text:
    Pittsburg, Ft. Wayne & Chicago Railroad Company v. Sarah A. Reno et al.

      Covenant by Grantee of Part of Certain Premises to Restore and Continue a Switch Connection with the Remainder Thereof — Suit for Breach of — Whether Covenant Runs with the Land — “Heirs'’ and “Assigns,” not Mentioned — Joint Covenant — Parties—Misjoinder—Landlord and Tenant — Tenancy from Tear to Tear — Rights of Tenants — Hoto far Injured Party is Required to Limit Liability of Wrong-doer — Evidence—Admissibility — Error without Prejudice.

    1. The common-law rule, that where the heirs of a covenantor are not mentioned the covenant will be binding only on him, his executors and administrators, does not apply to a real covenant running with land granted or demised, or to which the covenant is attached, to secure to one party the full benefit of the grant or demise, or to the other the consideration for which it was made.
    2. A covenant by a grantee of one parcel of land for the benefit of other adjacent land of the grantor, will pass to a subsequent assignee of the latter tract.
    3. While it is the duty of one injured from another’s breach of a contract to make reasonable exertions to render the injury as light as possible, he is not required to surrender important and valuable privileges, or to take measures which are likely to involve himself in great and irreparable injury in order to diminish the liability of the wrong-doer.
    4. In an action against the grantee of a portion of certain premises to recover damages for an alleged breach of its covenant to restore a switch connection and to continue to the covenantees the use thereof, the amount claimed being for damages to the grantors as owners of the remainder of said premises in use as a coal yard, with which said switch was to connect, and for damages to the business of the husbands of said owners as lessees of said yard, it is held: That the covenant in question is a covenant running with the land of the covenantees; that a reference to their heirs and assigns was not necessary to constitute it such a covenant; that said covenant is to be construed as perpetual; that the continuance to the covenantees of the use of such switch connection is the proper subject of a covenant real; that 'there is no misjoinder of actions; that the covenant, being with all the covenantees for the performance of a single duty, is joint and not several; that the plaintiffs have several interests, not in the covenant itself, but merely in the subject to which it relates; that the joinder of all the covenantees was necessary to the maintenance of any action on the covenant; that the distribution of the damages between the covenantees does not concern the defendant; that when the switch connection was removed the lessees were holding as tenants from year to year; that they had a right to continue in the enjoyment of their tenancy, not merely during the current year, but until such tenancy should be determined; that under the circumstances it was not iheir duty in order to diminish the defendant’s liability to surrender their tenancy at the end of the current year; and that the admission in evidence oc the record of a chancery proceeding for a specific performance of said covenant, though improper, could not have prejudiced the defendant.
    [Opinion filed May 18, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Statement by Bailey, J. This was a suit brought by Sarah A. Heno, Charles A. Beño and Eugenia M. Little against the Pittsburg, Fort Wayne & Chicago Bailway Company, to recover damages for a breach by the defendant of the covenants contained in the last paragraph of the following contract:
    “ Articles of agreement,, made this twenty-eighth day of July, A.D. 1880, between Sarah A. Beño and Charles A. Beno, her husband, and Eugenia M. Little and Jacob H. Little, her husband, of Chicago, party of the first part, and the Pittsburg, Fort Wayne & Chicago Bailway Company, party of the second part: Witnesseth, that the party of the first part, in consideration of the money to be paid and the covenants as herein expressed, to be performed by the party of the second part (the prom jit performance of which payments and covenants being a condition precedent, and time being the essence of said condition), hereby agree to'sell to the said party of the second part all those certain lots and parcels of land, situated in Chicago, County of Cook and State of Illinois, designated and described as follows, viz.: Lots thirty-two (32), thirty-three (33), thirty-thirty-four (34), thirty-five (35), thirty-six (36), thirty-seven (37), thirty-eight (38), thirty-nine (39) and forty (40), in block sixty-three (63), in School Section Addition to Chicago, in the County of Cook and State of Illinois, but excluding all improvements upon the same, and which are to belong to and are to be removed by said first party at or before the delivery of possession as hereinafter provided. And the said second party, in consideration of the premises, hereby agrees to pay to said first party for said premises the sum of thirty-five thousand dollars (§35,000), twenty thousand dollars (§20,000) thereof being estimated for said premises, and fifteen thousand dollars ($15,000) thereof as damages, as follows, to-wit: Twenty thousand dollars ($20,000) thereof on the execution of this agreement, the receipt whereof is hereby acknowledged, by. said first party, and the remaining fifteen thousand dollars ($15,000), with interest from the date of this agreement until paid at the rate of six per centum (6 per cent.) per annum, to be paid upon and at the same time of the delivery by said first party to said second party of a good and sufficient warranty deed for said premises, except as to all taxes and assessments as hereinafter specified (the said Sarah A. Heno and Eugenia M. Little only warranting the title to said premises and Charles A. Seno and Jacob H. Little joining in said deed so as to convey all their interest in said premises), and it is further agreed between the parties hereto that said first party shall deliver to said second party the possession of the. east twenty (20) feet of said premises within one week from this date, and the remainder of said premises within forty (40) days from this date; and that said second party shall pay, when due, all the taxes and assessments of every kind assessed or levied upon said premises subsequent to the year A. D. 1879, and incase it shall fail so to do, said first party may pay the same, and the same, with interest thereon, shall ■ be repaid by said second party to said first party.

      “And it is further so agreed that said first party shall execute and deliver said warranty deed to said second party, and said unpaid purchase money and interest shall be paid as soon as they shall remove from said premises a pretended claim to or against the same, of one Richard T. Crane, mentioned in a bill in chancery to enforce the same, now pending in the Circuit Court of said Cook County, wherein said Crane is complainant, and said first party are defendants, said first party thereby agreeing to use proper and prompt efforts to have said claim so removed and said suit disposed of.
    “And it is further so agreed that if, for any reason, said pretended claim of said Crane should be finally established against said premises (said first party having the right of appeal to any court or courts), any sum to the extent of twenty thousand dollars ($20,000), so hereby received, which said Cían3 shall be decreed to pay by such final decree, alter such api eal or appeals, if any, to said first party in said suit or any other suit, in order to establish or enforce said claim to or against said premises, shall be paid to said second party and not said first party, in satisfaction of said sum so hereby received by them under this agreement, and thereupon this agreement shall be cancelled and annulled and said first party absolved therefrom, and from all covenants herein contained, and in such case said second party may take the necessary measures to have said twenty thousand dollars (§20,000) so paid to it; but the remainder of any sum so decreed to be paid in said suit, or any other suit (if such shall ever be the case), shall be paid to said first party.
    “And it is further so agreed, that if default shall be made by said second party in the payment as above provided, of said unpaid purchase money and interest, and such default shall continue for thirty days, this agreement shall be null and void at the option of said first party, or their heirs or assigns, and the aforesaid payment of twenty thousand dollars ($20,000) shall be forfeited and belong to said first party, and in which case the possession of said premises shall be surrendered to said first party, and in default of such surrender said first -party may institute the proper proceedings to obtain such possession, or at the election of said first party, or heirs or assigns, the covenants and liability of said second party shall continue and remain obligatory upon said second party, and may be enforced by proper proceedings for that purpose.
    “And it is further so agreed between the parties hereto, that said second party shall, on taking possession of the premises so hereinbefore described, restore all the switch connections now existing between said second party and said first party, or any of them, and continue to them the use of the same hereafter as heretofore.
    “ Sabah A. Reno, [L. S.]
    “ Charles A. Reno, [L. S.]
    “Eugenia M. Little, [L. S.]
    “ Jacob H. Tattle, [L. S.]
    “Plttsbubg, Eobt Wayne and
    “ Chicago Railway Company, [L. S.]
    “ By R. Biddle Roberts, Agent.”
    At the date of said contract Sarah A. Reno and Eugenia M-Little were the owners in fee of lots numbered from 26 to 46 inclusive, of block 63, in School Section Addition to Chicago, and their husbands, Charles A. Reno and Jacob H. Little, copartners doing business under the firm name of Reno & Little, were occupying said lots for a coal yard. Lots numbered from 32 to 40, inclusive, fronted on Beach Street, and constituted a strip of land 100 feet wide and 230 feet long. The main tracks of the defendant’s railway, said tracks being used by the defendant jointly with the Chicago & Alton Railroad Company, ran in and along Beach Street adjacent to the lots last mentioned, and for a number of years prior to the date of said contract, said coal yard had been connected with said railway by switch tracks, over which the defendant had delivered to Reno & Little, in their coal yard, all coal consigned to them over the roads of either of said companies without any switching charges.
    Shortly after the date of said contract the defendant obtained possession of the lots therein described, and proceeded to construct two additional railway tracks upon the portion of said lots adjacent to its main tracks.' In doing so it tore up said switch tracks but after the additional tracks were completed, switch tracks were again laid connecting the defendant’s tracks with said coal yard, and thereafter the defendant delivered to Reno & Little coal consigned to them over said roads free of switching charges as it had previously done. This continued until August, 1881, when the defendant conveyed or caused to be conveyed to the Chicago, Burlington & Quincy Railroad Company the residue of said lots not occupied by said additional tracks, being a strip of land seventy feet in width, lying between said additional tracks of the defendant and Reno & Little’s coalyard. The Chicago, Burlington & Quincy Railroad Company thereupon tore up said switch tracks and constructed seven railway tracks upon and along said strip of land, and refused thereafter to restore said switch connections between the defendant’s tracks and said coal yard. Said company, however, offered to give Reno & Little a switch connection with its own tracks, and some time in'188o, constructed a switch track connecting its tracks with said coal yard, and delivered coal ■ to said yard, charging Reno & Little from 82 to 84 per car for so doing.
    Soon after the completion by the Chicago, Burlington & Quincy Railroad Company, of its said seven tracks, said Sarah A. Reno, Eugenia H. Little and their husbands, after endeavoring unsuccessfully to obtain from said railroad companies a restoration of said switch tracks connecting the defendant’s railway with said coal yard, brought their bill in chancery against the defendant and said Chicago, Burlington & Quincy Railroad Company, to obtain a specific performance of the covenant in the foregoing contract relating to said switch connections, and obtained a decree compelling the restoration of said switch tracks and the continuance of the use of the same to the complainants, free of switching charges, which decree, on appeal to this court, was affirmed, but on a further appeal to the Supreme Court said decree was reversed and the cause remanded with directions to dismiss the bill for- want of equity. C., B. & Q. R. R. Co. v. Reno, 113 Ill. 40. In compliance with the mandate of the Supreme Court said bill was afterward dismissed without prejudice to any remedies or actions at law which the complainants or any of them might have concerning the matters mentioned in the bill. Pending said appeals said Charles H. Little died, and the present suit was brought by the plaintiffs as his survivors. At the trial before the court and a jury the issues were found in favor of the plaintiffs and their damages assessed at §85,000, and for that sum and costs the plaintiffs had judgment. The remaining facts are sufficiently stated in the opinion of the court.
    Messrs. Willard & Driggs and Dexter, Herrick &Allenj for appellant.
    Messrs. John H. Jewett and C. C. Clarke, for appellees.
   Bailey, J.

The first question to be considered is as to the proper construction to be given to the covenant upon which the suit was brought. Said covenant is in these words :

“ And it is further so agreed between the parties hereto, that said second party shall, on taking possession of the premises so hereinbefore described, restore all the switch connections now existing between said second party and said first party, or any of them, and continue to them the use of the same hereafter as heretofore.”

The defendant claims that this covenant was fully performed by restoring the switch connections between its tracks and Reno & Little’s coal yard, after the construction of its two additional tracks, and delivering coal over the same to Reno & Little free of switching charges, down to the. time the switch tracks were removed and the connection interrupted by the Chicago, Burlington & Quincy Railroad Company. To this view we are unable to assent. For a number of years prior to the execution of said covenant the switch connections between the defendant’s railway tracks and Reno & Little’s coal yard had been in existence, and during all that time the defendant had delivered to Reno & Little, free of switching charges, the coal consigned to them over its own road or that of the Chicago & Alton Railroad Company. Whatever may have been the defendant’s legal duty in the premises, such was its uniform practice. The plaintiffs, on selling to the defendant the lots in question, saw fit to exact as a part of the consideration, a covenant to restore the switch connections which were to be interrupted by the construction of railway tracks on the lots sold, and to continue to them the use of such switch connections thereafter in the same manner and upon the same terms as had been accorded to them in the past. It may be admitted that prior to the execution of the covenant the defendant was under no legal obligation to deliver coal at said coal yard without the exaction of reasonable switching charges, for even if that is so, the manifest design of the covenant was to change that which before was a matter of favor into a matter of contract. What the defendant had voluntarily chosen to do in the past, it agreed and bound itself to do in the future. There being no limitation in the covenant as to the time during which such use of the switch connection was to be continued to the covenantees, it should be construed, we think, to be perpetual. Other constructions are suggested, having some degree of plausibility, but an application of the rule, that a covenant should be construed most strongly against the covenantor, necessitates the construction we have adopted.

We are also of the opinion that said covenant is nota mere personal covenant, but a covenant running with the land of the covenantees as a benefit thereto. It is true the heirs and assigns of the covenantees are not mentioned or referred to in the covenant. That, however, is not necessary to con-titute it a covenant running with the land. The common-law rule, that where the heirs are not mentioned the covenant will be binding only on the covenantor', his executors and administrators, does not apply to real covenants running with the land granted or demised, or to which the covenants are attached for the purpose of securing to one party the full benefit of the grant or demise, or to the other party the consideration on which the grant or demise was made. Morse v. Aldrich, 19 Pick. 499 ; Platt on Covenants, 65.

A covenant by a grantee of one parcel of land for the benefit of other adjacent land of the grantor, will pass to a subsequent assignee of the latter tract, and may be enforced by him against the original covenantor. Woodruff v. Trenton W. P. Co., 10 N. J. Eq. 489; Lydick v. B. & O. R. R Co., 17 W. Va. 427. In the case last cited a right of way through land was granted to a railroad company, and in the deed, as the consideration for such grant, the railroad company covenanted with the grantor, his heirs and assigns, to build and forever maintain a switch track from said railroad to a mill on the land, and it was held that said covenant was a covenant real and run with the mill. In Stark v. Waterhouse, 7 El. & Bl. 816, the owners of a fulling-mill, dye-house, etc., were granted by deed the right of draining refuse onto the land of another, and in said deed they covenanted, in consideration of such grant, at all times thereafter, to supply to the grantor, his heirs and assigns, pure water sufficient for the consumption of his horses, cattle, etc., and it was held by the court and admitted by counsel that the covenant run with the land on which the animals were thus to be supplied with water.

The doctrine of the foregoing cases seems to be in harmony with all the authorities, and applies to the case before us. The covenant sued on was by the express terms of the contract made a part of the consideration of the conveyance to the covenantor of a portion of the land belonging to the covenantees. The consideration recited in the contract is, “ the money to be paid, and the covenants, as herein expressed, to be performed by the party of the second part.” There is nothing in the nature or character of the covenant which may not properly belong to a covenant- running with the land. It stipulates, first, for a restoration of the switch connections which, as the parties anticipated, were to be temporarily interrupted, and, second, the operation of such switch connections by the.defendant for the benefit of the covenantees, and free of charge to them, by the use of its locomotive engines and the personal services of its employes. The only doubt is whether the second division of the covenant is the proper subject of a covenant real. That it is, seems to be established by the authorities. The following casé, cited by Lord Coke, may be referred to as fairly illustrating the principle involved : “A, seized of the manor of D, whereof a chapel was parcel, a prior, with the assent of his convent, covenanteth by deed indented with A and his heirs, to celebrate divine service in his said chapel weekly, for the lord of said manor, his servants, etc. In this case the assignees shall have an action of covenant ; albeit they were not named, for that the remedy by covenant doth run with the land, to give damages to the party aggrieved, and was in a manner appurtenant to the manor.” Coke on Litt. 385.

A question which counsel for the defendant have pressed upon our attention with great earnestness, relates to the nature and extent of the damages recoverable in this suit. The plaintiffs, after alleging in their declaration a "breach by the defendant of its covenant to restore said switch connection and to continue to the covenantees the use of the same, allege damages to Sarah A. Reno and Eugenia M. Little, the owners of the lots, from a depreciation of their permanent and rental value, and also damages to Charles A. Reno and Jacob H. Little, from damage to their business as coal dealers, by reason of the failure of the defendant to transfer from its tracks into their coal yard the coal consigned to them free of switching or transfer charges.

At the trial the plaintiffs were permitted to give evidence to establish both species of damages, and damages of both species are, presumably, embraced in the verdict of the jury, "though in what proportions the evidence furnishes no criterion to determine. It is claimed that this is in substance a misjoinder of actions; that the convenant is several as to the coven mtees, and tint separate actions should have been brought by Reno & Little on the one hand, and the owners of the lots on the other, to recover damages for its breach.

We think that the position taken by counsel grows out of a misconception of the nature of the covenant and of the rules of law applicable to it. While the interests of the several covenantees are variously affected by its breach, the covenant is not for the performance of several duties to each, but of one and the same duty to all. Doubtless if it had been provided for the performance of one duty to Reno & Little and another separate duty to Mrs. Reno and Mrs. Little, it would have been several, and separate actions might have been brought, but such is not the case. It is a mistake to suppose that there is any joinder here of two separate causes of action. The cause of action is one, viz., a breach of the covenant to restore the switch connections and to continue their use to the covenantees. This covenant runs to all .alike and is therefore joint. The different covenantees have several interests, not in the covenant itself, but merely in the subject to which the covenant relates.

The true doctrine applicaCe to this question is laid down by Lord Kenyon in Anderson v. Martindale, 1 East, 497. That was a suit upon a covenant to and with A, his executors, administrators and assigns, and to and with B and her assigns, to pay an annuity to A, his executors, etc., during B’s life. A having died, suit was brought on the covenant by his administrator, although B, the other covenantee, was still living. His Lordship, in holding that the action could not be maintained, said: “ Here is a covenant to two to pay an annuity to one of them ; shall both bring actions for the same interest where only one dpty is to be paid ? Which of them ought to recover for the non-performance of the covenant ? The defendant is only bound to pay the annuity once. This is different, therefore, from the case put by Lord Coke, where the covenant is several for the performance of several duties to each ; there the covenant shall be molded according to the several interests of the parties, and each shall recover for a breach so far as his own interests extend. It has been assumed in the argument for the plaintiff that the covenantees had different interests, but that is not so; the covenant was for the same thing; and though the benefit was only to one of them, yet both had a legal interest in the performance of it ; and therefore the legal interest being jointly during the lives of both, on the death of one of them, survived to the other. If, indeed, the covenant had bem to each by two different deeds,, though for the same duty, there could not have been a joinder in action ; but here the parties claim by the same title, and therefore the law coincides with the justice and convenience of the case.”

In Shephard’s Touchstone, 166, the learned author, following the authority of Slingsby’s Case, 5 Coke, 188, lays down the rule as follows: “ In cases where the covenantees have, or are to have, several interests or estates there, then the covenant is made to and with the covenantees, et cum guoUbet eorum, aut altero eoru/m¡ in this case these words make the covenant several : as if one by indenture demise Black-acre to A and White-acre to B and Green-acre to C, and covenant with them, and every of them, that he is lawful owner of all these acres; in this case the covenant is several. But if he demise to them the three acres together, and covenant in this manner, the covenant is joint and not several.”

In Bradburne v. Botfield, 14 Mees. & W. 559, the proprietors of certain coal mines, who each held certain undivided interests therein, executed a lease thereof, according to their several estates, rights and interests therein, to certain lessees, reserving therein rent to said lessees respectively, and to their respective heirs and assigns, according to their respective estates, rights and interests in the premises, the lessees covenanting with all of said lessees, and each and every of them, and each and every of their heirs, executors, administrators and assigns, to repair the premises and to surrender them in good repair to the lessors, their heirs and assigns respectively, at the end of the term, and to work the mines properly. Suit was brought by a plaintiff who had acquired title from one of the lessors to a moiety of the premises, the breach of the covenant alleged being a non-repair and an improper working of the mines. It appeared that one of the covenantees was still living, and it was held that the covenant was joint and not several, and that the surviving covenantee ought to have brought suit.

Foley v. Addenbrooke, 4 A. & E. (N. S.), 197, was a suit upon certain covenants in a lease, the facts being in most respects similar to those in the case last cited; and the court, holding that the covenant was joint,-say: “We are of the opinion that the demise being joint and the covenants upon which the action is brought entire, and made with both the lessors, the cause of action is joint, and that both the covenantees ought to sue, though, as between themselves, their interests may he separate.”

Many other authorities of like purport might he cited, but the foregoing we think will sufficiently illustrate the rule of law applicable to this question. The covenant here being with all the covenantees,to do a single act or class of acts, is necessarily entire and incapable of severance, and must therefore be held to be joint and not several. In order then to maintain any action upon it, all the surviving covenantees must be joined as plaintiffs, and it follows that all damages arising from its breach, which are recoverable at all, must be recovered in the same suit. Mor does there seem to be any legal obstacle in the way of such recovery. So long as the legal title to the covenant is in all the covenantees jointly, it follows as a necessary consequence that the legal title to all damages resulting from its breach is vested in them. True, the different covenantees are damnified in different proportions, and the damages suffered by Meno & Little, the tenants in possession, are different not only in their amount, but in their nature, from those suffered by the owners of the reversion. That, howevez1, only affects their equitable rights as between themselves in the apportionment of the damages when the same are recovered.

It is uz’ged that great inconvenience arises from this rule in cases like the present, where tliez-e is no criterion in the evidence or in the verdict or judgment, by which it can be determined how much the jury have assessed as the damages of the several parties. It is undoubtedly true, that should any disputes arise between the covenantees themselves, there might be very great difficulty in determining the proportion of the damages recovered which each should be entitled to receive. But we are unable to see how the defendant is in any way interested in the question of such distribution. Its intezests are fully protected when it is ascertained that the damages recovered are no more in the aggregate than it was liable by its covenant to pay, and that the recovery is a bar to any further prosecution. How the damages are to be distributed is a matter with which it has no possible concern.

It is urged that the decision of the Supreme Court in Safford v. Miller, 59 Ill. 205, 215, is not in harmony with the rule above laid down. That was a suit u pon an inj unction bond conditioned for the payment to two obligees of all such damages as they might sustain by reason of the issuing of the injunction. The terms of this condition, as construed by the Supreme Court, limited the undertaking and the liability of the obligors to the damages which the obligees should jointly suffer, and it was accordingly he’d that a judgment based in part upon assignments of breaches alleging damages accruing to the obligees severally could not be sustained. The doctrine of the decision is, not that the obligation was several as to the obligees, so as to authorize suits by each obligee to recover his individual damages, but that such damages were not within the condition of the bond. We perceive nothing either in the decision or the reasoning of the court in any degree conflicting with the conclusions we have reached in this case.

Questions of some difficulty are raised upon the evidence adduced by the plaintiffs to establish Reno & Little’s damages, and the rulings of the court in relation thereto. The evidence tends to show that one Abner Reeves, who died in 1875, was, at the time of his death, the owner of the ten lots embraced in the contract in question in this suit, and twelve other lots adjoining the same on the west. At that time the north half of said twenty-two lots was leased to the Chicago & Alton Railroad Company at a rental of §125 per month, or §1,500 per year. The south half was also rented to the Eureka Coal Company at a rental of §75 per month, or §900 per year. The Chicago & Alton Railroad Company, or its assignee, having surrendered possession of said north half, Reno & Little went into possession of it and paid rent therefor to the heirs of Abner Reeves at the same rate reserved in the lease to said company, and continued to occupy the same and pay rent therefor at that rate until some time in the year 1876, Mrs. Reno and Mrs. Little were two of the heirs of Abner Reeves, and some time during the year 1876 they bought out the other heirs, and thus became the exclusive owners of said lots. After their purchase, Reno & Little remained in possession of the north half as tenants of their wives, and paid them rent therefor at the rate of §100 per month down to the date of the contract with the defendant. After the. death of said Beeves, one Clark became the tenant of the south half of the lots, and continued to occupy the same until the spring of 1881. At the expiration of Clark’s lease, Beño & Little took possession of what remained of the south half, after the sale of the ten lots to the defendant, thus including in their coal yard the twelve lots still owned by their wives, and continued to occupy the same, paying rent to their wives at the rate of §100 per month up to some time in August following, when the switch connections were interrupted. After the switch tracks were removed, they continued to occupy said lots down to June, 1885, when said Little died, but the evidence shows that nó rent was paid by them after August, 1881. It does not appear that they held possession of said lots under any written lease, or that there was any express agreement between them and the owners of the fee fixing any specific term for the tenancy. On the contrary, the evidence shows affirmatively that there was no such lease, and no agreement fixing the duration of said tenancy.

Under these circumstances it seems clear that, at the. time the switch connections were removed, Beño & Little were holding the lots occupied by them as a coal yard as tenants from year to year. Mr. Taylor, in his Treatise on Landlord and Tenant says: “ The ordinary mode of leasing is for a specified term of years ; but if no particular time is limited for its duration, a tenancy from year to ■ year will arise.” And again: Since the time of the Year Books, the courts have treated a general occupation by permission, no time being fixed for its continuance, as a tenancy from year to year, whenever the reservation of rent, or other circumstance, indicated an agreement for an annual holding. A tenancy of this description is not determinable at the end of any current year, unless a proper notice to quit shall have been previously served by the proper party intending to dissolve the tenancy upon the-other ; in default of which the tenancy will run on from year to year until some event happens which, in contemplation of law, destroys it.” Taylor on Land, and Ten., Secs. 54, 55. See also, Ridgely v. Stillwell, 25 Mo. 570 ; Williams v. Deriar, 31 Mo. 13 ; Swan v. Clark, 80 Ind. 57 ; Lesley v. Randolph, 4 Rawle, 123 ; Thomas v. Wright, 9 Serg. & R. 87; Sullivan v. Enders, 3 Dana, 66 ; Boudette v. Pierce, 50 Vt. 212; Hall v. Wadsworth, 28 Vt. 410; Hunt v. Morton, 18 Ill. 75; 4 Kent’s Com. 112.

Reno & Little being tenants of said premises from year to year, had a right to continue in the enjoyment of their tenancy, not merely during the current year but until the tenancy should be terminated at the end of that or some subsequent year by notice duly served on them by their lessors. On the other hand it was within their power to put an end to their tenancy at the expiration of that .or any subsequent year by service of like notice of their lessors. In point of fact the tenancy was not terminated by either party prior to the death of Little, in June, 1885.

The plaintiffs gave evidence showing the damages to Reno & Little’s business consequent upon the breach of said covenant by the defendant, from the date of the final interruption of the switch connections down to the date of Little’s death. It is insisted that they are entitled to recover only such damages as accrued during the then current year, and that in fulfillment of the duty which the law imposes upon a party .injured 'from another’s breach of contract or tort, to make reasonable exertions to render the injury as light as possible, it was their duty to terminate their tenancy at the expiration of said year.

Undoubtedly the legal duty above referred to is reasonable and just. As said by Selden, J., in Hamilton v. McPearson, 28 N. Y. 67, “ The law, for wise reasons, imposes upon a party subjected to injury from a breach of contract, the active duty of making reasonable exertions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this; and if the injured party, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss justly falls upon him.” See 1 Sutherland on Damages, 148, and authorities cited.

As illustrations of the rule, we may refer to persons who are hired for service for a given term, and who are wrongfully discharged. The law imposes upon them the duty to seek other employment, and to the extent that they obtain it, or might do so, their damages, will be reduced. A party claiming damages as a purchaser can recover no more than it would cost him, with reasonable diligence, to supply himself with the same property, by resort to the market or some other source or means of supply. Where a party, whose crops are exposed to injury through the default of another in not building or repairing a fence or in tortiously opening the same, is aware of the fact and the cause, and by a little timely labor and expense can avoid the damage, the law imposes upon him the duty of staying the injury, which was thus avoidable, when he is in a favorable situation to do it, and enforces the duty by confining his redress for the injury which was thus avoidable, to compensation for the necessary and proper means of prevention.

The rule, however, has never been carried to the extent of requiring the injured party to surrender important and valu- ■ able rights, or to take measures which are likely to involve himself in great and irreparable injury, for the purpose of diminishing the liability of the wrong-doer. The law has no such solicitude for the interests of wrong doers as to require innocent parties to submit to any such sacrifice. The result of the various authorities, where the rule is applied, seems to be that it is only where the party entitled to the benefit of a contract can protect himself from loss arising from its breach at an expense which is comparatively trifling, or with reasonable exertion on his part, that he is bound to take measures to prevent the injury and thus lessen the liability of the other contracting party.

In this case the termination by JEteno & Little of their tenancy would, as we may well presume from the evidence, have involved them in loss greatly exceeding that to which they were exposed by the severance of the switch connections between their coal yard and the defendant’s railway. It would have involved the' surrender of a valuable leasehold estate, an estate which was none the less valuable and convenient to them from the fact that their lessors were their own wives who had perfected their title to said lots for the express purpose of furnishing a place for their husbands to carry on their coal business. It would have involved the serious interruption and perhaps the total destruction of a valuable and lucrative business in which they had long been engaged, and in which their labor and capital were invested. It would be carrying the rule to a wholly unwarrantable extent, to require them to submit to sacrifices of this character for the purpose of relieving the defendant from the consequences of a breach of its covenant. We are of the opinion that, under the evidence, the plaintiffs were entitled to recover the damages to Reno & Little’s business resulting from said breach, at least up to the date of Little’s death. There was, therefore, no error in the admission of evidence of such damages.

Some complaint is made of the nature and scope of the evidence introduced for the purpose of establishing such damages, but we think that said evidence is subject to no valid objection, especially when taken in connection with the instructions of the court in which the true measure of damages was laid down, and which the jury must be presumed to have followed.

The court admitted in evidence, against the objection and exception of the defendant, the record in the suit in chancery brought by said covenantees to compel a specific performance of said covenant, and its admission is assigned for error. Said record consists of the bill, answer and replication, and a decree awarding a specific performance of the covenant in accordance with the prayer of the bill; and said record also shows that said decree was afterward affirmed by this court, but that on appeal to the Supreme Court it was reversed and the cause remanded with directions to. dismiss the bill for want of equity, and that in obedience to that mandate said bill was dismissed by the court below at the costs of the complainants. It appears that the counsel for the plaintiffs, in offering said record in evidence, stated to the court that he offered it simply to show that during the pendency of those proceedings the covenantees were trying to have said covenant executed, and that they were acting in good faith in remaining in possession of said premises up to the time the decree was finally reversed by the Supreme Court.

It appears sufficiently from what has already been said, that the facts which this record was offered to prove were wholly immaterial. The covenantees had a clear legal right to remain in possession and enjoyment of said premises during the entire period for which the plaintiffs sought to recover daimages. Their good faith in so doing was not open to question, and their conduct in that behalf was in need of no apology. The record then was immaterial for the purpose for which it was offered, and was in our opinion incompetent as general evidence in the case. After the reversal the decree was to be held for naught, and had no more force and effect, either as a finding of the facts or the law, than if it had never been entered. The bill consisted of mere dec'arations of the complainants, and upon no principle of law could such declarations be received as evidence generally in their favor.

But while we are disposed to hold that the admission of the record in evidence was . error, we are unable to see that the defendant was in any way miterially prejudiced thereby. There was no substantial conflict in the evidence, and the plaintiffs’ case was fully made out, both as to the right of recovery and the damages, by the other evidence. The statements of the bill seem in no material respect to add to or conflict with the case made by the other evidence, except in one particular. The bill alleges that, at the time the switch tracks were finally removed, Beño & Little were in possession of their coal yard under a lease from their wives, dated April 30,1881, for a term of one year from May 1, 1881, to May 1, 1882, at a rental of $3,000 for the year. In so far as the bill stated facts which were proved by the other evidence, its admission in evidence could have done no harm to the defendant. In the particular above mentioned, in which it averred a lease terminating May 1, 1882, it was an admission in favor of the defendant. Under such lease Beño & Little’s tenancy, as well as their right to damages, would have extended no farther than May 1, 1882, and the defendant sought to take advantage of such admission by an instruction which was given to the jury at their instance, that if such lease was proved the plaintiffs could not recover any damages alleged or claimed to have accrued to Reno & Little after that date.

After such full and careful examination of the case as its magnitude and importance have demanded at our hands, we are of the opinion that there is no material error in the record.

The judgment will, therefore, be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    Andrew F. Links v. Leopold Mayer.

      Confession of Judgment-on Warrant in Lease — Unfilled Blanks — Ambiguity — -Presumption as to Evidence — Practice.
    Upon appeal from an order denying a motion by the defendant to vacate a judgment by confession entered under and by virtue of a warrant of attorney contained in a lease, it is held: That certain unfilled blanks in the warrant of attorney create no such material ambiguity as to affect the validity of the instrument; that, as the judgment appears to have been entered in open court and as there is no bill of exceptions showing the contrary, it will be presumed that all necessary evidence was heard to warrant its entry; and that the defendant can not complain of an order of the court below, denying amotion by which he has not been prejudiced.
    [Opinion filed May 18, 1887.]
    Appeal from the Superior Court of Cook County; the' Hon. Elliott Anthony, Judge, presiding.
    Mr. C. M. Hardy, for appellant.
    Mr. L. W. Perce, for appellee.
   Bailey, J.

This is an appeal from an order of the Superior Court denying the defendant’s motion to vacate a judgment by confession. Said judgment was in forcible detainer, and was entered under and by virtue of a warrant of attorney contained in a lease, the plaintiff being the assignee of the lessor. Said warrant of attorney is as follows:

“ And the said party of the second part, do hereby make, constitute and appoint Simon P. Douthart, or any attorney of any court of record,----true and lawful attorney) irrevocably for himself and in his name, place and stead, to enter appearance in any court of record, or before any Justice of the Peace, at any time after any rent is due upon this lease, or after this lease is determined by default, or otherwise, to waive process and the service thereof, and trial bj' jury, or otherwise, and confess judgment of guilty of forcible detainer of the above demised premises, or any part thereof, and for costs of suit, in favor of said heirs,-- — --executors, administrators and assigns, and to release all errors that may occur or intervene in such proceeding, and particularly in the waiving of process and service thereof, and trial by jury, or otherwise, and in the entering up of said judgment, and the issuing of the writ of restitution thereon, and to stipulate that no writ of error or appeal shall be prosecuted from the said judgment nor any bill in equity filed, nor any proceeding of any kind taken, in law or equity, to interfere in any manner w'ith the operation of said judgment or the writ of restitution issued thereon, and to consent that a writ of restitution may be immediately issued upon said judgment.”

The lease containing the warrant of attorney was drafted by filling up a printed blank, and by error of the draftsman, two blank spaces were left unfilled as above indicated. It is insisted that, by reason of said blanks, said warrant of attorney is so uncertain as to be void or inoperative. We are of the opinion that such is not the case. The second blank, it is said, leaves it uncertain as to the party in whose favor judgment is authorized to he entered. A consideration of the entire instrument will show, we think, that no such uncertainty really exists. If we take it just as it reads without attempting to fill the blank by any species of intendment, it appears that the attorney thereby appointed was authorized to confess a judgment of guilty of a forcible detainer of the demised premises in favor of “said heirs, executors, administrators and assigns.”’ As applicable to an assignee of the lessor, there could be no possible ambiguity, were it not for the fact that in the preceding portions of the lease the “ heirs, executors, administrators and assigns ” of the lessee are mentioned as well as those of the lessor. This, however, can scarcely be said to raise an ambiguity, when the entire scope and intention of the instrument are considered. It manifestly was within the contemplation of the parties to fix by their contract the duties and liabilities of the lessee, not to liis own assignees, but to the lessor, and those who, as his representatives, might become entitled to the revision. Mo one reading the instrument can doubt for a moment that the representatives of the lessor were the parties referred to. Any other interpretation would be an absurdity.

Very much the same may be said of the apparent ambiguity created by the other blank. A fair and natural interpretation of the instrument as it reads is, that it makes, constitutes and appoints Simon P. Douthart, or any other attorney, etc., an attorney in fact of the lessee, and authorizes such attorney to enter the lessee’s appearance in any court of record and waive process and confess judgment against him. The only other interpretation possible is that the parties undertook by their lease to constitute Simon P. Douthart, or some other attorney of a court of record, an attorney in fact for himself, and to authorize him, in his own name, place and stead to enter his own appearance in court and confess a judgment, etc. It is scarcely necessary to say that the latter interpretation is so absurd that no one can for a moment adopt it as properly expressing the intention of the parties. We are of the opinion that the blanks in the warrant of attorney create no material ambiguity, and that there is no want of that clearness and explicitness in the language employed which is essential to the validity of the instrument. The following cases may be referred to as supporting the views we have expressed. Sweezey v. Kitchen, 80 Pa. St. 160; Vliet v. Camp, 13 Wis. 198.

We have been inclined to entertain some doubt as to whether a confession of judgment by virtue of a warrant of attorney can properly be entered in an action of tort before suit brought. See Burkham v. Van Saun, 14 Abb. Pr. (N. S), 163. Confessions of judgment in actions of tort are not within the provisions of our statute, which only applies to cases where there is a debt bona file due, and upon such examination as we have been able to make, we have been unable to discover any common-law authority for such confessions where no action has been commenced. But as this question has not been raised or argued by counsel, we are not disposed to consider it in our decision of this case.

It is argued that the record fails to show that sufficient proof was made of the execution of the lease, or of the attornment of the defendant to the plaintiff as the assignee of the reversion. It is sufficient to say that the judgment appeal's to have been entered in open court, and as there is no bill of exceptions showing the contrary, it will be presumed that all necessary evidence was heard to warrant the entry of the judgment. The same presumptions will be indulged in to support the judgment in this case as in case of any other judgment of a court of superior jurisdiction. Bush v. Hanson, 70 Ill. 430; Osgood v. Blackmore, 59 Ill. 261.

Complaint is made of the order of the court below denying the defendant’s motion to strike from the files a stipulation bearing his signature, by which it was agreed that the appeal to this court should be withdrawn and the order allowing the same vacated and set aside. Said motion was sup-23,orted by affidavits tending to show that the defendant’s signature to said stipulation was obtained, in the absence of his counsel, by false and fraudulent representations. However the stipulation may have been obtained, we can not perceive how the defendant has been prejudiced by the order denying his motion. The stipulation seems never to have been enforced or acted upon. Ho attempt was made in the court below to have the order allowing the appeal vacated, but the record has been brought to this court, where the -plaintiff has joined in error, and the case has been heard upon its merits. The defendant having thus obtained the full benefit of his appeal, he can not be said to have been in any way affected prejudicially by the stipulation.

We perceive no error in the record and' the judgment will therefore be affirmed.

Judgment affiomied.


author: Per Curiam.

text:
    Catharine McNichols v. Jacob Kettner.

      Husband and Wife — Agency of Husband Respecting Wife's Property— Estoppel — Fraud—Mechanics' Lien.

    1. Where a married, woman holds her husband out to the world as her agent or allows him so to act with reference to her property as to induce the belief that he acts as her agent with reference thereto, and others act upon such belief, she is estopped to deny that he acted as her agent.
    2. Upon appeal from a decree, -declaring a mechanic’s lien against a lot on account of a cottage built thereon under a written contract executed by the owner’s husband, it is held: That certain payments made by the defendant were of her own money; and that under all the circumstances in evidence she is estopped to deny the agency of her husband.
    [Opinion filed May 18, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Gwyee Gabeett, Judge, presiding.
    Messrs. M. A. Robke & Soe, for appellant.
    Messrs. Babeüm, Rubees & Ames, for appellee.
   Per Curiam.

This is an appeal from a decree in favor of appellee declaring a mechanic’s lien against a certain lot owned by appellant, and upon which appellee built a cottage under a written contract made with appellant’s husband.

The petition for lien alleges that the contract was made by James MeNichols, acting as agent for Catharine MeNichols, which contract is as follows:

“Chicago, February 23, 1883.

“I, James MeNichols, agree and will pay Jacob Kettner the sum of eight hundred dollars (8800) for carpenter work, including plastering, painting and glazing, for cottage 22x44 to be situated on Nixon Street, according to plan. I agree to pay three hundred dollars (8300) cash down, and five hundred dollars (8500) on or before August the 1st, 1883.

“Jambs McNichols.”

It appears from the evidence that James MeNichols and Catharine" MeNichols, the appellant, went to the house of appellee and wanted to learn how much a cottage of the size they desired would cost. He told them they must give him some kind of drawing that he could figure on, and they went away, and the next morning the husband, James MeNichols, came back and had marked out a sketch showing three large rooms and three bed-rooms and a pantry and a closet, and after said sketch appellee drew out the plan and gave an estimate of what the work could be done for. Appellee testifies that before the contract was signed, appellant came to him and told him she was not flush of money and “ if you do not do it we never will have a roof over us; she says so long as Henry is home he earns 89 a day and we will be able to pay you 8100 a month. Henry earns 89, the boy 85 and the. other boy 84; so I asked her how much money she could advance; she said only 8200; I told her, Mrs. MeNichols, I could not lay out the plans because I am no money-lender, and I can not get that much on credit. I asked her if she could pay 8300, I would try to arrange it — well she said yes, and she borrowed another 8100, I believe.”

Appellant does not, in her testimony, deny having the conversation above set out with appellee, but the defense is rested upon the 'ground that the written contract was signed by the husband, and does not purport to bind her. It appears from the evidence that the source from which the money to pay for the building was to come, as understood by all parties, was from the earnings of the son, Henry, who was getting §9 per day for his labor.

He had furnished the money to pay for the lot and the deed was taken to the appellant, his mother, as it would appear, as a gift to her. The contract was drawn up by'Kettner, and the son Henry signed James McNichols’ name to it, in his, said James’, presence and with his assent and by the direction of appellee; and at the time, it was said by appellee that he understood Henry was going to pay. The contract was signed at the McNichols house, which was across the street from where the cottage was built, and Mrs. McNichols was not present when it was signed. 8he, however, knew there was a contract, and being across the street, she saw the work going on and was repeatedly at the building during the progress of the work and testifies that appellee at one time objected to her talking to his men about the work and said he wanted nothing to do with a woman.

Appellee did not know in whom the title to the lot was when the contract was made, but it is very apparent that he supposed it was in the husband and had him sign the contract for that reason. It is also apparent that appellant knew the terms of the contract for she made all the payments that were made upon it from money given to her by her son. It is argued that she did not pay her own money and that she was only the agent for the payment of the money. With that view we can not agree. The lot was hers. It does not appear that any other person made claim to any legal interest' in it. The building was a betterment to her lot, and so far as appears from this record there was no lease or contract between her son or husband and herself, and therefore the building became her absolute property as soon as it went upon her lot.

The money which her son gave her to pay upon the building must, under such circumstances,1 be regarded as a gift to her, as the lot was, and when she paid it out upon the contract, she paid it not as her husband’s money or her son’s money but as her own money, which she was expending to improve her own property; under all the circumstances we think that appellant is estopped to deny that her husband acted as her agent in making the contract.

She permitted him to interfere about an improvement which the evidence shows she wanted made upon her lot. She negotiated with appellee about the cost, and the amount of the installments to be paid for the work; she actually made all the payments that ever were made for the work, and so far as she paid, seems to have done so in accordance with the contract". Her husband does not seem to -have had anything further to do about the matter than to participate in the preliminary negotiations, and to have signed the written contract.

To permit appellant now to defeat appellee from getting his }Day would be to allow her to profit by this interference of her husband, which she knew of and acquiesced in, and thus commit a fraud upon appellee who in good faith built the cottage upon her lot in which she and her husband now live.

This case in this feature of it is much like the case of Anderson v. Armstead, 69 Ill. 452, and the equitable rule there laid down is applicable here. Other errors assigned, it is not necessary to discuss. The decree of the Superior Court was proper and must be affirmed.

Dewee affirmed.


text:
    Sallie A. Young et al. v. Susan C. Wittenmyre, Administratrix, etc.

      Administration — Distribution of Ancillary Administration — Discretion —Estoppel—Resort{to Real Estate to Pay Debts.

    1. The personal estate of an intestate is the primary fund for the payment of debts and, as a general rule, must be first exhausted before real estate can be made liable.
    2. Where there are two administrations of a single estate, one at the place of the domicile of the testator or intestate and the other in a foreign jurisdiction, whether the courts of the latter will decree distribution of the assets collected under the ancillary administration or remit them to the jurisdiction of the domicile, is not a question of jurisdiction but of judicial discretion, depending upon the circumstances of the particular case.
    3. In the case presented, it is held; That the judgmentof the Iowa court directing a distribution in that State was within its discretion and can not be called in question here; that the personal estate thus disposed of can not be treated in any sense as a part of the estate to which resort may be had for the payment of claims in -this State; that the heirs are estopped from calling in question said distribution, they having participated in the proceedings and received their respective shares of money distributed; that bj the distribution the share retained by the widow ceased to be assets of the estate; and that, in the absence of personal estate within the reach and control of the domiciliary administration for the payment of claims, a resort to the real estate becomes necessary and proper.
    [Opinion filed May 18, 1887.]
    Appeal from the Probate Court of Cook County; the Hon. ‘ J. C. Knickerbocker, Judge, presiding.
    Messrs. Fillmore Weiglep and Bobert L. Lyons, for appellants.
    Decedent had a homestead here which appellee seeks to retain, and if distribution was made of the personal property, it should have been made according to the laws of Illinois, the place of domicile, and not according to the laws of Iowa. The principal administration was in this State, and the administration in Iowa was auxiliary merely.
    The doctrine is that the succession to personal property is governed by the law of the actual domicile of the intestate at the time of his death, no matter what was the actual situs of the property at the time of his death. Russell v. Madden, 95 Ill. 485.
    Administration .commenced- upon the assumption that deceased was a citizen of Maine and not a citizen of Ohio, must be closed upon the same assumption, and distribution must be made according to the laws of Maine and not according to the laws of Ohio. Record v. Howard, 58 Maine, 225.
    It is the duty of the Probate Court, having in hand the auxiliary administration, to remit the assets within its jurisdiction and not needed for debts and legacies within the State, to the principal administration for distribution, where all interest can be fully and properly represented and legal justice be done to all. Probate Court v. Kimball, 42 Vt. 320; Story’s Conflict of Laws (8th Ed.), Secs. 481, 518; Fay v. Haven, 3 Met. 109; Jennison v. Hopgood, 10 Pick. 79.
    Messrs. Montgomery & Smith, for appellee.
    It is submitted that the order of discharge, entered January 25, 1881, by the Circuit Court of Appanoose County, is con-c'usive as to the Iowa administration, and that if any of the assets surrendered by the final report are at any time hereafter collected, appellee can be called to an account, if need be, in that administration. Jennison v. Hopgood, 10 Pick. 79, 100, cited by appellants; Clark v. Blackington, 110 Mass. 369.
    The doctrine is uniform that the estate can be distributed and settled by the court having the ancillary administration. 3 Redfield on Wills, 27; Mackey v. Coxe, 18 How. 100; Carmichael v. Ray, 5 Ired. Eq. 365.
    “ The tribunal in which the ancillary administration is pending is not, however, bound in all cases to order the residuum of the estate to be transmitted to the country of the original administration.” 3 Williams on Executors, 1767.
    It is not conceded that in any event does the law and practice in this State require an inventory of assets situated in a foreign State.
    “ As administration extends only to the assets of the intestate lying within this State, it would seem to follow that such real and personal property as lies beyond the limits of this State need not be inventoried.” Jones & Cunningham’s Pr. 37, citing Judy v. Kelley, 11 Ill. 211.
   Bailey, J.

This is an appeal from an order of the Probate Court for the sale of real estate by an administratrix for the payment of debts. On the 4th of January, 1879, William Wittenmyre, a resident of Cook County, died intestate, leaving him surviving the appellee, his widow, and Sallie C. Young and Charles A. Wittenmyre, two of the appellants, his children and only heirs at law. The estate of said intestate at the time of his death consisted of certain real estate situate in said County of Cook, and certain personal property,consisting chiefly of a stock of merchandise, then at Appanoose County, in the State of Iowa. The appellee was appointed administratrix of said estate by the Probate Court of Cook County, and afterward filed her inventory, showing that no personal property had come to her hands as such administratrix except an open account for §60, which was afterward filed in said court as a desperate claim. A widow’s award of §2,080 was allowed by said court, and the administratrix thereupon, after presenting her report showing a deficiency of personal assets, filed her petition for the sale of said real estate for the payment of said award, together with a claim of §75 proved against the estate, and the cost of administration, estimated at §250. During the pendency of the proceedings, by agreement between said widow and heirs, the widow’s award was by said court reduced and fixed at §1,500, and the cause coming on to be heard on pleadings and proofs, the court, after charging the administratrix with certain moneys which had come into her hands from various sources in this State, found the deficiency of personal estate to be §1,030, besides interest and the costs of administration, and ordered the sale of said real estate for the payment of the same.

It appears that the appellee, after her appointment as administratrix by the Probate Court of Cook County, took out letters of administration from the proper court of Appanoose County, in the State of Iowa, and proceeded under that appointment to administer upon the personal estate of her intestate in that State. The administration produced, after paying all claims presented in that State and expenses, the sum of §2,850.09, which sum was, under the direction of the Iowa court, distributed to the said heirs and widow of said intestate, each receiving the sum of §950.03. Such final distribution, having been reported to said court, was approved and the administratrix ordered discharged. «

It is urged that as sufficient personal estate came into the hands of the appellee in the Iowa administration to pay all claims in this State, there is no warrant for the sale of real estate for their payment. It is true that personal estate is the primary fund for the payment of debts, and, as a general rule, must be first exhausted before real estate can be made liable. Sutherland v. Harrison, 86 Ill. 363. Here, however, all the personal estate was in a foreign jurisdiction and was administered upon there, and the question is whether it was obligatory upon the courts of that jurisdiction, and of the administratrix acting under their direction, to remit the surplus remaining in that jurisdiction to this State for the payment of debts here, instead, on completing the administration, by paying the money over to the distributees of the estate.

The rule to be derived from the authorities seems to bo, that where there are two administrations of a single estate, one in the place of the domicile of the testator or intestate, and the other in a foreign jurisdiction, whether the courts of the lafter will decree distribution of the assets collected under the ancillary administration or remit them to the jurisdiction of the domicile, is not a question of jurisdiction but of judicial discretion, depending upon the circumstances of the particular case. Harvey v. Richards, 1 Mason, 380; Despart v. Churchill, 53 N. Y. 192; Parsons v. Lyman, 20 N. Y. 103; In re Hughes, 95 N. Y. 55; Wright v. Phillips, 56 Ala. 69; U. S. v. Cox, 18 How. 100; Carmichael v. Ray, 5 Ired. Eq. 365; 3 Redfield on Wills, 27. This is of course subject to the rule that personal property, wherever administered upon, is distributable according to the law of the decedent’s domicile, but this qualification is unimportant in the present case, since the distribution made by the Iowa court was in accordance with our laws.

Hnder the rule above stated, it was a' matter wholly dependent upon the discretion of the Iowa court whether the money remaining in the hands of the administratrix after the satisfaction of all claims in that State, should be distributed under its direction and control, or be remitted to this State for distribution here. That court saw fit in the exercise of its discretion to direct a distribution there, and its judgment to that effect is conclusive and can not be called in question here. The personal estate thus disposed of must be regarded as having been lawfully administered upon and distributed, and it therefore can not be treated in any sense as a part of the estate to which resort may be had for the payment of claims in this State. There being then no personal estate within the reach or control of the domiciliary administration for the payment of claims, a resort to the real estate for that purpose becomes necessary and proper.

But there is another reason why the appellants can not be permitted to call in question the distribution by the Iowa court. Hot only were they present by their counsel taking part in the proceedings, but they received and still hold then-respective shares of the money distributed. By the plainest principles of equity and natural justice they should be estopped to call in question the propriety of the proceedings by which-said distribution was made to them. They can not be permitted to attack a judgment and partake of its fruits at the same time. Hor can they hold and enjoy their shares and at the same time insist that the share retained by the appellee as a widow of the intestate, should still be treated as personal assets in her hands subject to the payment of claims. By the distribution the share retained by the widow ceased to be assets of the estate and became hers in her own right, and she can no longer be called upon to account for it.

Some complaint is made by both the appellants and the appellee as to various of the rulings of the court below in stating the account of the administratrix for the purpose of arriving at the deficiency of personal assets. As to many of these items the evidence is conflicting and in some respects unsatisfactory, but we find no grounds for dissenting from the conclusion reached by the court below. It will be of no avail for us to analyze the evidence in detail, and we therefore content ourselves with saying, in relation to these as well as various other points raised in the arguments of counsel, that we find no error in the record. The decree will, therefore, be affirmed.

Decree affirmed.


author: McAllister, P. J.

text:
    Chicago, Burlington & Quincy Railroad Company v. Herman Flint.

      Personal Injury — Action against Railroad Company to Recover Damages —Instructions—When Great Accuracy is Required — Contributory Negligence — Intentional Mischief.

    1. Where the evidence is so closely conflicting that it would support a verdict for either party, great accuracy in the instructions is indispensable.
    2. It is well settled in this State that, in order to recover for a personal injury on the ground of mere negligence of the defendant as distinguished from a wilful tort or intentional wrong, the party injured must be in the exercise of ordinary care. But it seems that the plaintiff, although guilty of a want of ordinary care, may recover if the act of the defendant was, under the circumstances, equivalent to intentional mischief.
    8. In an action to recover damages for a personal injury alleged to have resulted from the negligence of the agents of the defendant, a railroad company, in running a train against the plaintiS while on its right of way to take passage on one of its trains, it is held: That certain instructions given for the plaintiff were inaccurate and misleading; that certain instructions asked by the defendant were improperly refused; and that the evidence of contributory negligence is not such as would justify a refusal to remand the cause for a new trial.
    [Opinion filed May 18, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Statement by McAllister, P. J. This is an appeal by the O., B. & Q. E,. P. Co. from a judgment recovered against it by appellee Flint in the sum of §10,000 damages, besides costs, for a personal injury to the latter occasioned March 18,1885,'and, as it was alleged, through the negligence of the former, resulting in the loss of appellee’s arm.
    The case shows that the defendant was and for many years previously had been operating two main tracks running out of the City of Chicago in a westerly direction, crossing Western Avenue (a north and south street), in the western part of said city, and then 800 feet west of said avenue, crossing the tracks of the C., C. & I. C. Co., which last mentioned place was known as the C., C. & I. C. crossing; that at that crossing the defendant had erected a station for receiving and discharging passengers, at which all the regular trains were accustomed to stop. It appears that aside from said Western Avenue there were no improved streets in the neighborhood' of said station; that from said avenue to the station there was between the two said main tr.acks a space nine feet and four inches wide, upon which, in bad weather or seasons of the year and more or less at all times, persons going to and from said station had for years been in the habit of walking, but the evidence tended to show that the, way was a dangerous one for travel; that if trains going in opposite directions should pass there at the' same time the space between the cars would be only five feet and a half, or thereabouts; that the tracks were so located here with reference to side tracks to the stock yards, they were subject to almost a constant use, and such an occurrence was liable to, happen at frequent intervals. It also appearéd that from said Western Avenue to said station there were upon the north and south side of said main tracks respectively, pathways which were suitable and convenient at all seasons, and which were entirely safe.
    The evidence shows that Flint, the plaintiff below, had been in the habit of taking defendant’s cars at said station to go eastward into the city to his work and return, almost daily for two years; that he was entirely familiar with the locality at and about said station; that at the time in question he came upon said Western Avenue toward evening, but while it was clear daylight, for the purpose of taking a train which he had been accustomed to take to go eastward to his place of work; that when he arrived at the place where defendant’s main tracks cross Western Avenue, as aforesaid, the train he had intended to take had already been gone some ten minutes, but not being then aware of that fact, he left said avenue to go to the station, walking hurriedly. But instead of taking one of said pathways outside the main tracks he took that aforesaid between them. While he was so passing, a freight train of eleven cars was coming east on the south main track and passing said station. He, in order to be clear of that train, without looking behind him, changed his course up in close proximity to the north main track, and, there being then a train of freight cars which had been backed from the stock yards and was then running westward on said north track, he was struck in the back by one of the latter and thrown under the other track so far as to have his arm crushed. There was some slight evidence, but enough to go to the jury, that said train upon the north track was running faster than the rate of speed allowed by the city ordinance, and the evidence shows that there was a brakeman on the west end of the train who saw plaintiff a considerable distance away and that he was exposing himself to a danger of which he did not seem aware; that the brakeman, instead of giving the signal to stop the train, called loudly to plaintiff-, but which the latter from some cause did not hear. There was no evidence tending to show that the relation of carrier and passenger then existed between the parties.
    The court, on behalf of the plaintiff, gave to the jury the following instructions:

      First. “ The court instructs the jury, that if they find from the evidence in this case that the defendant bv itself, or by its agent, ran its locomotive engine and train of freight cars against the defendant as alleged in the declaration, from which the defendant received the injury alleged in the declaration, and that said train at the time said injury was received, was being run by the defendant, or its agents, within the incorporated limits of the City of Chicago at a rate of speed prohibited by an ordinance of said city, then the jury are instructed that the defendant is liable for all damage done the plaintiff, unless you shall find from the evidence in the case that the negligence of the plaintiff, if you shall find that he was negligent, was not slight as compared with the negligence of the defendant, which was gross.”

      Seventh. “ The court further instructs the jury, that if a railroad company has created extra danger it is bound to use extra precautions, and the precautions to be adopted must be adequate to insure against such extra danger the safety of every passenger who exercises ordinary and reasonable care.” Eighth. “The court further instructs the jury, that the rule that any person who goes upon a railroad track, incautiously or without using all reasonable caution to escape injury, assumes the hazard, and if injury ensues is without remedy, has no application to a case where, by the arrangement of the company, if such is proved by the evidence to be the fact, it is made necessary for passengers to use its tracks or road-bed in reaching its depot, in order to take its passenger trains.”
    The defendant’s counsel requested the court to give the following instruction, which was refused:
    “ The jury are instructed that the plaintiff was hound to know that the space between the defendant’s north and south main track was a place of danger, and that the plaintiff, while walking between said tracks, was bound to use a degree of care commensurate with the danger, and that it was his duty to use his senses both of sight and hearing to learn of the approach of any trains on said track.
    “And if the jury believe from the evidence that the plaintiff by the exercise of ordinary care and caution could have either seen or heard the train which struck him in time to have avoided the accident, then the plaintiff can not recover and their verdict should be for the defendant.”
    The proper exceptions were taken on behalf of defendant which present the questions necessary to a decision of the case.
    Messrs. Dexter, Herrick & Allek, for appellant.
    The evidence does not sustain the finding that the plaintiff exercised ordinary care.
    The Supreme Court and this court have repeatedly set aside verdicts in cases analogous to this case on the ground that the plaintiff had not shown that he was in the exercise of ordinary care. L. S. & M. S. R’y Co. v. Hart, 87 Ill. 529 ; I. C. R. R. Co. v. Hall, 72 Ill. 222; I. C. R. R. Co. v. Godfrey, 71 Ill. 500 ; I. C. R. R. Co. v. Hetherington, 83 Ill. 510 ; Austin v. C., R. I. & P. R. R. Co., 91 Ill. 35; L. S. & M. S. R. R. Co. v. Blanchard, 15 Ill. App. 582; L. S. & M. S. R. R. Co. v. Hunt, 18 Ill. App. 288.
    “It is the duty of every person about to cross a railroad track to approach cautiously and endeavor to ascertain if there is present danger in crossing, as all persons are hound to know that such an undertaking is dangerous, and that they must take all proper precautions to avoid accidents in so doing, otherwise they can not recover for injury thereby received.” L. S. & M. S. R’y Co. v. Hart, 87 Ill. 529.
    That this applies with increased force to persons walking laterally upon the track, although lawfully there, has been repeatedly held in this State. L. S. & M. S. R’y Co. v. Hart, 87 Ill. 529; I. C. R. R. Co. v. Hall, 72 Ill. 222; C. & N. W. R. R. Co. v. Sweeney, 52 Ill. 525; I. C. R. R. Co. v. Godfrey, 71. Ill. 500; Austin v. C., R. I. & P. R. R. Co., 91 Ill. 35; L. S. & M. S. R. R. Co. v. Blanchard, 15 Ill. App. 582.
    It is well settled that to entitle the plaintiff to recover it is not sufficient to show that at the time of the accident the train was running at a prohibited rate of speed. It must also be shown and the jury must find that the accident happened by reason of the prohibited rate of speed. C., B. & Q. R. R. Co. v. Dvorak, 7 Ill. App. 555 ; C., B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C., B. & Q. R. R. Co. v. Notzki, 86 Ill. 455 ; C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; P., P. & J. R. R. Co. v. Siltman, 67 Ill. 72; T., W. & W. R. R. Co. v. Jones, 76 Ill. 311.
    Messrs. Btam, Pabkhubst & Weinscheitk, for appellee.
    We claim that under the facts in this case the plaintiff did occupy the relation to the defendant of “ passenger,” and the defendant was subject to a corresponding duty toward him. To create this relation it is not necessary that a person should buy a ticket. He may be a passenger and not have a ticket. The relation of “ passenger ” may exist and the party may not have purchased a ticket or boarded a train. Does not this relation exist between a railroad company and every person who enters the company’s depot for the purpose of taking its cars? A railroad company can not free itself from all duty and obligation to the traveling public till its trains are actually entered, and then free itself of duty as soon as its passengers have left its cars. In our judgment this relation exists as soon as a person who intends taking passage by cars enters upon the exclusive premises of the company, at the place and in the manner provided by the company for its passengers. Osborne v. Union Ferry Co., 53 Barb. 629 ; Van Schaick v. Hudson R. R. R. Co., 43 N. Y. 528-537; Drew v. Sixth Av. R. R. Co., 26 N. Y. 49; Northup v. R. R. Pass. A. Co., 43 N. Y. 516; Gordon v. G. S. & N. R. R. Co., 40 Barb. 546.
    Whether its patrons are in its depot, on. its platform, or on its usual approaches to its depou or its cars, the company is bound to afford the traveling public protection from its own acts, at least, provided they are exercising ordinary and reasonable care.
    Railway companies are bound to keep in a safe condition all portions of their platforms and approaches thereto, to which the public do or would naturally resort, and all portions of their station grounds where passengers, with a view to take passage on their cars, would naturally or ordinarily be likely to go. McDonald v. Chicago, etc., R. R. Co., 26 Iowa, 124; Chicago, etc., R. R. Co. v. Wilson, 63 Ill. 167; Martin v. G. N. R’y Co., 81 Eng. Com. Law, 179; Burgess v. G. W. R’y Co., 95 Eng. Com. Law, 923.
    Although some slight errors may have intervened in the giving or refusing of instructions, the verdict of the jury should not be set aside on account of such slight errors, which, as is readily seen, did not affect the justice of the decision. City of Chicago v. McDonough, 112 Ill. 85; Hall v. Sroufe, 52 Ill. 421; Schwarz v. Schwarz, 26 Ill. 81; C., B. & Q. R. R. Co. v. Dougherty, 110 Ill. 521; Ritzman v. People, 110 Ill. 363; Baird v. Trustees of Schools, 106 Ill. 657.
   McAllister, P. J.

We have examined the evidence in this case with much care, and find that upon all the essentials of a recovery it was closely conflicting, and left in such doubt that a verdict for the defendant would not have been subject to have been set aside as unsupported by the evidence. It is the well established rule of the Supreme Court in such a case, that unless each instruction to the jury given on behalf of the plaintiff, if the successful party, stated the law with accuracy and was free from all error calculated to mislead the jury, the judgment must be reversed and the cause sent back for a new trial. C. & A. R. R. Co. v. Murray, 62 Ill. 326; Volk v. Roche, 70 Ill. 297; T., W. & W. R’y Co. v. Moore, 77 Ill. 217; Cushman v. Cogswell, 86 Ill. 62; T., W. & W. R. R. Co. v. Grable, 88 Ill. 441; American Ins. Co. v. Crawford, 89 Ill. 62; Wabash R’y Co. v. Henks, 91 Ill. 406; Ruff v. Jarrett, 94 Ill. 475 ; Stratton v. Cent. City H. R’y Co., 95 Ill. 25; Steinmeyer v. People, 95 Ill. 383; Swan v. People, 98 Ill. 610.

The first instruction given for the plaintiff and set out in our statement of the case was inaccurate and calculated to mislead the jury. 1. It contains no hypothesis in any plain, intelligible language that the injury was received in consequence of the excessive rate of speed at which the train was running. 2. It submitted to the jury a question of law, viz., the construction of the ordinance. 3. It improperly assumed that the defendant was guilty of gross negligence — a point in dispute upon the trial.

The seventh instruction directed the jury that if a railroad company has created extra danger it is bound to use extra precautions, and the precautions to be adopted must be adequate to insure against such danger the safety of every passenger who exercises ordinary and reasonable care. This instruction was framed so as to be presented in an abstract form. But it must have been understood by counsel for the plaintiff that the jury would never suppose that the court was directing them concerning any other case than that on trial. So. that the jury might naturally conclude from the language employed, that the court was of opinion that the defendant had created an extra danger; that the relation of carrier and passenger existed between the defendant and plaintiff, and that the latter was in the exercise of ordinary care at the time of the injury. It seldom happens that so much fiction underlies so brief an instruction. We can find in the evidence contained in the record in this case, no proof that the defendant had created an extra danger, or of facts tending to show that the relation of carrier and passenger existed between the parties at the time in question, and if there had been such a relation, there is no law in this State that 'constituted the defendant an insurer of the safety of its passengers. By the common law, a common carrier is an insurer of the safety of goods but not of passengers. Then the last clause is an assumption that the plaintiff was in the exercise of ordinary care when the proof tended to show that he was not.

By the next instruction for plaintiff the jury were told that the rule that any person who goes upon a railroad track incautiously or without using all reasonable caution to escape injury, assumes the hazard, and if injury ensues, is without remedy, has no application to a case where, by the arrangement of the company, if such is proved by the evidence to be the fact, it is made necessary for passengers to use its tracks or roadbed in reaching its depot, in order to take its passenger trains. Now, that direction was calculated .to impress the jury with the idea that in this case it was not incumbent upon the plaintiff to exercise any degree of care for his personal safety, if by the situation and circumstances it was necessary for passengers to go upon defendant’s road-bed in reaching the depot. The evidence shows that the respective pathways on the north and south sides of the main tracks, between Western Avenue and the depot, were located upon the outer edge of the foundation upon which the tracks were laid, and might, therefore, be considered as being in a certain sense a part of the road-bed, but that such pathways were in a passably good condition, and so situated as respected the tracks, as to be entirely safe for pedestrians to travel upon. And it appears that the plaintiff, although familiar with the locality, elected not to take either of said ways outside the tracks, but to go upon the space between them, which exposed him to danger and the misfortune which -overtook him. Upon that point the defendant’s counsel asked the court to instruct the jury, that the plaintiff was bound to know that the space between the defendant’s north and south main tracks was a place of danger and that he was bound, while walking between said tracks, to use a degree of care commensurate with the danger, and that it was his duty to use his senses both of sight and hearing, to learn of the approach of any train on said tracks.

But the court refused to so instruct, and the same propositions were not embodied in any instruction that was given. In view of the theory of plaintiff’s right of recovery, under which his case was submitted to the jury by the instructions on his behalf, the defendant was clearly entitled, under the law as settled in this and most of the other States, to have that instruction given, and it was error to refuse it. We are of opinion that for the errors pointed out, the judgment must be reversed. But counsel for the appellant urge that the evidence shows plaintiff to have been guilty of such a degree of contributory negligence that he is precluded from a recovery, wherefore the case should not be remanded. The evidence tends to support the theory that, although the plaintiff was negligent in exposing himself to danger, yet that his situation was observed by one of the servants of defendant upon the train which was run against him, in time for him to have caused the train to be stopped and thus to have avoided the injury by the exercise of ordinary care. The plaintiff was not a trespasser. He was upon defendant’s right of way for a purpose of business connected with the defendant, viz., to take passage upon one of its trains.

We are unable to say that the case, in that aspect, was such upon the evidence as to justify us either in affirming, notwithstanding the errors adverted to, or in refusing to remand for a new trial. There seem to he two classes of decisions applicable to such a case as this, where the party injured has been guilty of contributory negligence. One class holds that if he has been guilty of such negligence he can not recover without showing an intention, actual of constructive, on the part of the defendant to inflict the injury. Pennsylvania Co. v. Sinclair, 62 Ind. 301. In this State the doctrine is well settled, that in order to recover on the ground of mere negligence of the defendant as distinguished from a wilful tort or intentional wrong, the -party injured must be in the exercise of ordinary care. C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512. And yet it is intimated in that case that there might be a recovery although plaintiff’s intestate was guilty of negligence which exposed him to the risk of injury, if the servants of defendant having charge of the train after becoming aware of his danger could, by the exercise of ordinary care and diligence, have avoided the injury, and they failed to exercise such care and diligence. It may be that what was said should be understood as meaning that such neglect, under certain circumstances, would, in contemplation of law, be equivalent to intentional mischief, as was held in Kenyon v. N. Y. C. R. R. Co., 5 Hun, 479, where a child two years and a half old was seen on the track by the engineer in ample time to have stopped the engine, but was run over. The English doctrine is, that though the plaintiff may have been guilty of negligence and although that negligence may, in fact, have contributed to the accident, yet, if the defendant could, in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him. Cooley on Torts, 675; R. & D. R. R. Co. v. Anderson, 31 Gratt. 816, and authorities cited; L. S. & M. S. R. R. Co. v. Miller, 25 Mich. 277; Brown v. H. & St. J. R. R. Co., 50 Mo. 461; Whart. on Keg., Sec. 389 (a), and cases in notes.

We are inclined to the opinion that if the plaintiff was guilty of want of ordinary care which directly contributed to the injury, he will be prevented thereby from a recovery in the aspect of the case we are now considering, unless he shows that the act of running the train against him, was, under the circumstances, equivalent to intentional mischief on the part of defendant’s agents and servants in charge of the train.

The judgment of the court below will be reversed and the cause remanded.

Judgment reversed.