as sureties, due in one year from its date, with interest at seven per cent. The note and warrant of attorney were drawn and prepared by George A. Sentel, an attorney of Moultrie county. It was claimed by appellees and so testified by them, that when the note and warrant of attorney were signed by them there was a provision in the warrant of attorney for $25 attorney’s fees, in case judgment was entered thereon.

Patterson testified that when he. delivered the note in Sentel’s office no change had been made in the amount of attorney’s fees, while Lanum testified that when he received the note from Sentel the amount of attorney’s fees had been increased to $100 by erasing the printed words “twenty-five” and writing with a pen the words “one hundred” in their stead. Sentel did not testify. Patterson testified further that when he, after he had secured the signatures of Leona Dv Patterson and E. P. Woodruff to the note, returned the same to Sentel’s office, Lanum and Sentel who were together -in Sentel’s office, requested him, Patterson, to leave the room for a short time, that he did so and remained away for several minutes; that he returned and concluded the transaction; that the note and warrant of attorney were thus in the hands of Sentel and Lanum in his, Patterson’s absence, for a short time after he gave it to Sentel and before the transaction was fully consummated and the note delivered to Lanum.

On March 4, 1907, at the suggestion of Woodruff, Lanum gave the note to Sentel to enter judgment thereon, and Sentel prepared the necessary papers and entered a judgment by confession against the signers, when it developed that the attorney’s fees in the warrant of attorney had been increased from $100, as it is claimed by Lanum they stood when he received the note from Sentel, to $400. Lanum further testified that when he gave the note to Sentel to enter judgment thereon it was in the identical shape in every respect in which he received it, and that he knew nothing of any change, from $100 to $400 until after the judgment had been entered, and never gave any consent to the alteration of said note.

As to the change from $100 to $400 the evidence would seem to show that the change was made while the note was in Sentel’s control after he received the note from Lánum and before fie entered judgment thereon, and without Lanum’s knowledge or consent.

Under such circumstances there were two distinct issues presented for determination:

First. Was the alteration made from $25 to $100 in Sentel’s office as claimed by Patterson, when it is alleged by him that Lanum and Sentel were together and had the note in their possession, when Patterson was requested to leave the room and did so, after Patterson had delivered the note to Sentel, but before the deal was fully closed and the note delivered to Lanum. If it was, then, as Lanum was present and would be presumed to. have known of the same, the alteration was both material and fraudulent, and one that rendered the note and warrant of attorney void. If it was possible to determine from this record that it was upon this issue alone the jury returned the verdict for appellees, it could be argued that the issue was one of fact only, and that the verdict should not be disturbed, but such cannot be done.

Second. Was the change from $100 to $400 made by Sentel while the note was in his hands for the purpose of entering judgment thereon without Lanum’s knowledge or consent, and when he, Sentel, had no authority in the premises, except that implied by reason of his employment as an attorney to procure judgment, such an alteration as will, of itself, render the note void, or was it a spoliation merely.

In Tiedeman on Commercial Paper, sec. 392, the ■author says: “In the United States the rule prevails that a spoliation has no effect upon the liability of the parties to the instrument so long as the original words remain legible and free from doubt.”

In 2 Am. & Eng. Enc. Law, 2nd ed. 214, it is said: ‘ ‘ The decisions in the United States are unanimous in declaring the law to be that a material alteration of an instrument by a stranger to the contract without the privity of the grantee or .obligee, is merely a spoliation and even though made without the consent of the party bound by the writing, does not prevent a recovery on the instrument as it read before the alteration, provided only its original tenor can be clearly shown.”

In a note (B) to Burgess v. Blake, (Ala.) 86 Amer. State Rep. 78, the writer says: “We think the rule as indicated by reason and authority is that an alteration of a written instrument by a stranger, without authority, does not render such an instrument void.” “An alteration by a stranger is not, strictly speaking, an alteration at all, but merely a spoliation.”

In Camp v. Shaw, 52 Ill. App. 249, the court say: “Alterations in a will or other instrument, if made by a stranger to it, are but spoliations and do not operate to avoid the will or instrument mutilated or defaced.”

In Kingan & Co. v. Silvers, (Ind.) 37 N. E. Rep. 414, the court say: “The rule that now prevails as we gather it from the decided cases is: ‘That the alteration of a note or written instrument in a material matter by a stranger is but a spoliation and does not destroy it and a recovery may be had upon it in its original condition.’ ”

In Bledsoe v. Graves, 4 Scam. 383, where an indorsement upon a promissory note was altered, the court held that as the erasure was by a third person, without the knowledge of the plaintiff, it conld affect the rights of neither party any more than if it had been occasioned by accident.

Clark in his work on Contracts, see. 284, says: “An alteration by a stranger, without the knowledge or consent of the parties, is a mere spoliation ■ and does not discharge the contract.”

Sentel conld do no act that would bind Lanum except within the scope of his authority. In this respect, in the absence of authority, to do or act for Lanum, his position was that of a mere stranger to the-note. 2 Amer. & Eng. Enc. Law, 2nd ed. 217. The powers of an attorney are to be determined in a-large measure from the purpose and objects of his employment; he has -an implied authority to do anything necessarily - incidental to the discharge of the purpose for which he was retained, but beyond this his powers cease. 3 Amer. & Eng. Enc. Law, 2nd ed. 345.

In a note on pages 104 and 105 of Burgess v. Blake, 86 Amer. State Rep., the author says: “Perhaps the only rule of any general application here possible is that the law will not ordinarily imply an authority from the holder of an instrument; making another an agent for the purpose of altering such instrument,” and “This is in accordance with the rule of law that fraud will never be presumed, and this' rule is, in the cases of alterations of writing, reinforced by the fact that such act constitutes in most cases not merely a fraud but a crime as well. ’ ’

In Patterson v. Higgins, 58 Ill. App. 268-271, in a case where it was claimed that notes had been changed after their execution so as to make them draw seven instead of six per cent, interest, the court, after finding that the change was not made by the holder of the note or with his knowledge, says: “Certainly there can be no presumption that an agent is authorized to make a fraudulent alteration of commercial'paper. ”

In Hunt v. Gray, (N. J.) 10 Amer. Rep. 232-236, the plaintiff employed John T. Hunt to sell a horse for him; in that transaction Hunt took a note upon sale of the horse, which he showed to plaintiff, and then took it to a bank to have it discounted, where, to induce the bank to purchase it, he made an alteration in it, which was admitted to be material. The court found that from the circumstances an authority to alter the note could not be inferred, and said: “It was not an act that properly appertained to the transaction to which the agency related. It could not have been within the contemplation of either the principal or the agent, at the time of the creation of the agency. Consequently the act must be regarded as though done by a stranger without the concurrence express or implied of the plaintiff.”

In White Sewing Machine Co. v. Dakin, 86 Mich. 581, it was held that an alteration made in a bond, after its execution, by an agent of the obligee, without authority, would not operate to invalidate the bond, but was an act of spoliation only.

Under the evidence and authorities we are of the ■opinion that the change from $100 to $400 was- a spoliation and that it does not of itself render the note void. Sentel was employed by Lanum to enter judgment by confession upon the note and warrant of attorney and his employment for that purpose alone, and without its being shown that Lanum was a party to such change, cannot be held to give to the attorney any authority to destroy the character of the instrument as a note, by altering it.

Appellees in their argument seem to rest their case, so far as it relates to the alteration from $100 to $400, upon the theory that as Lanum voluntarily delivered the note to Sentel for the purpose of placing it in judgment, the act of Sentel was the act of Lanum. This theory is erroneous under the authorities. An attorney who receives a note merely to obtain judgment thereon has no authority by implication from his client to make any alteration therein.

In this view of the case the trial court was in error in refusing to give for Lanum any instructions which state the law as above outlined. Two instructions were tendered by appellant which the court refused to give, that read as follows-:

“The court instructs the jury that if you believe from the evidence that Lanum’s attorneys employed by and who brought the suit and took judgment on the note altered the note, without the knowledge or consent of Lanum, and without being authorized by him to make the alteration, such alteration would not relieve the defendants from liability on the note for the amount included therein when the note was executed. ’ ’

“The court instructs the jury, that if you believe from the evidence that the defendants executed the note offered in evidence, with an attorney fee of $100 in the warrant of attorney, and that if some person, not the plaintiff, changed the amount of the attorney’s fee in the warrant to $400 without the knowledge or consent of the plaintiff, your verdict should be for the plaintiff for the amount of the note and interest.”

These instructions, in substance, stated a correct principle of law, which should have been given in some form. No other instruction was given which correctly stated the law upon this subject, and the refusal to so instruct the jury was reversible error.

Appellees’ eighth instruction told the jury that if Lanum employed Sentel to procure judgment upon the note and power of attorney and delivered the note to him for that purpose, and while the note was rightfully in the possession and control of Sentel, alterations were made therein, and the attorney’s fees changed and that Sentel had knowledge of such change before the note was placed in judgment, then such knowledge upon the part of Sentel would be knowledge upon the part of Lanum; but this would not be knowledge imputed in law to Lanum if Sentel or some other person fraudulently or accidentally made' such change without the knowledge or consent of Lanum. This instruction was erroneous. It either told the jury that Sentel’s knowledge was Lanum’s knowledge, without regard to whether or not Sentel was acting within the scope of his authority, or with Lanum’s consent, or else it was in itself inconsistent and contradictory, and could not have failed to confuse and mislead the jury. •

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Maud R. Bonnell, Appellant, v. A. E. Campbell et al., Appellees.
    Appeals and ebbobs&emdash;what not final judgment. An order which merely awards costs to a defendant, with nothing more, is not a final judgment.
    Trespass on the case. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the November term, 1907.
    Appeal dismissed.
    Opinion filed April 21, 1908.
    Edward J. Sweeney, for appellant.
    John Fuller and Lemon & Lemon, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

Apellant brought suit in the Circuit Court of DeWitt county against appellees to recover damages for an alleged defamation of the character of appellant. A demurrer was sustained to an additional count as amended upon which the court entered a judgment for costs against appellant and she appealed.

The declaration consisted of one original count and one amended additional count. Appellees filed a demurrer to both original and amended additional counts and upon a hearing of such demurrer, as shown by the bill of exceptions, an order was entered in the following words: “Court thereupon sustained defendants’ demurrer to said additional count as amended, to the ruling of the court in sustaining said demurrer the plaintiff, by her counsel, then and there excepted. Whereupon the plaintiff, by her counsel, then and there elected to abide by her additional count as amended and the court thereupon rendered judgment against the plaintiff upon said demurrer and for costs of suit, to the ruling of the court in entering such judgment the plaintiff, by her counsel, then and there excepted,” etc.

There was no final judgment in this case from which an appeal could be taken. Not only was the demurrer to the original count left wholly undisposed of but there was no judgment that plaintiff take nothing by her case. An order which merely awards costs to the defendant, with nothing more, is not a final judgment. To have that effect it must terminate and completely dispose of the action. If, for the defendant, the judgment to be final must state that he is dismissed without day, or that the plaintiff take nothing by his suit. Phillips v. Severson, 113 Ill. App. 496; Dunkelbarger v. McFerren, 134 Ill. App. 395. The order entered in the case at bar does not profess to determine or end the suit of plaintiff and is not a final judgment.

The appeal will be dismissed for want of jurisdiction, at the cost of appellant, with leave to her to withdraw the record and move for judgment in proper form in the Circuit Court.

Appeal dismissed.


text:
    Isaac S. Storm, Administrator, Appellant, v. Robert M. Brown et al, Appellees.

      .Decree—when not disturbed as against the evidence. A decree will not be disturbed as against the evidence where such evidence was heard by the chancellor, unless the errors with respect to the findings of fact are clear and palpable.

      Foreclosure. Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Dove & Dove, for appellant.
    Chafee & Chew, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

Isaac S. Storm, as administrator of the estate of Alta S. Caris, deceased, appealed from a decree of the Circuit Court of Shelby county, refusing to allow a foreclosure of a mortgage made by Robert M. Brown and wife to one R. L. Caris, and finding that the mortgage indebtedness had been fully paid.

Storm, as administrator, contended that the indebtedness, represented by a note of $400, dated January 12,1893, due in one year from its date, made by Brown and wife to R. L. Caris, and by R. L. Caris assigned to his wife, Alta S. Caris, secured by the mortgage sought to be foreclosed, was wholly due and unpaid, while upon the part of appellees it was claimed that such note had been fully paid and in equity the mortgage should have been released.

The evidence shows that on July 26, 1894, Brown paid $125 to R. L. Caris and took his receipt therefor in which it was stated that the payment was “to be credited on note and mortgage of $400;” that on October 8, 1894, Brown and wife conveyed a part of the mortgaged premises to one J. N. Storm; that J. N. Storm and wife, on February 7, 1901, made a note for $300 to Alta S. Caris secured by a mortgage of the same date, which said mortgage was released of record by said Alta S. Caris on February 18, 1903, and payment acknowledged of the debt secured by the mortgage.

The only question presented is whether or not these payments of $125 and $300 were payments upon the mortgage which appellant sought to foreclose. The issue was purely one of fact. The trial court saw the witnesses and heard them testify and we are not disposed to hold that the finding of the court that the mortgage debt involved had been fully paid was unwarranted.

There was some evidence heard upon the trial/that was incompetent, but without considering that, there was enough competent evidence to warrant the court in holding that the mortgage debt had been paid. William H. Eagan testified that he had a conversation with Alta S. Garis shortly after she had released the Storm mortgage of $300 while he was acting as attorney for J. 1ST. Storm, in which he said to her that Storm wanted the Brown mortgage released; that it seemed that it had been paid oft; that Storm had paid $300 of it and probably had a receipt for the other $100. To this deceased replied to him that her husband had led her to believe that there was $100 back on it. The witness Eagan further said: “I told her Storm had made a mortgage for the balance due on the $400 mortgage, and she said if there was a receipt out for $100 she had never seen it. She made no claim whatever except for the $100, i. e., it may have been a little more, $110 or $125.” The testimony of Eagan was undisputed and seems to show fairly that all Alta S. Garis then claimed was a balance of about $100 .

In view of the fact that the evidence clearly shows that B. L. Garis, husband of Alta S. Garis, had, up to the time of his death, attended to all the business in connection with the loan involved, had for several years loaned money for his wife and received payments for her; that he receipted to Brown in July, 1894, for $125 which was to be credited on note and mortgage of $400; that there was no evidence whatever showing any other mortgage of $400, made by Brown to either E. L. Garis or his wife, Alta S. Garis, we are not disposed to disturb the holdings of the chancellor.

The evidence was heard by the chancellor and to authorize a reversal as to a finding of fact the error must be clear and palpable. Mayrand v. Mayrand, 194 Ill. 49; Elmsted v. Nicholson, 186 Ill. 584.

The decree is affirmed.

Affirmed.


text:
    William Lanum, Appellant, v. W. D. Patterson, Appellee.
    1. Alteration of instruments—when bill of complaint does not state case for equitable interposition. A bill which seeks relief against the enforcement of an alleged altered instrument, does not state a case of equitable cognizance if it fails to set up the facts relating to the alleged alteration so that the court can determine whether or not the alteration was innocently or mistakenly made, or was .a wilful one, or was one that amounted to a spoliation merely.
    2. Injunctions—what solicitor’s fees should not be awarded upon dissolution. Upon dissolution of an injunction, it is only proper to award solicitor’s fees by way of damages for those services rendered by the defendant’s solicitor in securing a dissolution of the injunction upon the motion to dissolve.
    Bill in equity. Appeal from the Circuit Court of Moultrie county; the Hon. W. C. Johns, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed April 21, 1908.
    Walter Eden and Eden & Martin, for appellant.
    E. J. Miller, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellant filed a bill in equity in the Circuit Court of Moultrie county against appellee et al. upon which an injunction was ordered. Patterson appeared and entered his motion to dissolve the injunction on the ground that there was no equity in the bill, which motion was sustained and the injunction dissolved. The court treated the motion to dissolve as a demurrer to the bill, dismissed the bill at complainant’s .costs and, upon suggestion by appellee, assessed appellee’s damages against the appellant at the sum of ■ $150. This appeal followed.

In the bill appellant in substance alleged that on January 29, 1907, at the solicitation of one George A. Sentel, he loaned to appellee the sum of $3,000 and took his judgment note therefor with his wife, Leona Patterson, and one E. P. Woodruff as sureties thereon, due in twelve months at seven per cent, interest, with a warrant of attorney in the usual form providing for $100 attorney’s fees; that as he was unacquainted with Patterson’s financial condition he requested Patterson to make a financial statement, which he did at the time the note was made, showing that he had property in his own. right and above all debts, etc., of the value of $14,800; that as a matter of fact said property statement was false in largely over estimating the value of Patterson’s property; that Patterson had no property, so far as appellant could ascertain, over and above his exemptions; that on March 2, 1907, he was requested by said Woodruff to enter up judgment on said note and warrant of attorney because the indebtedness of Patterson was so much larger than he had represented it to be; that appellant, acting upon said request, on March 4, 1907, instructed said Sentel to take judgment by confession upon said note, which was accordingly done at once; that defendants to said judgment had entered a motion to vacate said judgment and- for leave to plead, which motion the court allowed and stayed the execution; that the defendants in said suit at law had filed a plea of not guilty, verified, and said E. P. Woodruff had filed a plea denying joint liability; that it was the claim of the said defendants in said suit at law and each of them that after they executed the said note and warrant of attorney the amount mentioned therein as attorney’s fees had been altered or raised from $25 to $400 which latter-sum was. included in the judgment which the court had set aside; that as a matter of. fact the warrant of attorney provided for $100 instead of $25 when the note was delivered by Patterson to appellant; that appellant did not change or alter said note or warrant of attorney, nor authorize any one else to do so, nor was it done by or with his consent; that if the claim of said Woodruff and Leona Patterson that they were only sureties upon said note and that said note has been altered, be allowed, they would not be liable upon said note in a court of law; that said Leona Patterson had no property and said Woodruff is financially insolvent, so that appellant fears and verily believes that if said note was declared void in a court of law because of said alteration, appellant would lose the entire sum loaned to Patterson. In said bill appellant claimed that said note should be modified or construed- to express the true intent of the parties; that Patterson should be estopped from mating any defense to the note because he induced the mating of the loan by a fraudulent property statement and that in a legal sense there had been no alteration of the said note whatever; that if the amount of the attorney’s fees had been changed as claimed by defendants in the suit at law, it was a spoliation and not an alteration thereof and that this distinction between the alleged alteration and spoliation was one which it would be impossible for appellant to urge in a court of law.

There was a prayer asking the court to construe and reform the note and restore it to its original condition; that the alteration in said note, if any, be corrected; that the defendants in said suits at law be restrained from defending against said claim or suit at law until all matters charged in the said bill should be fully heard and determined.

In the bill there 'was no attempt made by appellant to show how, or by whom the change was made, so that as against appellee he would be entitled to have the instrument reformed or corrected. No claim is made that the note, from the time it was drawn until judgment was entered thereon, was not continuously in the possession of appellant and those acting for him, nor that it was ever in the hands of Patterson or that Patterson or any other of the signers was in' any way chargeable with its alteration. Appellant does not attempt to set up the facts relating to the alteration so that the court can determine that the alteration was innocently and mistakenly made, or was a wilful one, or was one that amounted to a spoliation merely, nor does appellant aver in his bill that he, appellant, was ignorant in regard to the facts and circumstances relating to the allegations.

Appellant does not set up any claim or right that cannot be fully determined in a suit at law and the trial court committed no error in dismissing such bill.

Appellant next insists that even if the bill was properly dismissed the trial court committed error in assessing solicitor’s fees in the sum of $150 against him, upon the dissolution of the injunction.

E. J. Miller, acting as attorney for Patterson, upon the hearing of the motion to assess damages, testified to all that he had done in connection with both suits, the one at law as well as the one in equity; that upon motion he had the judgment by confession opened and filed pleas therein; that one character of pleas was filed by Patterson and another character of pleas was filed by Leona Patterson and Woodruff, and that for the services rendered he was to be paid what they were reasonably worth. J. E. Jennings, an attorney, was then asked to state what would be the usual and customary fee for that kind of services and answered by saying $150, considering the benefit to Patterson. R. D. Meeker, another attorney, testified that the services performed, as shown in the testimony of Miller, were reasonably worth $150.

Upon this evidence the court allowed Patterson $150 as damages. This was error, as Miller’s statement of services rendered covered what he had done in the case at law, for which appellant would not be liable upon motion to dissolve. Patterson was entitled to damages for only those services rendered by his attorney in securing a dissolution of the injunction upon his motion to dissolve. Landis v. Wolf, 206 Ill. 392; Milligan v. Nelson, 188 Ill. 139.

That part of the decree of the trial court dissolving the injunction is affirmed, but so much of the decree as relates to allowing damages to Patterson is reversed, with directions to the Circuit Court to take such further steps in this case as shall be consistent with the holdings herein announced.

Affirmed in part and reversed in part and remanded with directions.