text:
    Paul Bonato, Administrator, Appellee, v. Peabody Coal Company, Appellant.
    1. Master and servant—duty to furnish safe place to worlc. The master is only required to exercise reasonable care to furnish his servant with a reasonably safe place in which to work.
    2. Master and servant—right to assume that place to work is safe. A servant primarily has the right to assume that the place to which he has been assigned is safe and he is not called upon to inspect his surroundings with care; and he may recover of his master for an injury resulting from a danger which only inspection and investigation would have disclosed.
    3. Master and servant—what risks are not assumed. A servant does not assume risks or dangers due to a failure of his master to exercise reasonable care to furnish him with a reasonably safe place to work, unless he has notice that the place provided for him to work is not reasonably safe, or unless such unsafe condition is so ' apparent as to have been obvious to a person of ordinary intelligence, in which event the servant is chargeable with knowledge of such condition and the risk and danger arising therefrom and assumes all risk of injury from the defect by voluntarily continuing in the service.
    4. Instructions—must not ignore material issue. An instruction which directs a verdict, if certain facts are facts, is erroneous if it omits and ignores any material, issue in the cause which pertains to the right of recovery.
    5. Appeals and errors—when cost of additional abstract taxed

      to appellant. If the abstract filed by the appellant is incomplete and defective, the cost of an additional abstract filed by the. appellee will be taxed against the appellant.
    Action on the case for death caused by alleged 'wrongful act. Appeal from the Circuit Court of Montgomery county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    Lane & Cooper and W. G. Webster, for appellant; Arthur W. Underwood, of counsel.
    Williamson & Snell and Jett & Kinder, for appellee.
   Me. Justice Puterbaugh

delivered the opinion of the court.

This, is an action on the case brought by Paul Bonato, administrator of the estate of Nicola Bonato, deceased, to recover 'damages resulting to the widow and children of Nicola Bonato by reason of his death, which it is alleged was caused by the negligence of appellant. ■

The first count of the declaration charges, in substance, that on February 12, 1906, the defendant was engaged in sinking a coal shaft; that in the prosecution of such work it employed divers servants in excavating the earth and other material necessary in sinking the shaft; that it was the duty of the defendant to use ordinary care to so conduct its work as to furnish its servants thus engaged, a reasonably safe place in which to do their work and to keep such place in safe condition during the time its servants were engaged in excavating said shaft, but that it neglected said duty and permitted said shaft to become unsafe and danger- ■ ous by permitting large quantities of ice to form and remain in said shaft near its mouth, which was likely at any time to break away, fall upon and injure those engaged in excavating said shaft; that plaintiff’s intestate was a servant of defendant in excavating said shaft at a distance of sixty feet below the mouth .thereof, and that a portion of the ice so negligently permitted to form at the mouth of the shaft became detached and fell and struck him, thereby so. injuring him that he thereafter died.

The second count charges, in substance, that large quantities of ice had formed within the shaft near its top, which was likely to become detached, as the defendant then and there well knew or could by reasonable diligence have ascertained; that it was the duty of defendant to remove said ice and secure the same from falling, before ordering its servants to engage in the work of excavating said shaft at the bottom thereof; that defendant neglected said duty and negligently ordered certain of its servants to go to the bottom of the shaft at a depth of 60 feet, and engage in excavating the same without removing the ice or having secured the same so that it would not fall in the shaft; that deceased was a servant of and was ordered by defendant to work as aforesaid; that while engaged in excavating at the bottom of the shaft by the direction of the defendant a large quantity of ice so formed ,in the shaft near its mouth or top, not being secured from falling, broke away, fell into the shaft and struck and killed him. Both counts allege that the deceased was in the exercise of due care at the time he was injured. The plaintiff recovered a judgment for $2,500, to reverse which this appeal is prayed.

The evidence adduced by the plaintiff shows that the defendant owned a tract of land near Nokomis, Montgomery county, upon which it was engaged in sinking a main shaft, and about three hundred feet distant therefrom an escapement shaft. Work had begun upon the escapement shaft in July, 1905, and continued until some time in January, 1906. The sinking of the main shaft was begun on December 12,1905, before the work of sinking the escapement shaft had been finished. On February 12, 1906, the main shaft was about 115 feet deep, twenty-eight feet long and ten feet wide in the clear and was divided perpendicularly into three compartments; the two hoisting compartments being each about ten feet by twelve feet, separated by bunting, set fourteen inches apart and open at the top. The third compartment was an air chamber two feet wide extending across the entire west end of the shaft and separated from the hoisting compartments by buntings and planks and closed at the top. The air-chainber was connected with a fan by a hood. Around the fan a house was built having one door, which was used for the purpose of entering to take care of the machinery of the fan. There was evidence tending to show that when the air-chamber had been bratticed down about 100 feet it was impossible without the aid of lights to see up into it from the bottom a greater distance than fifteen feet. The men engaged in sinking the main shaft worked in three shifts of eight hours each, each shift having from eight to ten men. Each shift was under the direction and control of a shift boss. The entire work was under the direction of a superintendent who was generally upon the ground during the day and an assistant superintendent who was upon duty during the night time. During the period from January 30, 1906, to February 12, 1906, the weather had been extremely cold and for several days prior to the accident ice had formed in and about the top of the hoisting part of the shaft, which was removed from time to time by order of the superintendent.

In January, 1906, the deceased went to work in the main shaft, at which time it was about fifty feet deep, and continued to work there until February 12, 1906, the date of his death. His work consisted in drilling, shoveling and cutting with a pick, and at times assisting in handling the timbers used in curbing the shaft. The shift of men with which he was employed began work in the hoisting shaft at eight o ’clock in the morning of the accident. Before they went down in the shaft some of them noticed a quantity of ice forming in the west side of the hoisting compartment. The attention of Biley, the shift boss, was called to the ice in the shaft, whereupon he and one of the workmen cut away a portion of the ice that had formed on the curbing on the west side of the hoisting part of the shaft near the air-chamber, and then returned to the bottom of the shaft. Shortly thereafter a blast was prepared and the men went on top and remained until after it was fired, when they returned to the bottom of the shaft and resumed work. At this time the deceased, who had been drilling in the east part of the shaft, was directed by Riley to go into the southwest corner and work with a pick in trimming down the rib. While he was working directly under the air chamber, a large quantity of ice fell down from the air chamber, so injuring him that he died shortly thereafter. He was forty-seven years of age and was experienced in the work in which he was engaged.

It is contended by appellant that the trial court should have directed a verdict for the defendant for the reason that the undisputed evidence shows, first, that it had no notice, actual or constructive, of the accumulation of any ice in the air chamber; second, that the deceased had equal means of knowledge with appellant of the existence of the dangerous conditions, and, third, that the risk of the injury received by the deceased was one incident to his employment and therefore assumed by him.

There is evidence tending to show that the attention of the shift boss, Riley, had been called to the presence of ice in the hoisting compartment on the morning of the accident, and that the same had been removed ; that during the night preceding ice had several times fallen from the upper portion of the shaft upon the men employed at the bottom, and that the shaft boss, Evans, had made a partial inspection of the air chamber to ascertain whether" ice had formed there also, but that prior thereto no inspection had been made of the air chamber for that purpose. Under the circumstances we are not disposed to hold that there was no evidence tending to show constructive notice to appellant of the presence of ice in the air chamber. While the evidence discloses that the deceased knew of the formation of ice in the hoisting compartment, there is evidence tending to show that he had equal means of knowledge with the superintendent and shift bosses who were on duty at all times, while the deceased was at work for but eight hours out of the twenty-four. The construction of the air chamber was such that a person working at the bottom ■ of the shaft could not see whether there was ice therein or not. . It does not appear that such fact could have been ascertained by going into the fan house or that the deceased was authorized to enter the same for that purpose. It therefore cannot be said that the deceased had full opportunities for observation nor that every person of ordinary intelligence would have known of the presence of ice in the air chamber. Having the right primarily to assume that the place was'safe, he was not called upon to inspect the surroundings with care. Inspection and investigation would have been necessary to have advised him of the dangerous condition, and that was not required of him. Rock Island v. Pohlman, 210 Ill. 133.

When the deceased entered the service of appellant he necessarily had in view the risks ordinarily connected with such service, and by his contract of employment he assumed such risks. If he received the injury which caused his death from the incidental risks and hazards ordinarily connected with the employment, appellant cannot be held responsible. It was the duty of appellant to use reasonable care to furnish the deceased with a reasonably safe place in which to work. He did not assume risks or dangers due to a failure by appellant to perform such duty, which he had the right to assume had been performed, unless he had notice that it had not been and that the place provided for him to work was not reasonably safe, or if such unsafe condition was so apparent as to have been obvious to a person of ordinary intelligence, in which event he was chargeable with knowledge of such condition and the risk and danger arising therefrom, and assumed all risk of injury from the defect by voluntarily continuing in the service. Schillinger v. Smith, 225 Ill. 74.

Under the evidence in the record the questions whether, by the exercise of due care, the presence of ice in the air chamber could have been discovered by appellant; whether the deceased had equal means of knowledge with appellant of such fact; and whether under the rule of law stated, he as: sumed the risk of injury therefrom, were clearly issues of fact for the determination of the jury under proper instructions, and the trial court properly refused to direct a verdict for appellant at the close of all the evidence.

The complaint of appellant as to the rulings of the court upon certain of the instructions given in behalf of appellee, is, however, well founded. No. 3, while directing a verdict, omits the essential requirement that the deceased did not know the condition of the air chamber at the time he was injured and did not have equal means of knowledge with appellant of such condition. No. 5 incorrectly tells the jury that when an employer fails to use reasonable care to furnish safe premises, the risks arising from such failure are extra-hazardous and are not assumed by the employes. The employer is required only to exercise reasonable care to furnish his employe a reasonably safe place in which to work. Schillinger v. Smith, supra.

By No. 7, which also directs a verdict, the jury are told that if the dangerous condition which caused the death of the deceased could have been prevented by the exercise of reasonable care on the part of appellant, then the risks arising from such condition were not assumed by the deceased, thus ignoring the qualifications of the rule that an employe cannot assume that the place provided is reasonably safe if he knows the contrary, or if the defects are open and obvious to a person of ordinary intelligence.

There was no error in the rulings of the court upon the evidence. For the errors indicated, the judgment of the Circuit Court will be reversed and the cause remanded. The motion to tax costs of additional abstract against appellant is allowed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    J. H. Hoff, Appellant, v. H. W. Leneerman, Appellee.
    1. Contracts—when in restraint of trade valid. A contract in partial restraint of trade, if reasonable as to time, place and terms, is not in violation of public policy and is valid and binding.
    2. Contracts—when void for uncertainty. A contract in partial restraint of trade is void for uncertainty if its terms are so indefinite as to make it impossible to determine with certainty whether the restriction provided by the contract is reasonable as to place or. whether or not the same has been violated.
    Assumpsit. Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    A. L. Phillips, for appellant.
    Schneider & Schneider, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit brought by appellant against appellee for the recovery of the sum of $500 liquidated damages for the violation of a written contract.

The declaration avers in substance that on March 1, 1904, the defendant sold to the plaintiff an undivided one-half interest in a certain threshing machine, engine and corn shelter, and that as part consideration of such sale, the defendant entered into a written agreement with the plaintiff whereby he, the defendant, agreed that he would not “run or have any interest in any engine, threshing machine or corn sheller for a term of three years from date in the territory contiguous to Guthrie, Illinois,” and that for a failure to perform such obligation, the defendant agreed to pay to the plaintiff the sum of $500 as fixed and settled damages; that the defendant did in the territory contiguous to Guthrie, Illinois, run a corn sheller within three years after the first day of March, 1904, whereby he became liable to pay to the plaintiff said sum of $500, etc.

A demurrer was sustained to said declaration, and upon the plaintiff’s electing to abide thereby, judgment was entered against him in bar of the action and for costs, to reverse which this appeal is prayed.

We are of opinion that the action of the trial court was proper. It is well-settled that contracts in partial restraint of trade, if reasonable as to time, place and terms are not in violation of public policy and are valid and binding. Southern Fire Brick Co. v. Sand Co., 223 Ill. 622. By the terms of the present contract appellee agreed not to run a corn sheller “in the territory contiguous to Guthrie, Illinois.” The word contiguous is defined as “adjacent, in actual contact, touching, near.” Am. & Eng. Enc. Law, Vol. 7, 79.

It is obvious that the word when employed as descriptive of territory, renders the extent or scope intended to be included thereby so indefinite as to make ■ it impossible to determine with certainty whether the restriction provided by the contract is reásonable as to place, or whether or not appellee had violated the same. For this reason we are constrained to hold that the contract is void for uncertainty, and incapable of enforcement.

■ The judgment of the Circuit Court will accordingly be affirmed.

Affirmed.


text:
    William A. Robinson, Appellant, v. Thomas B. Yetter, Appellee.
    1. Evidence—how common law of sister state may be established. Common law of a sister state may be shown by testimony of witnesses learfied in the law or by the books of reports of adjudged cases accredited in that state.
    2. Presumptions—as to law of sister state. The presumption is that the common law prevails in a sister state but this presumption is not overcome by testimony of lawyers practicing in such state which is in part uncertain and which is unsupported by the citation of corroborative decisions.
    3. Contracts—what not essential to valid rescission of agreement for purchase of real estate. The rescission of a contract for the purchase of real estate is valid, notwithstanding a fatal defect of title, upon which such rescission is predicated, is not pointed out by the vendee to the vendor, inasmuch as such vendor is presumed to know the law, and'is therefore bound to be apprised of such fatal defect of title.
    4. Appeals and errors—effect of incomplete abstract. Matters relied upon on review and not contained in the abstract filed pursuant to rule, will not be considered by the court.
    Replevin. Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed June 11, 1908.
    Berry, McCrory & Kelley and William H. Hartzell, for appellant.
    D. E. Mack and A. W. O’Harra, for appellee,
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action of replevin by William A. Robinson against Thomas B. Tetter and Earl Tetter for the recovery of a stock of merchandise which the declaration alleges said defendants took from the plaintiff and unjustly detained. The defendants filed pleas of non cepit, non detinet, property in the defendants severally and property in the defendants jointly. The suit was. afterward dismissed as to Earl Tetter. A verdict was returned finding the ownership and right to possession of the property to he in the. plaintiff, judgment was' entered upon such verdict and a writ of retorno habendo awarded.

The facts involved so far as it is necessary to state them are substantially as following: Appellee resided at Fountain Green, Hancock county, Illinois, where he was engaged in the retail merchandise business.. He desired to exchange his stock of merchandise and certain real estate in Fountain Green for farm property. Appellant, who lived in Iowa, had a farm in Monroe county, Missouri, which he was willing to exchange for property of the character owned by appellee. After some negotiations they,. on March 16, 1904, entered into a written contract, by the terms of which appellant agreed to sell and convey, and appellee agreed to purchase the farm lands in question for the. sum of $18,000, to be paid at the time and in the manner following: $12,250 on the execution and delivery of the contract, to be paid by the conveyance to appellant by appellee of his stock of goods and real estate in Fountain Green; by the assumption by appellee of an encumbrance upon the farm land of $5,500; and the payment of $250 in cash on or before April 1, 1904. The contract provided that upon the receipt of the final payment as above stated, appellant should execute and deliver to appellee a good and sufficient warranty deed' conveying a merchantable title to the premises, and furnish an abstract of title showing the same; and further that in case any material defects in title appeared, appellant should have a reasonable time to clear the title and if such defects could be removed and the title made good by a proceeding in court, then he" should have the opportunity and option to bring and prosecute such suit before the sale should be void.

After the contract had been signed, the question as to when appellant should have possession of the stock of merchandise was discussed. Appellant claims that a verbal agreement was then made that the title and possession of the same was to pass at that time, while appellee claims that title and possession was not to pass until April 1,1904. On the following day, the parties returned to Fountain Green. The evidence as to what then occurred is conflicting. Appellant claims that he was given possession of the stock, and by himself ctr his agent Cooper conducted the business for about two weeks and until appellee, in his absence, re-took possession; while appellee claims that he at all times continued in possession. On April 9, 1904, appellant tendered to appellee a warranty deed signed and acknowledged by himself and wife conveying to appellee the Missouri land, together with an abstract of title to the land showing upon its face a merchantable title thereto to be in appellant. At the same time he caused to be served upon appellee a demand in- writing that he comply with the contract on his part. Appellee refused to accept the deed and abstract, or to comply with the contract, whereupon appellant, on April 12, 1904, instituted the present suit.

Numerous questions are presented by the assignments of error and argued by counsel. In the view we take of the case the only one necessary to consider is whether appellee at the time of the signing and delivery of the contract in question or thereafter, prior to the institution of the present suit, acquired the legal title to the Missouri land and was thus able to perform the contract on his part. Under its terms appellant became bound to execute and deliver to appellee a good and sufficient warranty deed conveying a merchantable title to the Missouri lands and to furnish an abstract showing such degree of title. The only title he claimed to have had was derived through a warranty deed executed by Kate Herman and husband which came into his possession under the following circumstances: On March 24, 1904, the Hermans, the then owners of the land,- pursuant to a contract theretofore made between them and one Cooper, for whom appellant was acting as agent, executed and acknowledged the deed in question without the name of a grantee or the amount of the consideration being inserted therein, and delivered the same to appellant who then gave the Hermans his personal check for the purchase price agreed upon. Several days after the contract now involved was executed, appellant inserted in the deed his own name as grantee and the sum paid by him as the consideration. It is admitted by appellant that an instrument of this character is invalid and inoperative to convey title under the laws of Illinois, where the common law prevails, but he maintains that the laws of Missouri, where the land is located, must control, and that under said latter law, the deed was valid. Appellee does not controvert. the latter proposition but insists that the record fails to show that a deed so executed is valid under the laws of Missouri.

The common law of a sister state may be shown by testimony of witnesses learned in the law, or by the books of reports of adjudged cases accredited in that state. At common law as interpreted by the courts of Illinois, a deed of the character in question is invalid and inoperative to convey title. In the absence of proof to the contrary, the presumption is that the common law prevails in the State of Missouri. Forsyth v. Barnes, 228 Ill. 326. To overcome such presumption appellant offered the testimony of Messrs. Williams and Humphrey, practicing attorneys in the State of Missouri. Mr. Williams upon his direct examination testified that in his opinion, based upon mere deduction from the trend of the decisions of the courts of Missouri, a deed of the character in question was valid under the law of that state. He further stated that the precise question had never been decided by the Missouri courts, and that it was one upon which good lawyers might honestly differ. Mr. Humphrey testified that in his opinion there was no question but that under the law of Missouri such a deed would be valid. On cross-examination he further stated that the common law prevailed in that state except where changed, abrogated or modified by statute, and that there was no statute there in force controlling the question. To further sustain his contention appellant introduced in evidence a number of decisions of the Supreme Court of Missouri. Inasmuch as the same are not shown by the abstract, we shall not consider them. The fore-. going evidence is insufficient in our opinion to establish the validity of the deed. It shows not only that the common law prevails in Missouri and the absence of statutory enactment affecting instruments of this character, but also that the courts of Missouri had as yet failed to construe the common law relative to the . subject as it prevails in that state.

The contention of appellant that even though at the time the deed and abstract of title were tendered, the deed from Hermans to appellant was inoperative and void for the reasons stated, under the clause in the contract above quoted, appellee should have pointed out the defect to appellant, and given him an opportunity either to have procured another deed or to have confirmed the title by a proceeding in equity, is without, merit. Appellant is presumed to have known the law, and was therefore well aware that he had derived no legal title to the land through the deed in question. No necessity existed therefore for advising him of what must be held to have been already known. Furthermore, the defects contemplated by the clause referred to, were manifestly such as would not appear upon the face of an abstract of title, and it is obvious that the invalidity of the deed and the consequent want of title in appellant was not apparent from the one presented.

We therefore conclude that neither at the time of the tender of the deed and abstract of title to appellant, nor the commencement of the present suit, was appellant able to perform the agreement on his part. If appellant ever at any time had possession of the stock of merchandise, such possession must have been delivered upon the condition that he would fully comply with the contract on his part at the proper time, and as he failed so to do appellee had the right to retake and retain possession of the same. The question as to previous possession of the goods, therefore becomes immaterial to be determined. Inasmuch as at the time of the issuance of the writ of replevin, appellant had neither the title to nor the right of possession of the property in controversy, the judgment of the Circuit Court was warranted and the same will be affirmed.

'Affirmed.


author: Mr. Justice Ramsay

text:
    American Home Circle, Appellant, v. Cecelia Mastinsek, Administratrix, Appellee.

      Vebdici—when set aside as against the evidence. A verdict unwarranted by the evidence will be set aside on appeal.
    Assumpsit. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed December 7, 1907.
    Rehearing denied and opinion modified May 20, 1908.
    George W. Kenney and Humphrey & Anderson, for appellant.
    Baldwin & Stringer, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Louisa Hastinsek brought suit against appellant, a fraternal benefit association, upon a certificate issued to Stephen Hastinsek in which said Louisa Hastinsek was the beneficiary. After commencement of the suit the said beneficiary died and Cecelia Hastinsek, as administratrix, was substituted as plaintiff. A verdict was returned in favor of appellee. Judgment in favor of appellee was rendered in the sum of $680.70, and appellant appealed.

Upon the trial the defense set' np by appellant was that the assured committed suicide and that by the terms of the certificate such suicide rendered such certificate null and void and' no recovery could be had.

We have made a careful examination of all the evidence and from the competent evidence have no doubt that Stephen Mastinsek came to his death by suicide. No rational conclusion can be drawn from a consideration of such competent evidence other than that of suicide and in that regard the verdict was unwarranted and should have been set aside.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Charles C. Wetzel, Plaintiff in Error, v. County of Hancock, Defendant in Error.
    1. Appeals and eebobs—of whom bond not required. Counties, cities, towns, etc., by virtue of statute may appeal or sue out a writ of error without the giving of bond.
    2. Counties—what courts have jurisdiction of. Only the Circuit Court and courts of general jurisdiction have jurisdiction of actions local or transitory instituted against counties.
    3. Jubisdiction—when appearance does not confer. An appearance does not confer jurisdiction upon a court with respect to an action the subject-matter of which is not within its jurisdictional cognizance.
    Action commenced before justice of the peace. Error to the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    Rehearing denied, opinion modified May 20, 1908.
    John D. Miller and William H. Hartzell, for plaintiff in error.
    George V. Helfrich, for defendant in error.
   Mr. Justice Ramsay

delivered the opinion of the court.

Plaintiff in error brought suit against defendant in error before a justice of the peace in Hancock countyo to recover for services alleged to have been performed by plaintiff in error for the defendant in error. Summons was served upon the county board and on return day George V. Helfrich, the state’s attorney for said county, appeared on behalf of the county. Upon a trial of the cause before the justice of the peace and after all the evidence upon the part of plaintiff in error had been heard, the defendant in error, by its attorney, entered a motion to dismiss the case for want of jurisdiction upon the part of the justice of the peace. This motion the court overruled and rendered judgment in favor of plaintiff in error in the sum of $141 and costs. An appeal was prayed by defendant in error to the Circuit Court of said county, which was allowed without bond.

In the Circuit Court plaintiff in error made a motion to dismiss the appeal for want of an appeal bond, and defendant in error renewed its motion made before the justice of the peace to dismiss the suit for want of jurisdiction. The trial court denied the former motion and allowed the latter and dismissed the suit for want of jurisdiction of subject-matter. Exception was taken to the action of the court and the case brought to this court upon a writ of error.

Plaintiff in error first contends that the appeal was improperly allowed from the justice of the peace because of the fact that defendant in error gave no appeal bond.

Counties, towns and other municipal corporations are, under section 72 of chapter 110 of the Revised Statutes, relieved from the necessity of giving any bond whatever upon an appeal. That section in substance provides that in all cases counties, cities, towns, etc., may appeal or sue out a writ of error from any inferior to any higher court without giving bond. The appeal involved was clearly within the spirit and meaning of that section. Kelly v. School Directors, 66 Ill. App. 134.

, Plaintiff in error next contends that the justice of the peace had jurisdiction of the suhject-matter- involved and that the trial court erred in dismissing the suit. Section 31 of chapter 34 of the Revised Statutes provides that: “All actions, local or transitory, against any county may be commenced and prosecuted to final judgment in the Circuit Court or any court of general jurisdiction in the county against which the action is brought.” The word “may” in this section has been held by our Supreme Court to mean “must.” Randolph County v. Ralls, 18 Ill. 29.

In Supervisors of Kane County v. Young, 31 Ill. 194, it was held that the Court of Common Pleas of the city of Aurora had no jurisdiction of a suit against the county of Kane as the statute required all actions against any county to be commenced in the Circuit Court.

' Said' section 31 above quoted, is not in our judgment modified by section 10 of article two of chapter 79 relating to justices and constables. The word “county” is not employed in such section 10, and the term “other municipal corporations,” as there employed in connection with cities, towns and villages, does not have reference to counties and does not confer upon justices of the peace jurisdiction in suits by or against counties.

Since, under said section 31 above quoted, all suits against counties must be brought in the Circuit Court or a court of general jurisdiction in the county, -it follows as a matter of course that a justice of the peace has no jurisdiction of the subject-matter in a suit in. which a county is a defendant, and as the justice of the peace in the case at bar had no jurisdiction of the subject-matter it could not be given him by an appearance of the defendant, nor even by its consent. Leigh v. Mason, 1 Scam. 249; Beesman v. City of Peoria, 16 Ill. 488; Williams v. Blankenship, 12 Ill. 121; Highway Commissioners v. Smith, 217 Ill. 260.

In Peak v. The People, 71 Ill. 278, the court say that “consent of the parties cannot confer jurisdiction upon a court in which the law has not vested it.”

The justice of the peace had no jurisdiction of the subject-matter and the Circuit Court could, upon an appeal, acquire no jurisdiction to try the case. Dodge v. The People, 113 Ill. 496; Nigh v. Dovel, 84 Ill. App. 228.

Plaintiff in error cites many cases in support of his-contention that an appearance by appellee can he held to give the court jurisdiction, but an examination of those cases shows that the jurisdiction there discussed was a jurisdiction of the person and not a jurisdiction of the subject-matter.

Where a court has jurisdiction of the subject-matter a party may confer jurisdiction of his person by an entry of appearance, but when the court has no power to hear and determine the subject-matter involved, the question of jurisdiction is not waived by an appearance, but may be suggested at any time and in any manner that properly calls the attention of the court to that fact. Nigh v. Dovel, 84 Ill. App. 228; Town of Audubon v. Hand, 223 Ill. 367.

The action of the trial court in dismissing the suit was proper and the judgment is accordingly affirmed.

Affirmed.


text:
    The People, Defendant in Error, v. Benjamin F. Peltz, Plaintiff in Error.
    1. Evidence—what may he shown upon cross-examination. The interest- of a witness in the result of a pending action, consisting in the maintenance by him against the same defendant of kindred actions, may be shown upon cross-examination..
    2. Instructions—when should he peculiarly accurate. Where the case is close upon the facts, the instructions should be of special and.particular accuracy.
    Information for keeping gambling house. Error to the County Court of De Witt county; the Hon. Fred C. Hill, Judge, presiding.

      Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    John Fuller and Ingham & Ingham, for plaintiff in error.
    Arthur F. Miller and E. B. Mitchell, for defendant in error.
   Mr. Justice Ramsay

delivered the opinion of the court.

Benjamin F. Peltz sued out a writ' of error to the County Court of DeWitt county to reverse a judgment in the sum of $499.99 in that court in favor of The People of the State of Illinois rendered against him on a trial upon an information charging Peltz with keeping a common gaming house.

The principal errors assigned relate to the ruling of the trial court in the admission of evidence and the action of the court in giving instructions for the People.

Fitzgerald, the main witness for the People, testified to having seen Peltz in and around the room where it was alleged the gambling took place and that he had bought chips from Peltz for the purpose of playing-roulette. Upon cross-examination Fitzgerald was asked whether or not he then had a civil suit pending against Peltz, and another to recover money he claimed to have lost on roulette at the time covered by the information, and whether or not his wife had not, at that time, a suit pending to recover a penalty from Peltz because of loss of money by Fitzgerald to Peltz at gambling, during the same time. To each of these questions an objection was sustained by the court.

This was error. It was competent to show that Fitzgerald was interested in securing the conviction of Peltz, as affecting his credibility as a witness, and this could be shown upon his cross-examination.

Jones in his work on Evidence, volume 3, sections 829 and 830, says: “The cross-examination would be of little value, if the witness could not he fully interrogated as to his motives, bias and interest,” and that “it has been frequently held that it was error not to permit cross-examination as to the state of feeling or bias of the witness.”

The People, called eighteen witnesses, but only two of them testified that Peltz had anything to do with the alleged gambling house during the time for which conviction was sought. These two witnesses were William McCready and James Fitzgerald. McCready testified that he had been in the room where the gambling was alleged to have taken place' and had seen Peltz there, but could not say that he ever saw him sell any chips or checks for playing the wheel; that while he sometimes saw him playing cards there he seemed to exercise no act of ownership over the business.

James Fitzgerald testified that he had been in the room at times covered by the information and had seen Peltz there and' that he had bought checks from him on two different occasions for the purpose of playing roulette and that Peltz asked him twice to play on the wheel.

Plaintiff in error testified that he had not been engaged in keeping a gambling house at any time during the period covered by the information and at no time had invited Fitzgerald to play and had never sold him any chips and that he had no interest whatever in the gambling house or the business involved, at the time in dispute.

H. S. Matthews, who worked in the alleged gambling room during the time covered by the information, testified to matters strongly tending to corroborate Peltz and tending to show that Peltz had no interest whatever in the business at the time complained of and that Peltz was not there at any time during the period when Fitzgerald says Peltz asked him to play roulette.

The case thus became close upon the facts and it was essential that the instructions given should have been accurate.

The court upon the part of the People instructed the jury that if they believed from the evidence that Peltz had knowingly testified falsely, they had a right to disregard his entire evidence except where it was corroborated by other evidence. This was error, as it is essential that the matter so testified to shall be material before the jury are at. liberty to disregard the testimony of a witness. Peak v. People, 76 Ill. 289.

In view of the sharp conflict in the evidence the giving of this instruction was prejudicial error,

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

Reversed, and remanded. .


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    Noah B. McNemar et al., Plaintiffs in Error, v. Christian J. W. McNemar et al., Defendants in Error.
    1. Attobney and client—rule of constructive knowledge. Knowledge by tbe client of facts. affecting litigation, is equivalent to knowledge upon the part of his attorney.
    2. Partition—when allowance of solicitor’s fees properly denied. If no decree could have been properly rendered by the court based upon the allegations of the original bill alone, then an allowance of solicitor’s fees should not be made. ■ 1
    3. Partition—when statute authorizing, allowance of solicitors fees does not. apply. The statutory provision authorizing the allowance of solicitor’s fees in partition proceedings upon certain conditions prevailing, has no application in favor of parties who joined in the original bill by supplemental bill.
    Partition. Error to 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.
    Rehearing denied May 21, 1908.
    Thomas W. Tipton, for plaintiffs in error.
    Welty, Sterling & Whitmore, for defendants in error.
   Mr. Justice Ramsay

delivered the opinion of the court.

This was á proceeding in partition instituted in McLean county to divide the lands of one Mary Mc-Nemar, deceased, among her heirs at law. In the final disposition of the case the trial court refused to allow any solicitor’s fees to be taxed as costs, and from that order refusing to allow such fee this appeal was taken.

It appears from the evidence that Thomas W. Tip-ton, attorney at law, was employed by one Eva 0. Dodson, one ef the heirs of said Mary McNemar, deceased, to file a bill for partition of the premises involved and he, acting under the instructions of said Dodson, filed a bill on the twenty-sixth day of September, 1905, in the McLean county circuit court; that at the time the bill was filed and prior thereto there were pending negotiations between Christian J. W. McNemar, the surviving husband of said Mary McNemar, deceased, and Esta E. Patton and others, heirs of the said Mary McNemar, for the sale of the interest of said Patton et al. in the premises sought to be divided to said Christian J. W. McNemar; that a deed in proper form for the conveyance of the interest of the grantors therein in said premises to said Christian J. W.. McNemar had been prepared on September 4, 1905, and was signed and acknowledged by a part of such grantors on the same day; that such deed was presented to said Eva 0. Dodson for her signature, when she refused to sell her interest in said lands and declined to sign the deed; that at the time the deed was presented to her for her signature and prior to the filing of the bill it had already been signed by Esta E. Patton and several others of the heirs of said Mary McNemar, deceased, and they had received payment therefor from said Christian J. W. McNemar; that said Eva O. Dodson knew that some of her brothers and sisters had sold their interest in said premises to Christian J.W. McNemar and had signed a deed therefor and that two of them had acknowledged the same prior to the time she filed the bill for partition in this proceeding.

With this knowledge upon her part she presented her bill for partition in which she alleged that the title rested in herself, her brothers and sisters in equal shares, subject to the dower rights of said Christian J. W. McNemar, without alleging anything in regard •to the sale made by said other heirs to their father and with no reference whatever to the making of said deed,' not even by those who had received payment for the sale of their interest in said premises and who had already acknowledged the deed therefor. Answer to such bill was filed by said Christian J. W. McNemar, also a cross-bill was filed by him, in which the rights of the parties were specifically set forth as above outlined. Afterward a supplemental bill was filed by Eva O. Dodson in which it was alleged that since the filing of the original bill such deed from said other heirs of said Mary McNemar (except Harriet Lock) to said Christian McNemar had been executed and delivered and that as to said Harriet Lock, while she had accepted payment of consideration therefor, she had not acknowledged such deed to Christian J. W. McNemar.

The master in chancery who took and reported the evidence in the case, together with his findings, reported to the court that he found at the time of the filing of the original bill the said deed, while it had not been filed of record, was being circulated among the heirs of said Mary McNemar for their signature and had been presented to said complainant, Eva O. Dodson, for her signature, having on it, at that time, the signature of two of the heirs properly acknowledged by them and being on that day signed by another of the heirs, Harriet Lock, in the presence of said Dodson, but not acknowledged by her.

The court, also, in its decree found that on September 4, 1905, said deed to Christian J. W. McNemar had been signed by said three of the said heirs of said Mary McNemar when it was tendered to her (complainant) and she refused to sign it. These findings of .the master and the court are not, in our opinion, against the weight of the evidence, but instead are fully in accord therewith.

While it may be true that Thomas W. Tipton, solicitor for said Eva 0. Dodson, knew nothing whatever of the existence of any deed from a part of the heirs of Mary McNemar to Christian J. W. McNemar conveying their interest to him in the premises involved in the proceeding, at the time the original bill was filed, yet since his client had full knowledge of the situation existing as to the title when she filed her bill for partition on September 26, 1905, that knowledge upon her part would be, in law, knowledge upon the part of her solicitor.

Section 40 of the act relating to partition of real estate provides that in partition proceedings the court shall apportion the costs, including the reasonable solicitor’s fees, among the parties interested in the suit, so that each party shall pay his or her equitable portion thereof, unless a good and substantial defense be interposed, when the rights and interests of all the parties in interest are properly set forth in the petition or bill.

The allowance of solicitor’s fees in such a proceeding can be made only where the court rendering the decree can find that the interests of the parties were correctly set up in the petition or bill and can render a decree in substantial conformity with the allegations of the bill. Jeperson v. Mech, 213 Ill. 488.

In the case at bar no decree could have been properly rendered by the court based upon the allegations of the original bill or petition alone. It was only after an answer thereto had been filed followed by a cross-bill and supplemental bill setting up and bringing to the attention of the court the matters necessary to a finding of the rights of the respective parties in interest, that the pleadings were in such shape that the court could render such a decree, as was right and proper, to establish and determine the rights of all parties concerned.

Nor was it proper to allow solicitor’s fees to some other of the parties to said original bill who became complainants in a supplemental bill, and the court committed no error in refusing to allow such fee. In Gehrke v. Gehrke, 190 Ill. 166, it is said that statutes which impose costs -are penal in -their character and are to be construed strictly. In that case a widow filed a petition for assignment of dower and one of the heirs to the estate-involved filed a cross-hill praying, for the assignment of dower and also for partition of the property among the heirs. The court there held that no allowance for solicitor’s fees could be taxed against the widow. We fail to see how, under the statute, any solicitor’s fees could be taxed as costs in this proceeding.

The decree of the trial court was right and is affirmed.

Affirmed.


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    D. D. Donahue, Administrator, Plaintiff in Error, v. George Brooks et al., Defendants in Error.
    Accord and satisfaction—when supported by sufficient consideration. Where a creditor receives anything of benefit to himself that he would not otherwise have had, together with a payment of a lesser sum than that which is apparently due, an accord and satisfaction is established.
    ■ Action commenced before justice of the peace. Error to 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.
    Edward Peirce, for plaintiff in error.
    Welty, Sterling & Whitmore, for defendants in error.
   Mr. Justice Ramsay

delivered the opinion of the court.

J. P. Douglass, now deceased, brought suit against George Brooks before a justice of the peace in, McLean county and recovered a judgment in the sum of $95. Brooks gave an appeal bond with L. 0. Hay as surety and took the same to the County Court of McLean county where it was again tried and a like judgment rendered in favor of Douglass on the fifth day of January, 1906. On the day judgment was rendered Brooks prayed an appeal to this court, which was allowed, and he was given forty days in which to, file. Ms bond and bill of exceptions. On the next day, January 6, 1906, Douglass, who was sick and at the time, an inmate of the county house, sent for Hay, who was the attorney for Brooks, to come to the county farm, with a view to settling the case. Hay visited Douglass at the, county farm, when, after some negotiations, Douglass agreed to accept $40 in cash in full of his claim against Brooks if Hay would abandon the proposed appeal -to the Appellate Court and would pay the $40 at once and also pay all costs. This Hay agreed to do and thereupon paid Douglass the $40 and Douglass executed an instrument in the following words and figures:. .

“$40.00- Bloomington, Illinois, Jan. 6, 1906.

Received of George Brooks, by the hand of L. C. Hay, Forty ($40.00) Dollars, which I hereby agree to accept and do accept, in full payment of a judgment which I hold against George Brooks for Ninety-five Dollars, which judgment was rendered against said Brooks in my favor, at the December term,' 1905, of the County Court of McLean County, Illinois. And I hereby release the said George Brooks from the obligation in said judgment contained, and from all other obligations which I hold against him and I have this day-given the said L. C. Hay, Power of Attorney, in my stead to release said judgment on the records of the McLean County Court, and satisfy the same in full upon payment of the costs of suit.

his

Witnesses to mark: James (X) Douglass.

A. M. Conrad mark

Charles Laborence

Martha Winkle.”

On January 16, 1906, Hay paid all costs in the cause, amounting to $46.50. Douglass died at the county farm in January, 1906, before any effort had been made by Hay to release the judgment of record. On April 20, 1906, Donahue was appointed' administrator of Douglass’ estate and this suit brought by him as administrator against Brooks and Hay on August 16, 1906, in the Circuit Court of McLean county to recover upon their, bond given upon the appeal from the judgment before the justice of the peace. Trial was had in the Circuit Court which resulted in a • judgment in favor of Brooks and Hay and Donahue sued out a writ of error.

Only two points are made by the plaintiff in error which we think of sufficient merit to justify discussion. First, that there was no consideration to warrant the release of the difference between the $40 received by Douglass from Hay and the amount of the judgment, $95; second, that by the death of Douglass the power or warrant which the written instrument purported to give to Hay to satisfy and release the judgment, was revoked and annulled and for that reason the judgment still remained in full force and uncancelled.

It is undoubtedly the rule, as contended by plaintiff in error and as announced in Martin v. White, 40 Ill. App. 281, and Heintz v. Pratt, 54 Ill. App. 616, that “A payment of a lesser sum will not discharge a debt of a greater sum, without some additional compensation.” Yet it is also well settled that where the creditor receives anything of benefit to himself, that he would not otherwise have had, together with a payment of a lesser sum, there may be an accord and satisfaction. Titsworth v. Hyde, 54 Ill. 389; Curtiss v. Martin, 20 Ill. 555.

In the case before us the evidence shows that there was an agreement upon the part of Hay, acting for Brooks, to abandon the appeal, the' right to which had been fixed by the court on the day before Douglass and Hay made the settlement and that the cash payment to Douglass agreed upon should be made at once. Pursuant to this agreement between Douglass and Hay, Hay paid Douglass the forty dollars on the sixth day of January, 1906, thirty-nine days before Douglass could otherwise have obtained the money upon the judgment. Besides the verbal waiver of a right to an appeal, immediate payment of money was made, which must have been an advantage to Douglass. Douglas's was sick at the time of the negotiations and a county charge and had been told that he could live but a few weeks at most, and died within the forty days allowed for appeal. Under the circumstances it was surely a benefit to Douglass to at once receive the cash payment.

Upon the second proposition it is only necessary to say that even if the authority delegated to Hay in the . paper executed by Douglass, to release the judgment, was revoked by the death of Douglass, the paper was still operative as a receipt in full payment of the judgment.

The judgment of the Circuit Court was right and is affirmed.

Affirmed.


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    The People, ex rel. Maude Weese, Appellee, v. George Welch, Appellant.
    1. Bastabdy—what evidence not competent in prosecution for. In a prosecution for bastardy, it is not competent to permit the prosecutrix to prove statements made by her to different parties while she was pregnant, to the effect that the defendant was the father of her unborn child.

      2. - Bastardy—when instruction in prosecution for erroneous. In a prosecution for bastardy, it is error to tell the jury that in case the defendant is found to be the father of the bastard child he will be condemned to pay certain moneys for the support of such child; the sole and only question for the jury is to determine whether or not the defendant is the father of the. child in question:
    - 3/ Bastardy—when instruction as to proof of alibi erroneous> In a prosecution for bastardy, it is error to tell the jury that to render the proof of an alibi by the defendant satisfactory the evidence must cover the whole time during which.it was charged that the defendant could have had intercourse with the prosecutrix so as to render it impossible that he could have committed the act.
    4. Instructions—when upon credibility of witnesses erroneous. It is error to tell the jury that a witness may be impeached by showing he has testified falsely, without telling the jury that such false testimony must have been wilfully given.
    5. Instructions—must not submit question of law. An instruction in a civil or quasi civil cause is erroneous which makes the jury the judges of the law.
    . Bastardy proceeding. Appeal from the County Court of Fulton county; the Hon. J. D. Breckenridge, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    Harvey H. Atherton, for appellant.
    W. S. Jewell, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

. This was a proceeding in bastardy in the County Court of Fulton county brought by Maude Weese in the name of the People of the State of Illinois against George Welch. There was trial had in that court before a jury which resulted in a verdict finding Welch to be the father of said Maude Weese’s child. Upon such verdict the court entered judgment requiring Welch to pay $100 for the first year and $50 per year for each succeeding nine years for the support of said child, from which Welch appealed.

Appellant contends that the trial court was in error in allowing appellee to prove upon, the trial that Maude Weese made statements to different parties while she was pregnant to the effect that appellant was the father of her unborn child: This in our judgment was error. It was held in McCoy v. The People, 71 Ill. 111, that a bastardy proceeding was a -civil one, and that the prosecutrix was the real party in interest, using the name of the People as plaintiff, as a mere matter of form. The statements of Maude Weese as to the paternity of her child were self-serving and therefore incompetent. Wright v. Raftree, 181 Ill. 464; Farlow v. Town of Camp Point, 186 Ill. 256; Bishop v. Estate of Elizabeth Bishop, 95 Ill. App. 53; Corcoran v. The People, 27 Ill. App. 638.

Appellee contends, however, even if the statements of the prosecutrix be self-serving, that in bastardy proceedings such statements made during pregnancy are admissible in evidehce as tending to corroborate the mother in her claim as to the paternity of the child and cites Robbins v. Smith, 47 Conn. 182, and Welch v. Clark, 50 Vt. 386, in support of that claim. We think that the cases cited are to be regarded as exceptions to the general trend of decisions upon that subject.

In Siderlinger v. Bucklin, 64 Me. 371, the court say that the declarations of the complainant in bastardy are not admissible in evidence to corroborate the complainant. In Stoppert v. Niesle, 45 Neb. 105, the court say that evidence of the declarations of the complainant in a bastardy proceeding, in which she claimed defendant was the father of her child, made out of court, are incompetent. In Commonwealth v. Reed, 5 Phila. 528, 2 Pittsb. R. 470, the mother’s deathbed declarations as to who was the father of her child were held to be inadmissible.

Such declarations by the prosecutrix have been held incompetent in Iowa v. Hussy, 7 Iowa 409; State v. Spencer, 73 Minn. 101; State v. Tipton, 15 Mont. 74.

In State v. Lowell, 123 Iowa 428, the court say that the procedure in this form of action is that which obtains in ordinary civil actions and the rules of evidence are the same; hence declarations of the prosecutrix are not admissible.

In Corcoran v. The People, 27 Ill. App. 638, where the trial court allowed the prosecutrix to show she had named her bastard son after or for the reputed father and had also baptized him in that name in the church, the court say that such testimony was in the nature of manufactured evidence and was incompetent as tending to allow prosecutrix to corroborate her story by her own action.

Appellant next assigns as error the giving of the fourth, tenth, thirteenth and seventeenth instructions for appellee. Appellee’s fourth instruction, which told the jury that in case defendant was found to be the father of the bastard child, he would be condemned to pay certain moneys for the support of the child, was erroneous in submitting to the jury an issue which was not then being tried by them. The sole and only question for the jury to determine was whether or not appellant was the father of the child.

Appellee’s tenth instruction was bad in telling the jury that a witness could be impeached by showing that he had testified falsely without requiring such testimony to have been given wilfully.

Appellee’s thirteenth instruction was erroneous in telling the jury that to render the proof of an alibi by appellant satisfactory the evidence must cover the whole time during which it was charged he could have had intercourse with the prosecutrix, so as to render it impossible that he could have committed the act. This instruction was condemned in Briggs v. The People, 219 Ill. 345.

Appellee’s seventeenth instruction was bad in making the jury the judges of the law.

For the errors indicated the judgment -must be reversed and the cause remanded.

Reversed and remanded.


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    W. H. Whitaker, Defendant in Error, v. J. W. Mastin, Plaintiff in Error.
    1. Evidence—when comparison of signatures incompetent. The issue being as to the genuineness of a signature, it is not competent to compare the disputed signature with signatures admittedly genuine where the documents to which the genuine signatures are attached have been introduced solely for the purpose of enabling such comparison and do not in any way tend to prove any issue "in the cause.
    2. Instructions—When erroneous to direct verdict upon particular issue. Where there are several issues interposed by way of defense as to one of which a verdict may properly be directed, it is error to direct a verdict upon anything more than upon such particular issue.
    3. Appeals and errors—what assignments of error not considered. An assignment of error will not be considered on review if the appellant’s counsel only makes a general statement of objection with respect to the matter complained of and does not point out specifically wherein the alleged error consists.
    Judgment by confession. Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    E. J. Miller, for plaintiff in error.
    Harbaugh & Thompson, for defendant in error.
   Mr. Justice Ramsay

delivered the opinion of the court.

Defendant in error took judgment by confession against plaintiff in error and one A. B. Batman on April 18,1906, in the Circuit Court of Moultrie county upon a note dated October 16, 1905, for the principal sum of $500. Afterward the judgment was set aside and plaintiff in error permitted to plead to the merits. Plaintiff in error thereupon filed special pleas, in one of which he set up that his signature to the note in question was secured by Batman, who was the principal maker of said note, and one J. M. Wolf, acting in behalf of defendant in error, while plaintiff in error was in such an intoxicated condition that he knew nothing at all of the transaction, and that if he signed the note he did not know it when he did so; in another plea he alleged that he was mentally incapable to transact ordinary business when it was alleged he signed the note; and in another of said pleas he denied, under oath, the execution of the note. Issue was closed upon these pleas and a trial had before a jury which resulted in a verdict in favor of defendant in error in the sum of $547.10, upon which the court rendered judgment. Mastín prosecuted a writ of error.

Plaintiff in error contends that the trial court , committed error in admitting in evidence a note, other than the one sued on, which plaintiff in error had admitted he had signed, and also the last page and the signature thereto, of an affidavit made by plaintiff in error and filed in the cause, in support of his motion for leave to plead, for the purpose of enabling the jury to examine the signatures acknowledged by plaintiff in error to be his and compare the disputed-signature of plaintiff in error with his admitted signatures in determining whether or not the disputed signature was that of plaintiff in error. In Himrod v. Gilman et al., 147 Ill. 293-300, the court say: “The law seems to be well settled in our state that the genuineness of a signature cannot be proved by comparing it with an admittedly genuine signature to papers or documents not in evidence in the case and which are collateral to the issue and therefore not admissible in evidence for other purposes.”

In Brobston v. Cahill, 64 Ill. 356, it is said that such comparison may be made between the disputed signature and the signature to some paper of instrument admitted or proved .to be genuine, and which has been legally admitted in evidence under the issues. The clear meaning of the decisions upon this subject is that it is only where a paper has been admitted in evidence which tends to support some issue in the case upon which an acknowledged signature appears, that-the jury may compare an admitted signature with a disputed one to determine the genuineness of the disputed signature. In the case before us the note and the last page of the affidavit which bore the admitted signatures of plaintiff in error; were neither offered nor admitted in evidence as tending to prove any issue involved. Defendant in error first offered the affidavit of plaintiff in error “for the purpose of letting the jury see a signature that he admitted to be genuine” and over objection, the last page of the affidavit with the acknowledged signature of the plaintiff in error was admitted in evidence. Defendant in error then offered a note dated in April, 1905, and other than the one sued on, with the admitted signature of plaintiff in error upon it “for the purpose of permitting the jury to see the signature,” which, over objection of plaintiff in error, was also allowed in evidence. • It is too plain to require argument that the sole and only purpose of these two offers was to get before the jury the admittedly genuine signatures of the plaintiff in error for the purpose of comparison only, and thus enable the jury to determine the issues upon evidence which, under the circumstances, they had no right to consider.

Plaintiff in error next criticises the action of the court in giving the eighth instruction offered by defendant in error. This instruction in substance told the jury that even though they might believe from a preponderance of the evidence that Mastin was intoxicated when he signed the note, yet if the evidence failed to show that the liquor was furnished by Whitaker as charged in the third special plea, which set up collusion upon the part of Whitaker and those acting in his behalf to have the note signed by Mastin while he was drunk, then the jury should find for the plaintiff upon the issue of defendant’s intoxication under the pleadings in the case.

This instruction was misleading. It directed a verdict in favor of Whitaker, upon the issue of Mastin’s drunkenness, under all the pleadings in the case, instead of directing a verdict only on the plea in which it was charged that the drunkenness of Mastín, at the time the note was signed, was caused by liquor furnished him by said Batman and those acting on behalf of defendant in error.

Under another special plea plaintiff in error had made the claim that he was mentally incapable of transacting ordinary business at the time it is alleged he signed the note in suit, which was caused by his protracted drunkenness prior and up to the time of the date of said note, which was an issue separate and distinct from the alleged drunkenness caused by defendant in error on the day the note was made. Plaintiff in error had attempted to support his claim of incapacity by giving evidence bearing directly on that issue. This testimony was rendered valueless to him by said eighth instruction given for defendant in error.

Plaintiff in error next assigns as error the action of the trial court in refusing to give certain instructions tendered by him, but as he makes a general statement or objection only and does not point out specifically in what the alleged error consists, we do not feel called upon to discuss the same. A mere statement in the printed argument that instructions should or should not have been given without attempting to point out specific error and to show in what way prejudice resulted therefrom will not entitle objections, based on such statement, to consideration. Gordon v. Commissioners, 169 Ill. 510; Omensky v. Gieske, 125 Ill. App. 77.

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

Reversed and remanded.


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    Superior Coal Company, Appellee, v. E. R. Darlington Lumber Company, Appellant.

      Contracts—when not in restraint of trade. A contract is not in' restraint of trade by which one agrees to buy out a particular coal merchant and then to buy coal at wholesale from the other party to the contract, in consideration of which such second party obligates himself not to sell coal at wholesale to any other dealer at the place in’question, it not appearing that the output of any other wholesale dealer or purchaser of coal was in anywise involved, limited or affected or that there was anything in the contract to establish the price of coal to be sold at the place in question.
    Assumpsit. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    C. C. Terry and Welty, Sterling and Whitmore, for appellant.
    Rinaker & Rinaker, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee brought suit in the Circuit Court of Macoupin county against appellant to recover for coal sold and delivered and filed a declaration consisting of the common counts. Appellant filed special pleas in which it set up that it was a dealer in coal and lumber at Benld, Illinois, and other places, its coal business being to buy coal at wholesale and to sell the same at retail, while the business of appellee was to mine and sell coal; that appellee and appellant entered into an agreement to the effect that if appellant would buy out one Pryor, then selling coal at Benld, and would buy coal at wholesale from appellee and sell the same at Benld, that appellee would not sell its coal so mined by it to any other retail dealer in coal at that place; that in pursuance of said agreement appellant began to carry, on the coal business at said Benld; that without such agreement appellant would not have commenced buying at wholesale from appellee and selling its coal at retail at that place; that the coal for which appellee sought to recover was coal sold by appellee to appellant, and in pursuance of said agreement; that coal was an article of necessity and that the purpose of the said contract was to prevent and limit competition in the sale of coal and was therefore contrary to public policy and void.

A demurrer was sustained to the pleas, whereupon appellant elected to stand by its pleas. There was a judgment in favor of appellee in the sum of $1,343.32, from which this appeal is prosecuted.

In brief, by the contract as stated in the pleas, it was agreed that if appellant would buy out one Pryor, at Benld, and would then buy from appellee at wholesale, coal whieh it would sell at Benld, appellee would not sell at wholesale to any other dealer in'coal at that place.

Appellant contends that the contract set up in the pleas is contrary to public policy and void; that no cause of action can grow out of the same and cites Arnot v. Coal Co., 68 N. Y. 558, as a leading case in support of that claim. In that case two rival -coal mining companies of Pennsylvania entered into a stipulation which, in effect, provided that one of such rival companies should take, of the coal of the other, at a certain price, per ton, all that such other company shipped north of the south line of the state of New York for the purpose of keeping all the coal of the selling company out of .the state of New York, except that taken by the buying company and thus artificially enhance the price of coal at Elmira, which was the chief market for coal in western New York and where" prices of coal were established for an extensive district. That case is very different from the one before us. In the case cited there was a contract between rival coal producers made for the express purpose of creating a fictitious price, while under the terms of the contract here involved, the output of any other wholesale dealer or producer of coal was in no way involved, limited or affected, nor was there anything, in the contract, to establish the price of coal to be sold at Benld; neither does it appear from any averment in the pleas that the price of coal was, in fact, affected, nor did the contract forbid appellant buying, at that place, coal from parties other than appellee. The producer of a particular commodity or grade of coal agreed to sell that commodity at wholesale to one retail dealer at Benld and to give to that retail dealer the exclusive right to sell such product at that place. Manufacturers and producers of particular kinds or grades of commodities quite generally adopt the method of selling to only one merchant or dealer in a town or village where their goods are sold and we fail to see how it can be said to be against public policy for them to do so. If it is against public policy for a producer of a particular commodity to limit the places of sale of such commodity in cities and villages then in order to recover upon a contract for the sale of his particular product he must, before he makes his contract for selling, have offered to sell his commodity to every dealer in such city or village engaged in that line of trade. This does not seem to be a reasonable interpretation of the law.

In Brown v. Rounsavell, 78 Ill. 589, it was held that a contract to furnish for sale a certain make of sewing machines which provided that the dealer should engage in selling the kind of machines contracted for and no other, and to buy of the party then furnishing them and no other, was not in restraint of trade.

In Weiboldt v. Standard Fashion Co., 80 Ill. App. 70, it was held that a contract, which provided that a local dealer should sell no other patterns than those furnished by the seller at only the price fixed by the seller was not against public policy.

In Newell v. Meyendorff, 9 Mont. 254 (18 Am. State Rep. 738), it was held that a contract by “A” to give “B” the sole and exclusive right to sell and deal in a certain brand of cigars in the state, “A” not to sell said brand of cigars to anyone else in that state, in consideration whereof “B” contracted to cease to advertise and sell all other brands of cigars and purchase cigars from “A,” was not void as being in restraint of trade.

The contract set up in appellant’s pleas was not, in our judgment, against public policy and void on that account.

The demurrer was properly sustained and the judgment is affirmed.

Affirmed.


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    W. E. Terry Lumber Company et al., Appellants, v. The Mildred Park Amusement Company et al., Appellees.
    1. Appeals and errors—what order not -final. A decree allowing compensation to a receiver for himself and his solicitor, which requires the taking of evidence to establish, is interlocutory only.
    2. Receiverships—upon what commissions may he allowed. A receiver who sells property covered by specific liens, which liens are prior in right to the claims of general creditors, is entitled to his commission on such sale, inasmuch as such sale would have had to have been made by some other officer of court who would have been entitled to his commissions.
    Mechanic’s lien. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded, with directions.
    Opinion filed April 21, 1908.
    William A. Northcott, Alonzo Hoff, Walter A. Orr and Barber & Barber, for appellants.
    Shutt, Graham & Graham, for appellees.
   Mr. Justice Ramsay

delivered the- opinion of the court.

On October 1, 1906, the W. E. Terry Lumber Com-party filed its petition against the Mildred Park Amusement Company, Niels E. Johnson and George Eeisch, alleging that pursuant to the terms of an oral contract with said Park Amusement Company it had furnished lumber and building material for the construction of certain buildings on premises known as Mildred Park, near the city of Springfield, Illinois, and that there was then due and unpaid therefor the sum of $721.48.

It was further alleged in said bill that said Johnson owned the fee simple estate in the real estate involved, subject to a lease to the Mildred Park Amusement Company, and that George Eeisch had an interest therein, the exact nature of which was unknown to the petitioner. There was the usual prayer for decree establishing and enforcing the lien.

On November 7, 1906, Frank B. lies and two others as partners under the firm name of lies Bros, filed their bill in said Circuit Court asking for the appointment of a receiver for said Park Amusement Company, alleging that the company had numerous creditors, that it was insolvent and that the property and improvements of the company would suffer from want of care unless a receiver be appointed. On the same date the court appointed William E. Fain receiver of said Park Amusement Company, with the usual powers of a receiver, who duly qualified as such.

On December 3, 1906, H. L. Greer, by leave of court, filed a petition to intervene as a lien holder, alleging that pursuant to a written contract with said Park Amusement Company he had constructed an improvement called “Figure Eight,” with cars, etc.,upon said park premises, and that there was then due him on that account the sum of $6,500 and that he had duly filed his claim for mechanic’s lien in the office of the circuit clerk of said county on the 16th day of October, 1906. In this petition Greer prayed for the establishment and enforcement of his lien, etc. On the same day the court ordered said three matters as presented by the petition to be consolidated and directed publication of notice to the creditors of the company.

On December 7, 1906, by leave of court, the E. Haas Electrical Manufacturing Company filed a petition to intervene, as a lien creditor, claiming that by virtue of an oral contract with the Park Amusement Company to furnish and supply certain electrical. apparatus, etc., said Park Amusement Company owed such, petitioner the sum of $98.22, which was then due and unpaid, praying for the establishment of its lien, etc. On the same day the causes thus presented and consolidated were referred to the master in chancery to take the evidence and report the same to the court with his conclusions.

On August 8, 1907, the master in chancery filed a preliminary report in which he found that the claims for labor,- claims for mechanic’s liens and claims of-general creditors of the said Park Amusement Company -amounted to more than $25,500, and that the value of the assets of said company was entirely inadequate to pay the same; that-said assets were unproductive and a constant expense and recommended sale of the company’s effects at an early date, as being to the best interest of-all parties concerned.

On the same day the court entered a decree approving such report of the master in chancery, finding that the court had jurisdiction of the subject-matter and all of the parties to the consolidated cause and that it was not advisable to delay a sale of the property until the relative rights of all the parties could be passed upon by the court, and ordered and decreed, that all of the property of said Park Amusement Company be forthwith sold by said receiver for cash, free of all liens, and that the receiver bring the monéy into court to be distributed under the order of the court. Pursuant to the terms of the decree of August 8, 1907, the master in chancery advertised all of the property of the Park Amusement Company for sale on August 31, 1907. •

On August 31, 1907, there was a decree rendered by the court in which the rights and interests of the parties were established and in. which the court' found that said Lumber Company and such intervening petitioners, H. L. G-reer and the R. Haas Electrical and Manufacturing Company, had specific mechanic’s- liens upon the improvements in said park as claimed in their separate bills, and also finding in detail the amounts due the other creditors of the company, naming them. In such decree the court ordered that from the proceeds of the sale of thee, property of said Park Amusement Company there be paid, first, “the costs of the consolidated cause, including the reasonable solicitor’s fees of the said receiver, H. L. Greer, the Terry Lumber Company and R. Haas Electrical and Manufacturing Company, respectively;” second, that the sum of $350 be paid to said Reisch; third, that certain labor claims (naming them) be paid; fourth, that the proceeds of the sale of the leasehold estate of said Park Amusement Company and the improvements in the making of which the lienors’ material had been used, be kept separate by the receiver, so far as not necessary to pay the claims in said decree directed paid in the former clauses, be applied to the payments of the claim of said Lumber Company, $721.48, to R. Haas Electrical Company $98.22 and to H. L. Greer, $6,500; and fifth, that the residue be distributed pro rata among the general creditors.

Sale of all the property and effects of the Park Amusement Company was made by said receiver on August 31, 1907, when Greer bought said “Figure Eight,” upon which the court had found and decreed that he had a specific lien, at the sum of $6,500, and the said Lumber Company bought the office building and other property on which it had been found it had a specific lien, at the sum of $670. The total proceeds of all other property sold amounted to a little over $1,100. Said sale was duly reported by the receiver and approved by the court.

On September 4, 1907, on motion of the receiver the cause was referred to the master in chancery to take evidence upon the amount of the receiver’s compensation and solicitor’s fees and report, in pursuance to which order the master reported that $197.50 was a reasonable and usual fee for the solicitor of H. L. Greer; that $46 was a reasonable fee for the solicitor of the Lumber Company and $15 a reasonable fee for the solicitor of the Haas Electrical Company.

On September 11, 1907, evidence was heard upon which the court rendered a decree fixing the amount of the compensation which the receiver should have at $497.50 and that of his solicitors at $500. To this order the Lumber Company and Greer excepted and this appeal followed.

Appellants claim that the decree of August 31, 1907, was final only so far as it established the rights of the various parties and was merely interlocutory as to the compensation which the receiver should have and as to the fees of his solicitors and therefore the whole matter pertaining to such allowance was still open for a hearing and determination thereof when the order of September 11, 1907, was made, and also claim that the allowance made by the court in its decree of September 11, 1907, was improperly made and excessive.

We hold that the decree of August 31, 1907, so far as it related to an allowance in favor of the receiver, as compensation for himself or for his solicitors’ fees, which required the taking of evidence to establish, was an interlocutory order only.

In Jones v. Young, 228 Ill. 374, in a proceeding in' partition,. the court entered a decree directing partition and appointing three commissioners to divide the property. The decree further provided that the costs of the proceeding, including a reasonable solicitor’s fee, be apportioned among the parties according to their several interests, the same to be ascertained upon evidence to be taken upon a reference to the master in chancery when the report of the commissioners should have been filed and confirmed. The court there held that the decree was merely interlocutory as to the costs and that an appeal was allowable from the order fixing the amounts, and the fees and costs allowed by the trial court were held to be improper charges and the decree allowing them was reversed.

The order in the case before us had reference to allowances which could be enforced only after the court had heard evidence as to their value, or referred the matter to the master in chancery for that purpose, and entered a further or additional decree fixing the amount to be allowed. Where further judicial action is contemplated and is necessary, a decree is interlocutory and not final. Gray v. Ames, 220 Ill. 254.

Before the receiver was appointed in the consolidated cases each of the appellants had taken proper steps to preserve and establish his lien upon the property which was decreed to be specifically liable thereto, and which he afterward bought at the sale in extinguishment of that lien. To the extent of the liens so existing in favor of appellants when the receiver was appointed no action could be had or taken by the receiver in the interest of other or general creditors which could impair or depreciate; such specific liens. Link Belt Manufacturing Co. v. Hughes, 174 Ill. 155; Mears v. Hayden, 91 Ill. App. 343.

This holding would not prevent or forbid an allowance to the receiver of a compensation, in the nature of a commission, for his services in selling the property covered by such specific liens, the same as would have been allowed to a master in chancery for a like service in case sale had been made by him upon decree in favor of appellants upon their liens. So far as the receiver did, in the foreclosure of the specific liens, what would have been done necessarily by some officer of court to perfect the same sale, to appellants, he should be allowed to retain and have compensation therefor, together with an allowance of such court costs as are incidental to the sale of the property covered by such specific liens.

. The decree of the trial court is reversed and the cause remanded for such further proceedings herein as will be in accord with the holdings announced in this opinion.

Reversed and remanded with directions.


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    J. G. Farris, Appellee, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    1. Appeals and errors—when sufficiency of evidence not subject to review. The Appellate Court on appeal will not consider the sufficiency of the evidence to sustain a judgment where no exceptions were preserved to the rendition of the judgment.
    2. Bills of lading—effect of provisions of, with respect' to delivery. A railroad company is liable if it makes delivery of merchandise contrary to the provisions of the bill of lading and' without requiring the surrender thereof.
    Assumpsit. Appeal from the City Court of Pana; the Hon. Josiah P. Hodge, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Shutt, Graham & Graham and Hogan & Wallace, for appellant.
    McQuigg & Dowell, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee brought suit in the City Court of the city of Pana against appellant to recover damages for its failure to deliver four carloads of baled hay to appellee, as stipulated in its bills of lading. By agreement of the parties a jury was waived and the cause was tried before the court without a jury. There was a judgment in favor of appellee in the sum of $410, from which the company has prosecuted an appeal’.

It appears from the evidence that about September 11, 1905, J. Gr. Farris loaded, at .Lakewood, Illinois, four cars with baled hay which appellant agreed to transport to Atlanta, Georgia, and there deliver to appellee or to his order. The cars were furnished by appellant and were each consigned to “shipper’s order” with directions to notify J. G. Farris & Company. •

• There appeared upon the face of each bill of lading a provision in the following words:—

“If the word ‘Order’ is written immediately before or after the name of the party to whose order the property' is consigned, the surrender of this original bill of lading properly indorsed shall be required before the delivery of the property at destination, as provided by Section 9 of the conditions on the back hereof. ’ ’

Section 9, mentioned, read as follows:

“9. If the word ‘Order’ is written hereon immediately before or after the name of the party to whose order the property is consigned without any condition or limitation other than the name of a party to be notified of the arrival of the property, the surrender of this bill of lading properly indorsed shall be required before the delivery of the property at destination. If any other than the aforesaid form of consignment is used herein the said property may, at the option of the carrier, be delivered without requiring the production or surrender of this bill of lading.”

About September 15, 1905, and soon after the shipment had been made, Farris disposed of the bills of lading to Schuyler for $390' and assigned them to Schuyler by writing his name across the back thereof. Schuyler attached drafts to the bills of lading and forwarded them to his bank or correspondent at Atlanta for collection.

While the hay was still in transit T. M. Kehoe, of Terre Haute, Indiana, went with Farris to see Schuyler in regard to the shipment and such negotiations were entered into that the shipment of hay was diverted from Atlanta to Terre Haute, Indiana, and there received by T. M. Kehoe & Company and sold by them. The hay was delivered by appellant to Kehoe & Company at Terre Haute, without the surrender to it of the bills of lading, or any of them, and while such bills of lading were in the hands of appellee’s agent in Terre Haute, to whom appellee had forwarded them, after they had been returned to him from Atlanta.

Kehoe & Company claimed they were to receive the hay at Terre Haute and sell it upon their own account while appellee claims that he merely gave his consent to have the hay diverted from Atlanta to Terre Haute and that his agreement to divert the hay. from Atlanta to Terre Haute did not in any way release appellant from its obligation to deliver the hay according to the terms of the bills of lading and only upon their surrender.

Upon this branch of the case there was a.sharp, conflict in the evidence, but as no exceptions were taken to the rendition of the judgment and preserved in the bill of exceptions this court cannot pass upon and determine whether or not the judgment was supported by a preponderance of the evidence or is contrary thereto, and we must therefore affirm the judgment of thé trial court unless its holdings upon propositions of law submitted to it were erroneous.

Appellant contends that the trial court was in error in refusing to hold its propositions six and nine, which were in the following words:

“6. If the defendant delivered the cars in question to T. M. Kehoe & Co., upon the order of J. F. Farris, with the knowledge of H. N. Schuyler, and H. N. Schuyler did not forbid the defendant so. to deliver said cars, the defendant is not liable in this case.

“9. Under the pleadings in this case, if the defendant diverted the cars in question from Atlanta, Georgia, upon the order of J. G. Farris, with the knowledge and approval of H. N. Schuyler, the defendant is not liable in this case.”

The force and effect of holding these two propositions would have been to take from Schuyler the proceeds of the bills of lading duly assigned to him, because he did not forbid appellant to deliver the hay to Kehoe & Company and approved of the diversion of the cars of hay from Atlanta to Terre Haute, although his bills of lading, with the ownership and control of which he never parted, expressly provided that the hay should not be delivered to anyone except upon the surrender of the bills of lading properly indorsed.

Under the terms stated in the bills of lading Schuyler had a right to expect that appellant would not attempt to deliver the hay except in the manner provided for in the bills themselves, and in conformity with their provision, and there was no duty resting upon appellee to forbid appellant from doing that which it had expressly agreed in the bills it would not do. The mere consent by Schuyler to a diversion of the shipment from Atlanta to Terre Haute did not in any sense authorize appellant to wrongfully deliver the hay to a person not holding the bills of lading.

There appears to be no error in the holding of the court upon the propositions submitted and the judgment is affirmed.

Affirmed.