text:
    C. E. Rinard, Administrator, Appellant, v. Susan Lasley, Appellee.

      Gifts—how of certificates of deposit may Toe made. The gift of a promissory note payable to the order of the donor or of a certificate of deposit or of any such chose in action, may be made and executed by mere delivery without endorsement.
    Proceeding by citation. Appeal from the Circuit Court of Wayne county; the Hon. Jacob R. Creighton, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 3908.

      Creighton & Thomas and Lasley & Lasley, for appellant.
    Bonham & McLin and A. M. Elliott, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a proceeding by citation in the County Court of Wayne county, instituted by appellant as administrator, against appellee, to obtain possession of a certain certificate of deposit claimed by appellant to be property of his intestate’s estate. Trial was had in the County Court, resulting in findings and judgment in favor of appellee. From this judgment appellant prosecuted an appeal to the Circuit Court where the case was tried de novo, again resulting in appellee’s favor.

The petition sets up that the intestate was the holder of a certificate of deposit in the Fairfield National Bank for the sum of $512.50, bearing date April 8, 1905, due in one year with interest at the rate of three per cent; that appellee was a sister-in-law of intestate and was living with him at the time of his death; and that immediately after he died she took possession of the certificate of deposit and refuses to deliver it over to appellant.

To this petition appellee answered that she did not take possession of said certificate at the death of intestate; that he was not the owner of it at the time of his death; that she was the owner of.it at that time; and that she derived title thereto by gift from him in his lifetime.

At the trial the certificate was produced by appellee. Appellant introduced it in evidence, and appellee admitted that up to the time of intestate’s death, “it had not been presented to the bank for payment.” The certificate bore no indorsement thereon.

To meet appellant’s case, appellee produced as witnesses Charles Hilliard, a neighbor, and her daughter, Ethel Lasley; and she asked to be allowed to testify in her own behalf, bnt upon appellant objecting, the court refused to allow her to do so. Under section 80, chapter 3, Hurd’s Revised Statutes, 1905, the court might have permitted appellee to testify, but a failure, to “examine her on oath” or to permit her to testify at her own request, was not error. That question is left by the statute to the discretion of the court.

Prom the evidence it appears that the intestate was a bachelor, somewhat advanced in years, and lived in the country on a farm. Appellee was the widow of one of his brothers, and she, with her two children, had made her home with him and kept house for him for a number of years. He had been in failing health for a time and the witness Hilliard, a neighbor living about a quarter of a mile away, usually called each day to see him. On the occasion of one of these calls, about a week before his death, he was sitting on the side of his bed dressed in his underclothes. He asked for his pants, took a pocket-book out of his pants’ pocket, took the certificate of deposit out of the pocketbook and handed the certificate of deposit to appellee, “and told her to take it and keep it,” and “told her that he wanted her to have it as her own.” Appellee took it, had it put in her own pocket book, upstairs, and kept possession of it from that time until it was produced in court. There were present on this occasion, all in the room together, the two witnesses, Hilliard and Ethel Lasley, and the two parties to the transaction, the intestate and appellee.

There are some discrepancies in the testimony of the two witnesses as to where the-intestate’s pants were, and as to who handed them to him, if any one did, or whether he got them himself; and there are also some discrepancies in the various answers of the witnesses as to the particular words that the intestate used at the time he “reached” the certificate to appellee, one of the witnesses saying that in connection with that transaction he said: “I may never get well.” But upon the whole, it is clear to us that the intestate did actually deliver the certificate in question to appellee with the intention of making a gift of it to her, that he fully expressed that intention by the words he used, and that she so understood and so accepted it. There is no occasion here for discussing any distinctions that might be made between gifts inter vivos and gifts causa mortis. The facts in this case fully meet all the requirements of either.

Counsel for appellant contend that the gift must fail for want of indorsement on the certificate. They say: ‘‘ The lack of indorsement of such instrument is not only prima facie evidence that the deceased was the owner of the instrument at the time of his death, but it is conclusive. Such an instrument cannot under our statute be the subject of gift and the gift be perfected unless the same is transferred by the donor to the donee by (both) indorsement and delivery.” And they further say that the certificate of deposit in this case is in legal effect, and in fact, a promissory note. In this latter statement they are correct. As a general rule the courts of both England and the United States hold this class of obligations to be promissory notes; our own Supreme Court has so held. In Bank of Peru v. Farnsworth, 18 Ill. 563 (565), the court, in discussing a certificate of deposit, in substance and effect the same as the one in question here, says, “it is simply a promissory note.” In Laughlin v. Marshall, 19 Ill. 390, the court holds that “a certificate of deposit, payable to the order of the depositor, is in effect, a promissory note.” To the same effect are the cases of Hunt v. Divine, 37 Ill. 137, and Telford v. Patton, 144 Ill. 611.

Counsel cite section 4 chapter 98, Hurd’s Revised Statutes, 1906. This statute is as follows: “Any such note, bond, bill, or other instrument in writing, made payable to any person named as payee therein, shall be assignable, by indorsement thereon, under the hand of such person, and of his assignees, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee successively.” It will be observed that neither the word title nor the word ownership appears in the statute. That statute has no application as between the transferrer and the transferee with respect to either title or ownership. The purpose of the statute was to bring this class of paper within the scope of the law merchant. The statute “is a remedial and not a restraining statute.” At common law promissory notes were not assignable, and when transferred were-subject to existing equities in favor of the maker or payor. The principal purpose of the statute was “to cut off the equities,” and enable the transferee to avail of the “innocent purchaser rule.” of the law merchant, as in cases of bills of exchange. The owner of a promissory note, transferred without indorsement, might at common law, and may now hold it against all the processes known to the law and against all the world, except as to the equities of the makers or payors. It is true that in case of suit he must use the name of the payee—the first transferrer, but such transferrer has no interest in the note, and no power to deny the use of his name nor any control over the suit. This practice prevails only for the protection of the makers or payors and to meet the demands of ultra-scholastic reasoning with respect only to a mere matter of form.

As above noted, promissory notes - were not assignable at common law so as to bring them under the operation of the rules of the law merchant. To remedy this condition, and as the preamble to the act says, “to encourage trade and commerce, which will be much advanced, if such notes shall have the same effect as bills of exchange, and shall be negotiated in like manner,” the English Parliament passed chapter 9 of the Statutes of 3 and 4 Anne. This statute was passed in the year 1704, and in as much as the date of the granting of the charter for the settlement of the colony at Jamestown preceded that date, it never became a part of the common law of Virginia and was not.embraced in our statute adopting the common law. So the state of our law with respect to promissory notes and the law merchant was the same as it was in England before the passage of the statute of 3 and 4 Anne. Moved by the same condition and purpose that moved the English Parliament, our legislature at a very early day in the history of the state passed the statute above quoted, to take the place and serve the purpose, with us, that the statute of 3 and 4 Anne took and served in England.

We think the statute is of no value as support to counsel’s position. The general rule now is, as well where such statute prevails as where it does not, that a gift of a “promissory note payable to the order of the donor,” and of a “certificate of deposit,” and of any such chose in action, may be made and executed by mere delivery without indorsement thereon. Thornton on Gifts and Advancements, pp. 238, 239, 306; Redfield on the Law of Wills, Vol. 3, pp. 335, 336; Rood on Wills, 28; American and English Encyclopedia of Law, 2nd Ed. Vol. 14, pp. 1022, 1023, 1059; Cyc., Vol. 20, pp. 1202, 1206, 1238. The cases that support these texts are too numerous to cite.

While the direct question does not appear to have been much under consideration by the courts of our state, we think both the Appellate Court and the Supreme Court have at least recognized the rule to be as above stated. Martin v. Martin, 68 Ill. App. 169; Martin v. Martin, 170 Ill. 18; Martin v. Martin, 174 Ill. 371. The cases relied upon by counsel for appellant turn upon questions other than that of indorsement, and are of little value here.

We find no error in this record. The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Myers

license: Public Domain

text:
    Edmund Rude et al., Appellees, v. M. R. Fakes, Appellant.
    1. Dram-shop Act—when declaration states cause of action under section 9. Held, that the declaration in this case, substantially set forth in the opinion, stated a cause of action pursuant to section 9 of the Dram-shop Act.
    2. Damages—when exemplary, may he awarded without declaration charging wilfulness. Exemplary damages may be awarded where the proof justifies, without a declaration charging wilfulness, if wilfulness is not the substantive cause of action; likewise, may such damages be awarded in an action under section 9 of the Dram-shop Act without a declaration charging wilfulness.
    3. Damages—when objection to award of exemplary, cannot he made. If the damages awarded are no greater than the actual damages proven, no assignment of error with respect to the award of exemplary damages can be successfully urged.
    4. Trial—what remarles of counsel improper. In an action under section 9 of the Dram-shop Act it is improper for the plaintiff’s counsel to say to the jury that “the defendant makes a part of his money by selling liquors to boys and causing .them to become drunk,” but held in this case that the making of such remark, objection thereto having been sustained and a rebuke administered, did not require a reversal of the cause.
    Action in case. Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Rehearing denied September 9, 1908.
    Rufus M. Potts, Alfred Adams and W. P. Lightfoot, for appellant.
    W. A. Schwartz and J. S. Kendall, for appellees.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action in case brought by appellees, ■Edmund Rude and Maria Rude, parents of Arthur Rude, against appellant, M. R. Fakes, as dram-shop keeper, to recover for injury in their means of support, under section 9 of the Dram-shop Act. It is alleged by the amended declaration, on which the case was tried, that the defendant sold to Arthur Rude, son of plaintiffs, intoxicating liquors, causing his intoxication and, in consequence of which, that he went upon the track of the Illinois Central Railroad Company, was struck by a train, lost his arm and was otherwise injured and crippled, and, thereafter, that he was unable to earn a livelihood and support himself. It is further alleged that Arthur Rude is unmarried and a poor person, and that because of the injuries received, in consequence of the intoxication caused by the defendant, the plaintiffs, being of sufficient ability, and as in duty bound under the statute, laid out and expended a large sum of money, one thousand dollars, in his support, nursing and medical treatment, from and after the time of his injury. The defendant pleaded not guilty. The jury returned a verdict in favor of the plaintiffs for $500, upon which judgment was rendered and the defendant appealed.

We think the declaration sufficiently alleges a right of action within the provisions of the statute, as construed by the Supreme Court in Danley v. Hibbard, 222 Ill. 88. There is evidence to justify a finding by the jury that Arthur Rude and a companion spent the afternoon in the defendant’s saloon, and drank to intoxication, of liquors bought of plaintiff’s bar-tender. They also bought a quart of whiskey which they took with them on leaving the saloon to go home about five-o’clock in the evening. Rude was then intoxicated. They lived at DeSota, a distance of six miles from the saloon, and on the way home Rude drank several times from the bottle of whiskey. They arrived in DeSota about eight o’clock, where the young men separated. Later in the evening, and shortly after a train passed on the Illinois Central Railroad, Rude was found beside the track with his arm mashed off and he was otherwise injured. He was taken home to his parents, who cared for and supported him. For months he was in a helpless-, condition, much of the time in bed and confined to the house. The expenses for medical treatment, nursing, boarding, clothing, etc., incurred by plaintiffs in caring for him, were considerable, and being proper elements of damages in this case, we cannot say that the sum allowed by the jury is excessive.

Arthur Rude was a poor person, unmarried and without children, and his parents, appellees, who owned property, were able and bound by the law to care for and support him when he became helpless. As entirely applicable under the facts in this case we adopt the language of the Supreme Court in Danley v. Hibbard, supra: “The statute gives a right of action to every husband, wife, child, grandchild, employer, or other person sustaining a similar relation, who shall be injured in person or property, or means of support in consequence of the intoxication, habitual or otherwise, of any person. It is conceded that the statute is broad enough to include a child and parent, but the argument is that the right of action is only in favor of one who, under the facts and circumstances as they exist at the time, has a legal right in actual enjoyment, which has been injured in consequence of the intoxication. The proposition as stated is, that this action will not lie because the son had no right to bring a suit, to enforce the enjoyment of his support by his mother (in this case, his parents). If the argument were sound it could not be applied to this suit, which was brought by the mother (parents) for damages resulting from the performance of her duty. She, and not the son, was the person injured, and the injury resulted from imposing upon her the performance of a duty which otherwise would not have existed. If she performed her statutory duty, the question whether her son would have h.ad a right of action against her, if she had failed to perform it, is immaterial. ’ ’

Complaint is made of appellees’ given instructions, which authorize the jury to award exemplary damages if the defendant acted wilfully, wantonly or maliciously in the sale of intoxicating liquor to Arthur Rude, and for ground of complaint it is contended, first, that wilfulness, wantonness and malice was not charged by the declaration, and second, that there is no evidence to warrant the instruction. Where wilfulness or wantonness is not the substantive cause of the action, it is not necessary to allege that the act was wilful or wanton in order to recover punitive or exemplary damages. Besides, the statute upon which this action is based expressly authorized a recovery “for all damages sustained; and for exemplary damages,” against the person causing injury by selling intoxicating liquor. 'The circumstances shown by the evidence in this case are such as to warrant the submission of that question to the jury. The evidence tends strongly to prove that appellant had been requested by the father not to sell Arthur Bude liquor, and promised not to do so, and yet on the day of his injury, that he sold him liquor until he was drunk and thereafter sold him a quart of whiskey more, to keep him drunk until he got home. This was wilful, in the sense, that it was knowingly and intentionally done; and wanton, in that it was without excuse or palliation, and in utter disregard of consequences. The statement of counsel that “the defendant in this case had no reason to. suspect that he would be called upon to meet a claim for exemplary damages” is not in harmony with another statement in the same argument, “that during the progress of the trial of this case, whenever the question of the legal propriety of awarding exemplary damages came up in an interlocutory way counsel for plaintiffs would invariably refer to the case of Hibbard v. Banley, as upholding their contention.” From this, and the defendant’s refused instructions on the question of exemplary damages, we infer that he must have suspected that a claim for such damages would be made. Inasmuch as the sum allowed by the jury is within the evidence of the actual damages sustained, it cannot be said that exemplary damages were allowed, and therefore the objection would not avail, even if the instructions respecting* damages were erroneous. In his argument before the jury, counsel for appellees stated that “the defendant makes a part of his money by selling liquors to boys and causing them to become drunk.” The statement was highly improper and the counsel making it deserved the rebuke given by the court in sustaining* appellant’s objection. The remarks were calculated, and perhaps intended, to excite the passions of the jury, and, were the verdict in such sum as to indicate that it was the result of passion or prejudice, a reversal of the judgment would be justified. It is quite apparent that the jury was not influenced to appellant’s prejudice by the improper statement. We have, carefully considered the argument upon other contentions and errors assigned, but find no error prejudicial to the rights of appellant. It was a fair trial, the evidence justifies the verdict and the judgment should be affirmed.

Affirmed.


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    George J. Funk, Defendant in Error, v. Crescent Packing Company, Plaintiff in Error.
    1. Negligence—when as to manner of employment of set-screw does not establish. The use of a projecting set-screw in machinery 'is not negligence per se, nor is the slight unusual projection of such a screw negligence per se.

    2. Contributory negligence—when servant guilty of. A servant-is guilty of contributory negligence who undertakes to do work known by him to be dangerous when he has the power and the opportunity to remove such danger.
    3. Master and servant—when doctrine of assumed risk applies. Held, that the servant injured in this case -assumed the risk of injury from the set-screw, knowledge of which he had and the danger of which he appreciated.
    Action in case for personal injuries. Error to the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed, with finding of facts.
    Opinion filed September 12, 1908.
    Wise & McNulty, for plaintiff in error.
    Freels & Joyce and Walther & Muench, for defendant in error.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action on the case for personal injuries received by the plaintiff (the defendant in error), while working for the defendant (the plaintiff in error) in its plant. The declaration recites that on the 30th day of January the defendant was engaged in the meat packing business, in the city of Bast St. Louis, operating a meat packing plant, and had therein engines, boilers, shafts, pulleys and belts, used in its business; that it was its duty to furnish the plaintiff a reasonably safe place to do his work, and reasonably safe tools and machinery; that on the twenty-first day of January, 1907, the plaintiff was working for the defendant under a contract, at a salary of $90 a month and was in charge of the rendering, fertilizing and cold storage departments as superintendent; that on the 30th day of January, 1907, he was acting temporarily as engineer at the special order and request of the defendant, and while he was engaged in oiling the shaft of one of the pulleys in the slaughtering department, and standing on a board laid across the joists of said building, there being no proper platform or scaffolding on which the plaintiff could stand to do said oiling, the sleeve of his coat unavoidably was caught by a set-screw, which the defendant had negligently permitted to extend about two inches over a cap on the shaft, and was thereby injured.

The defendant pleaded not guilty and the jury returned a verdict in favor of the plaintiff for $6,000. From a judgment on the verdict, the defendant comes to this court by writ of error.

The plaintiff was employed by defendant under written contract for one year from January 1, 1907, at a salary of $90 per month as superintendent “to take charge of the rendering, fertilizing and cold storage departments.” Before entering into the contract, plaintiff visited, looked over and inspected the plant then in process of erection at East St. Louis, where he was to work. All the machinery at that time had not been completely erected. The plaintiff was fifty-two years old, with sixteen or eighteen years’ experience as foreman of the tank-room, lard, tallow and fertilizing departments in the packing business. The operation of the plant in this" case began about January 16th, but prior to that time there had been trial runs of the machinery. The plaintiff reported for duty under his contract January 1st, and until operations began was engaged at different kinds of preparatory work. He helped to place pipes in the building, fired the boiler and other kinds of work to be done in preparation for starting the plant. The defendant had not yet secured an engineer and plaintiff, by request of the general manager, took charge of the engine and oiled the machinery in the trial runs, continuing to work in this capacity until he was injured. During the time he was attending to the engine and machinery he twice oiled the shaft where he was hurt. In the •building there are two shafts in line north and south, on which are pulleys from which belts are lined east and west. At the place where the plaintiff was injured were two belts. South of the north belt was a boxing-in which the shaft revolved and was held in position. The boxing- was screwed to a post fastened below to a cross-beam. The collar about inches thick was between the pulley and boxing and fastened to the shaft by a set-screw. The shafts were twenty-three feet from the floor. At the time of the accident the plaintiff was engaged in oiling- the shafts at bearing-points, a work he had done twice before since his employment by defendant. To provide a platform on which to stand and reach the place where oil was to be applied, he placed a board fourteen or sixteen inches wide on beams under the shafts. As to what the plaintiff was doing at the time, what happened, and the manner of his injury, he testified: “I took the oil can and stepped on the board; I had oiled on the north side of the belt, and then stooped under the belt; there was no other way to commence oiling the box except stooping under that belt; the belt was a twenty-four inch belt; after I got under the belt I had to raise up off of my knees; I shoved my can to one side to get straightened up; I went to reach with one hand for the post to catch myself from falling backwards, when this'set screw caught my jumper and I was whirled around the shaft.”

A peremptory instruction to find for the defendant was asked by the defendant and refused by the court. In this we think the court erred and that the action of plaintiff must fail for want of evidence to support it. The charge of negligence alleged to have caused the injury is that the defendant permitted a set-screw to extend about two inches over a cap on a revolving shaft. There is evidence that the set-screw in question projected from the collar from one and a quarter to one and three-quarter inches, but this was not evidence tending to prove negligence. It is not disputed that the usual manner of fastening the collar to the shaft, as in this case, is by the use of set-screws which project more or less, sufficient to catch the clothing and cause injury if brought in contact with a rapidly revolving shaft to which set-screws are fastened. One of plaintiff’s witnesses, an experienced engineer, testified, that usually the set-screws project from a half to three-quarters of an inch, but that he had seen them project as much as one and a half inches. Another witness testified, that it was customary to fasten the collars on shafts with set-screws projecting from the collar. We are directed to no evidence in the record that tends to prove, the defendant negligent in using and permitting projecting set-screws in the collar fastened to the shaft as was done in this case, nor does the estimate of witnesses—varying a fraction of an inch from the usual projection, tend to establish negligence as to the set-screw in question, for the danger from contact therewith could not have been appreciably enhanced by any excess testified to. The use of a projecting set-screw in machinery construction is matter of common knowledge, and as stated by the court in Aurora Boiler Works v. Colligan, 115 Ill. App. 527, cited by appellee, it cannot be held to be a defect or its use negligence per se. See also American Malting Co. v. Lelivelt, 101 Ill. App. 320.

The plaintiff fails in proof of another material allegation without which he cannot recover, though the defendant’s negligence as charged were fully established. He was not in the exercise of due care for his own safety. He was of an. age and experience in working about this and like machinery for years, to know and appreciate the danger attending the operation which engaged him when hurt. That it was highly dangerous -to move about under and near the shafts, pulleys and belting in operation, with only a narrow plank twenty-three feet above the floor for a platform was so fearfully apparent as to charge him, in the exercise of ordinary prudence, with every precaution to minimize the hazard. He was the engineer and controlled the machinery, and chose to perform this work while the machinery was in motion rather than while at rest, which could have been done without danger. He knew before he attempted it that the work was dangerous and had the power to make it safe. Choosing to work under conditions hazardous in the extreme, we think all reasonable minds will agree that in ordinary prudence he should have exercised his power and made the conditions safe by stopping the engine.

It is further to be observed that the direct cause of the injury was due to an involuntary act of the plaintiff. In an attempt to save himself from falling backward he brought his person or clothing in contact with the set-serew. As he describes the occurrence his injury was purely accidental, without any basis for inference that it would not have happened had there been a quarter or half inch less projection of the setscrew. Clearly the danger to which he was exposed was within the risks assumed by his employment.

We have not commented upon numerous authorities cited by counsel, for the reason that legal propositions are not in dispute and because the application of well-established principles to the evidence in this case seems so clearly to be in harmony with all the reported decisions that further comment is unnecessary. As the action fails for want of evidence, the cause will not be remanded.

Reversed, with finding of facts.

We find as facts, to be incorporated in the judgment, that plaintiff in error was not guilty of the negligence charged, that defendant in error was guilty of contributory negligence, and that the hazard to which he was exposed was a risk assumed.


text:
    Lora Baker, Appellee, v. Andrew J. Fritts, Appellant.
    1. Pleading—when objections to declaration waived. By pleading over after demurring to a declaration, objections to the declaration are waived.
    2. Pleading—rule of consttuction. In construing pleadings before verdict every intendment is against the pleader; after verdict, every intendment justified by the most liberal construction is in favor of the pleading.
    3. Pleading—when declaration sufficient after verdict-. A declaration is sufficient after verdict, even though all the formal averments are not contained therein. A declaration will be sustained after verdict if it appears from the evidence that all the essential elements entitling a recovery are established by the proof.
    4. Practice—when motion in arrest does not lie. A motion in arrest for want of proper parties, will not avail unless it appears Of record that there is an omission of a necessary party,

      5. Tenants in common—when need not be joined in action for personal injuries. While it is ordinarily the rule that tenants in common should all be made defendants in an action for negligence respecting the premises owned by them, yet it is not necessary nor even proper to do so where the negligence complained of is the act of one in possession or control of the common property.
    6. Verdict—when not disturbed for excessive damages. The court will not disturb a verdict on complaint of excessive damages unless the allowance is such as to manifest prejudice, passion or mistake on the part of the jury.
    Trespass on the case. Appeal from the Circuit Court of Massac county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    James C. Courtney, for appellant; H. A. Evans and D. W. Helm, of counsel.
    C. L. V. Mulkey, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

This was an action of trespass on the case for a personal injury. The original declaration filed was substantially as follows: That the defendant on the first of March, 1907, was the owner of a certain lot or parcel.of ground and was also then and there in the possession and control of a certain building theretofore erected on said lot, which said lot and building thereon abutted a public street known as Ferry street in the city of Metropolis; that connected with said building and as a part thereof, a wooden shed or awning projected from the front of the building into Ferry street, a distance of twelve feet, being supported by wooden posts at the outer edge of the sidewalk in front of the building; that it was the duty of the defendant to take reasonable care that the said wooden shed be kept in proper condition so as not to fall into said street and endanger the lives of persons lawfully passing along the sidewalk in front of said building ; that the defendant suffered negligently said building and shed to become worn, dilapidated, unsafe and dangerous to passers-by along said sidewalk; that the defendant had knowledge of said worn, dilapidated condition of said shed or ought to have known it; that while plaintiff was walking under the shed and exercising due care for her own safety said shed, in consequence of its dilapidated and unsafe condition, and because of the negligence of defendant, became detached from the building and fell upon the sidewalk where plaintiff was walking- and struck the plaintiff; by means whereof the plaintiff was seriously injured both externally and internally.

At the conclusion of plaintiff’s evidence, the court permitted the plaintiff to amend her declaration, by striking out the words “was the owner of a certain lot or parcel of ground,” and inserted in lieu thereof the words, “was one of the owners of lot 296 in block 28 of the city of Metropolis, county of Massac, Illinois,” and in another place by striking out the words: “was also then and there in possession and control' of, ’ ’ and in another place by inserting the words ‘ and had so permitted and suffered said building and said wooden shed to become and be a public nuisance for a long space of time, to-wit, for five years prior to the injury herein "complained of.” Tire defendant objected to the allowance of these amendments, the objections were overruled, and the defendant demurred to the declaration as amended; which being overruled, he refiled or extended the general issue to the amended declaration.

The case was tried by a jury, which returned a verdict in favor of the plaintiff, assessing damages at $750. Defendant moved successively for new trial and in arrest of judgment. Both motions were denied by the Court and judgment rendered on the verdict, from which the defendant appealed.

It is first contended that the trial court erred in allowing plaintiff to amend her declaration after her evidence was all in. The only objection urged in argument is, that the amendments eliminated from the declaration material and necessary allegations, without which a legal cause of action is not stated. The demurrer to the amended declaration challenged its sufficiency and having pleaded after demurrer was overruled, the defendant waived all objections to the declaration and may not thereafter assign error on any ruling regarding the demurrer. Barnes v. Brookman et al., 107 Ill. 317; C. & A. Ry. Co. v. Bell, 209 Ill. 25. The sufficiency of the declaration is not brought in question by the assignment of errors shown by abstract and record, but we are disposed to consider the contention and argument of counsel under the additional assignment made by leave of this court at the February term when the case was submitted, though it does not appear from the motion for nevr trial or in the motion to arrest the judgment, or in other manner, that the sufficiency of the declaration to' sustain a verdict was made a question in the trial court. The amended declaration in this case alleges that the defendant was part owner of the premises. The proof shows that he and his sisters were owners as tenants in common, he owning an undivided one-half, and they together the other half.'

It is alleged and proved that the defendant negligently suffered the building and shed over the sidewalk to become worn, dilapidated, out of repair and dangerous to persons passing on the sidewalk under the shed, and that he permitted and suffered the building and shed to be and become a public nuisance for five years before the injury occurred.' It. is further alleged, and of this there is proof, that the plaintiff was in the exercise of due care for her own safety. It is contended by counsel that the declaration is fatally defective, even after verdict, for want of allegation that defendant was in possession or control of the premises and dwells at some length upon the proposition established by authority, that if a tenant in common alone be sued in case or trespass respecting the land he may plead the tenancy in common in abatement, and that where the declaration shows the non-joinder of a proper defendant the defect can be reached by demurrer or in arrest of judgment. As already stated, this declaration was tested by demurrer, but no error was or could be assigned upon the court’s ruling, for the defendant waived objection by pleading over. A motion in arrest would not avail unless it appears of record that there is an omission of a necessary party. While it is the rule ordinarily that tenants in common should all be made defendants in an action for negligence respecting.the premises owned by them, yet it is not necessary, nor even proper to do so, where the negligence complained of is the act of one in possession or control of the common property. In such case he alone is individually liable for injuries'growing out of its unsafe condition. 17 Am. & Eng. Enc. Law 707 and notes. But it is urged that this declaration as amended does not allege that defendant was in possession and control and is therefore deficient in an essential allegation. It may be conceded that a demurrer to this declaration should have been sustained, but it does not follow that the reason for so holding should likewise prevail when the sufficiency of the declaration is questioned after verdict. In construing pleadings before verdict every intendment is against the pleader. After verdict every intendment warranted by the tíiost liberal construction is in favor of the pleading. “The. rule is different when the sufficiency of a count in a declaration is raised by demurrer than where it is questioned upon appeal. Declarations which may be defective statements of a cause of action which on a proper demurrer would be held defective may be good after verdict.” Grace and Hyde Company v. Sanborn, 225 Ill. 138. In aid of a verdict facts imperfectly stated or submitted, when within the general terms of the declaration, will be supplied; Sargent Co. v. Baublis, 215 Ill. 428. In the case of B. & O. S. W. Ry. Co. v. Keck, 185 Ill. 400, the court says: “Defects and omissions in pleadings, in substance or form, which would have been available on demurrer, are cured by the verdict, where the issues joined are such as necessarily require proof of the fact so defectively presented, and without which proof it is not to be presumed that the court would have directed or the jury would have given the verdict.” The issues joined in this case “necessarily required proof” that defendant was “in possession or control of the premises ’ ’ in order to sustain the allegations in her declaration “that the defendant suffered negligently the said building and shed to become worn, dilapidated, unsafe and dangerous” and “that he had or permitted and suffered said building and shed to become a public nuisance for five years,” etc. The necessary inference from these allegations is that the defendant must have been in possession or control else he could not permit or suffer the building to become dangerous. It is quite within the rule of cases cited to hold in this case, that the verdict will “supply the facts defectively and improperly stated or omitted” because such facts are “within the general terms of the declaration.” Under the issues submitted the defendant may be héld to liability either as a part-owner, a tenant in common in possession and control of the premises, or as a landlord leasing premises in a dangerous condition, or thereafter permitting the same, or the appurtenances used in common by several tenants, to become dangerous and out of repair. There is evidence in the record tending to prove the appellee’s right to recover upon either hypothesis.

Further complaint is made of the court’s ruling in giving and refusing instructions. After a careful examination of the instructions to which attention is directed by argument we are of opinion that there was here no error to justify a reversal of the judgment. Appellee’s first given instruction is subject to the criticism made and in the standard form would better have expressed the definition of reasonable care when applied to the caution required of the plaintiff in this case. The second instruction was properly given as it contains a substantially correct proposition of law applicable in this case. Vocke v. Chicago, 208 Ill. 192. The principal objection to the third and fourth instructions is, that they contain a general proposition that one tenant in common is alone liable for damages growing out of negligence in caring for the common property. As already indicated in another part of this opinion the instruction is incorrect as a general proposition, nevertheless when it appears from the evidence that one of several tenants in common has control or possession of the common property he alone may be held to liability for negligence respecting said-property while in such possession or control. From the evidence and other given instructions, we do not think the jury were misled to the appellant’s prejudice, or that the verdict is in any sense the result of a misdirection by the court. Every legal proposition for which appellant contends, so far as applicable to the facts in this case, seems to be covered by the given instructions and therefore the court did not err in refusing other instructions offered by appellant.

The question of dámages in cases of this kind is peculiarly within the province of the jury, and courts will not disturb a verdict on complaint of excessive damages unless the allowance is such as to manifest prejudice, passion or mistake on the part of the jury. From the evidence we cannot say that the damages are excessive in that degree.

It is not urged that the verdict is contrary to the evidence, or that there is not evidence fairly tending to prove the issues made by the plea and declaration as here interpreted, and as we find no error in the .proceeding prejudicial to appellant’s rights, the verdict is held conclusive and the judgment must be affirmed.

Affirmed.


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    George Klocik, Appellee, v. American Car & Foundry Company, Appellant.

      "Verdict—when set aside as against the evidence. A verdict will be set aside on review as against the weight of the evidence where clearly and manifestly so.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    Wise & McNulty, for appellant.
    J. M. Bandy and D. J. Sullivan, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

This was an action on the case, brought by appellee against appellant, to recover for injuries received while engaged as an employe in a car manufacturing plant operated by appellant. The additional count on which the case was tried alleges that the defendant had in use at its plant a certain boring machine with auger for boring holes in timbers used in the construction of railroad cars, and that plaintiff was engaged in carrying timbers to the machine to have holes bored in them and then carry them away and pile them; that the defendant negligently permitted the machine, after notice of its dangerous condition to be and remain out of repair; that when the said auger was stopped by the operator, it would start itself without being caused to do so by the operator; that plaintiff was ordered by his foreman to clean the machine' and while attempting to do so, after the machine was stopped, the auger suddenly started without act of the operator, by reason of which the plaintiff’s hand was caught and injured. The defendant pleaded not guilty, the case was tried by a jury, resulting in a verdict and judgment for the plaintiff for $1,200, from which, after motion for new trial was overruled, the defendant appealed. The contention here, and to which the argument is chiefly directed, is that the verdict is manifestly against the weight of evidence. After a careful examination of the record we have reached that conclusion.

The appellee testified that he was a helper at the machine, engaged as alleged in the declaration, and that one Pete 'Shuralesky was the operator and appellee’s foreman. He says that the operator directed him to clean the shavings out of the machine, which was then at rest, and while so engaged, the machine started without known cause or the act of any one. There is no evidence that the machine was defective other than may be inferred from the statement of appellee, that it started of itself at the time he was injured, and the not very satisfactory testimony of the witness Craweck, who says that he saw the machine in operation, and that within a week or two of the accident and prior thereto, he saw it start up three or four times without being moved by the operator. No witness testifies of what the defect, if any, consisted. While it may not be said to have been impossible for a machine in construction and mechanism, as was.this machine, to become self-acting by reason of defective conditions, we are wholly without satisfactory evidence upon which to base such probability, and justify the conclusion that such defect existed. The foreman of the shop, the operator of the machine, and one other witness, all testify that they examined the machine immediately after appellee was hurt and that it was then and ever since has been in perfect condition, and that it could not have been started without the application of considerable force to the operating lever. Appellant’s witnesses, four in number, testify, that it was not part of appellee’s duty to clean the auger, and Shuralesky, the alleged foreman, denies positively that he gave any order or directions to appellee. The verdiet was manifestly contrary to the preponderance of the evidence and should have been set aside and a new trial granted.

Reversed and remanded.


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    S. A. Frazier, Appellee, v. Howard Garrison et al., Appellants.

      Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Appeal from the Circuit Court of Washington county; the Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    A. D. Rodenberg and Vernor & Vernor, for appellants.
    Frank F. Noleman and W. F. Bundy, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action in assumpsit brought by the appellee, the plaintiff below, against the appellants, the defendants below, to recover $945.07, .alleged to be due on two promissory notes of $400 each, dated March 9, 1903, payable in two and three years, respectively, bearing interest at the rate óf six per centum per annum, and executed by Howard Garrison as principal and S. O. Garrison as surety.

The declaration is in the usual form consisting of one special count and the consolidated common counts, and the plea is the general issue with notice of set-off. There is no dispute as to the execution of the notes in question or of the amount alleged to be due thereon. The only contention in the case is about the allowance of a set-off of-$500 alleged to he due the appellant, Howard Garrison, as a commission earned by him in assisting the appellee to dispose of certain property.

The case was tried by a jury, who found a verdict in favor of the appellee and assessed his damages at $945.07, the amount of the notes with interest, upon which judgment was rendered. Appellants contend that the verdict was against the weight and preponderance of the evidence on the question of set-off, and for that reason the judgment ought to be reversed. Howard Garrison, one of the appellants, testifies to an agreement with appellee and to conversations, facts and circumstances which, unchallenged, would authorize and require an allowance of $500 in set-off against the appellee’s claim. But there is a direct denial and dispute by appellee of material parts of appellant’s statement, and in this conflict of testimony between two witnesses, equally interested and equally credible,' so far as appears of record, without corroborating circumstances to turn the scale one way or the other, the verdict is conclusive and. this court may not interfere, for we cannot say that the verdict is contrary to the evidence, or that it is manifestly against the preponderance of the evidence. If the jury believed appellee, who was corroborated to some extent by other witnesses, the verdict is right and though appellee’s given instruction be subject to the criticism made, it cannot have prejudiced the appellants in their right to a fair and impartial trial, for there is nothing in the instruction calculated to mislead the jury as to the controlling issues in the case. We have reached this conclusion after a careful reading of the evidence and consideration of argument by counsel, and deem it unnecessary to further discuss the evidence or contentions made in argument.

The judgment will be affirmed.

Affirmed.


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    W. S. Broom & Co., Appellees, v. R. C. Harrah et al., Appellants.
    Negotiable instruments—when consideration of note sufficient. Held, that the promissory nóte sued on in this case was sufficiently supported by a consideration, namely, by the acceptance of such note in lieu of another obligation due by third parties.
    Action commenced before justice of the peace. Appeal from the County Court of Effingham county; the Hon. Michael O’Donnel, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    S. F. Gilmore, for appellants.
    W. S. Holmes, for appellees.
   Mr. Justice Myers

delivered the opinion of the court.

This suit was brought before a justice of the peace by appellees, on the following promissory note: “$31.60.

Effingham, Ill., Nov. 19, 19Q6.

Three months after date we promise to pay to the order of W. S. Broom & Co. $31.60, for value received, with interest at the rate of 6 per cent per annum from date, and, if the interest be not paid annually, to become principal, and bear the same rate of interest. This note is negotiable and payable without defalcation or discount, and without any relief or benefit whatever from stay, valuation, appraisement or homestead exemption law.

F. Cunningham,

R. C. Habbah,

William Meeics. ’ ’

Judgment was rendered against appellants, R. C. Harrah and William Meeks, by the justice of the peace, Cunningham not having been served. An appeal was taken to the County Court by Harrah and Meeks, where.the case was tried by a jury, which returned a verdict for the plaintiff, on which judgment was rendered and the defendants appealed. Complaint is made that the trial court erred in excluding evidence offered by appellants in defense. It appears from the evidence heard and offered that in May, 1906, G-ussie Cunningham, wife of F. Cunningham, principal in the note sued upon, bought of appellees household goods amounting to $30.10 to be paid in monthly instalments of $10. The contract of sale was evidenced by a writing executed by Mrs. Cunningham, reciting that the goods received are held under a lease with forfeiture provision upon failure to pay the instalments. It further appears that no part of the purchase price was paid when due or thereafter until November 19, 1906, when F. Cunningham, with appellants as sureties, executed and delivered the note in question. The husband was liable under the statute for the debt made by his wife, but whether so or not, the acceptance of the note by appellees in payment was a valuable and sufficient consideration to sustain an action against the makers of the note. The acceptance of the note without any qualifying agreement to the contrary would, by operation of law, discharge the debt of Mrs. Cunningham and relieve her and her husband from liability under the original contract of purchase. The substance of appellant’s offered evidence is, that when the note was due, Broom, manager for appellees, told appellants or one of them, that he (Broom) had a lease or lien upon the goods for which the note was given; that appellant Harrah advised Broom to take possession by replevin if necessary and that Broom, under the advice of attorneys consulted, concluded that he has no claim upon the goods. The contention of appellants that he might and should have séized the goods under the contract or lease made by Mrs. Cunningham is not tenable for one sufficient reason, not to mention others, and that is, that the evidence does not show that appellees had any legal claim or right to the property. The offered evidence that Broom said he had a lien does not prove that fact, and when it further appears that the only possible claim was based upon the contract of sale or purported lease to Mrs. Cunningham, which was offered in evidence, it' is clearly manifest that Broom was mistaken. That Mr. Broom informed Mr. Harrah that when he received the note Cunningham requested him to give up the lease and he refused to do so, proves nothing tending to impeach the consideration of the note, and it was for this purpose that the evidence was offered, for the surrender of the writing which evidenced the so-called lease does not appear to have been a condition for the giving of the note, and, certainly, was not the consideration moving appellants to sign as sureties, for their first and only information that “a lease” had been given was from the statement by Broom after the note was due. Even if the note may be regarded as additional security for the payment of Mrs. Cunningham’s debt, and the contract held to be valid and binding as a lease or lien when the note matured, appellants could avail themselves of appellee’s right under the lease only by paying the note and demanding the security—the contract with Mrs. Cunningham. Had the appellees seized the property of Mrs. Cunningham and disposed of it, they could have been charged with the proceeds as credits upon the note. This is. discussed in Phares v. Barbour, 49 Ill. 370, cited by both parties in this appeal. In that case the court says, “there seems to be little if any doubt, from the evidence, that the sureties as well as appellee, understood at the time (when the mortgage was given), that the execution of the mortgage was to release them from their liability—as sureties on the note. ’ ’ And further, “When appellee tooTc possession of the property under the mortgage he thereby became a trustee, not only for Hoffman but for the sureties on the note. And occupying that relation he was bound to use all reasonable efforts for its preservation, and under the provisions of the mortgage, to sell it for the best price that could be obtained. A person thus situated, who appropriated the trust property contrary.to the terms of the mortgage, must be held to account for its full value. He has no right to appropriate it contrary to the terms of the mortgage to his own use, and escape the effect of his violation of his trust by accounting for merely a nominal sum.” In this case appellees did not have possession of the property, nor does it appear from evidence heard or offered that they had a legal right to take it if so disposed. In no sense is the controlling principle in the Phares case applicable to this case. Other authorities cited by appellants are without application under the facts in this case. The trial court ruled properly in excluding the evidence offered by appellants, and as there does not appear to have been any defense, appellees were entitled to verdict and judgment for the amount of the note and interest. The judgment will therefore be affirmed.

Affirmed.


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    Minnetonka Oil Company et al., Appellants, v. Absalom Boyd et al., Appellees.
    1. Contracts—•jurisdiction of equity to restrain breach,. An injunction restraining the breach of a contract is a negative specific enforcement of that contract; the jurisdiction of equity to grant such an injunction is substantially coincident with its jurisdiction to compel its specific performance—both are governed by the same doctrines and rules.
    2. Contracts—when, oil lease laclcing in equitable mutuality. Held, that the oil lease, so-called, in this case, did not possess the elements of equitable mutuality and that therefore negative specific performance thereof cannot be awarded.
    3. Practice—when performance will not be enforced by injunction. Negative specific performance of a contract will not be enforced by a court of equity, in the absence of equitable mutuality in the' contract sought to be enforced.
    Bill in equity. Appeal from the Circuit Court of Crawford. county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.

      Eugene Mackey and W. W. Arnold, for appellants; Lee & Mackey, Golden, Scholfield & Scholfield and McCarty & Arnold, of counsel.
    Parker & Newlin and Callahan, Jones & Lowe, for appellees.
   Mr. Justice Myers

delivered the opinion of the court.

This is a suit in equity by appellants against the appellees, praying that the oil and gas lease owned by appellants be declared valid, binding and enforceable as against defendants, and that defendants be enjoined from drilling or operating upon the premises therein described for oil or gas, and from producing, transporting or marketing oil or gas therefrom, and for an accounting of the oil and gas already produced, marketed or wasted. On the 9th day of June, 1905, James Apple and Grover Apple, owners of eighty acres of land in Crawford county, Illinois, their wives joining therein, signed, sealed, acknowledged and delivered to W. W. Seybert, of McKees Bocks, Pa., the following written instrument:

“Agreement of Lease, made this 9th day of June, A. D. 1905, between James Apple and Lucinda, his wife, Grover C. Apple and Della, his wife, of Oblong, 111.,.lessor, and W. W. 'Seybert of McKees Bock, Pa., lessee. Witnesseth: That the lessor does hereby grant unto lessee for the term of three (3) years (and so long thereafter as oil or gas is produced from the land leased, and the royalties and rentals paid by the lessee therefor) the exclusive right to mine for and produce petroleum and natural gas, from, and the possession of so much of eighty (80) acres of land, in Crawford County, State of Illinois, as may be necessary therefor, with the right to use water and gas (if found) for the necessary engines, and to remove all machinery, fixtures, etc., placed by lessee on the premises.

Said land bounded: S. E. ¼ of N. W. ¼ and S. W. ¼ of N. E. ¼ Sec. 8, T. 6, N. R. 13 W.

No well to be drilled within 300 feet of the buildings without lessors’ consent. The lessee to deliver to lessor in pipe line the one-eighth (⅛) of all petroleum produced from the premises, and to pay One Hundred ($100.00) Dollars per annum, for each gas well from which the gas is marketed, payable semi-annually from the date and while the same is so utilized, and to pay all damages to growing crops.

The lease to be null and void and no longer binding on either party if a well is not commenced on this block of 1,000 acres within twelve months from this date, unless the lessee shall thereafter pay annually to lessor 25 cents per acre, dollars, per year for each year’s delay in commencing said well. Each payment to extend the time ■ for completion for one year. A deposit to credit of lessor in Oblong Bank, Oblong, 111., etc., to be a good payment of any moneys on this lease.

Party of the first part to have free gas for the dwelling thereon by laying their own line and making connections at well. Provided there is surplus gas and at no time to use gas out of dwelling. Party of the second part to protect all lines.

Lessee to bury pipe lines below plow depth when requested. Witness the hands and seals of the parties.”

This instrument was filed and recorded in the county recorder’s office. On April 3, 1906, W. W. Seybert assigned to the Minnetonka Oil Company, a Pennsylvania corporation, all his right, title and interest in and to the south half of said premises, forty acres. By mesne and successive assignments, duly recorded, T. N. Barnsdall claims ownership in leasehold of the north half of said premises.

On or about April 30, 1906, the appellees entered upon the premises described, drilled and completed wells thereon, from which oil and gas was taken and marketed. Appellees claim right to and in said premises by virtue of a lease made and entered into by the said James and Grover C. Apple on April 28, 1906, to Absalom Boyd, Alexander McDonald and D. D. Planagan, their successors and assigns. Upon bill, answer and replication issues growing out of the foregoing state of facts were brought to hearing before the court, and the decree from which this appeal is prosecuted was rendered.

Though the bill in this case is not in technical form for specific performance of a contract, the proceedings being of that nature and so characterized by the prayer for relief, the bill will be treated as one for specific performance and equitable principles will be applied accordingly in determining the rights of the parties in litigation. “An injunction restraining the breach of a contract is a negative, specific enforcement of that contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction, to compel a specific performance. Both are governed by the same doctrines and rules.” Pomeroy’s Equity Jurisprudence, sec. 1341; Chicago Mun. Gas Lt. Co. v. Town of Lake, 130 Ill. 42.

For several reasons based upon equitable propositions which it will not be necessary to discuss, we are of opinion that the appellants are without equitable right or remedy for the relief sought by the bill. The writing or lease, as it is called, by its terms and the evident purpose for which it was secured from the original owners of the land in controversy, is not such as a court of equity will require to be specifically performed. It is wholly lacking in equitable mutuality. “The general principle is that where the contract is incapable of being enforced against. one party, that party is equally incapable of enforcing it against the other.” Tryce v. Dittus, 199 Ill. 189. “A contract to specifically enforced by the court must be mutual, that is to say, such that it might at the time it was entered into, have been enforced by either of the parties against the other of them.” Gage v. Cummings, 209 Ill. 120.

Tested by the foregoing propositions it is clear that .the Seybert contract is not one to be enforced by bill for specific performance for “at the time it was entered into” Seybert, the lessee, was under no obligation or covenant contained in the lease or contract which a court of equity could compel him to perform. He promises nothing, agrees to nothing, does nothing precedent to that which would entitle the lessors to the payment of rental or compensation for the oil and gas which might subsequently be produced from the land. Though it was impliedly, if not expressly understood, Seybert was to develop the oil and gas supposed to exist (and this we will consider later) he was not bound in such manner that a court of equity could compel him to act, to perform. On his part the contract was optional, for which no consideration was given except a promise to do or pay something in case he exercised his right under the option. The contract was not one that equity could enforce against the complainants or their assignors, and for this reason alone the decree of the Circuit Court was justified. Bond v. Lumaghi, 209 Ill. 316. In the case of Canal Commrs. v. Sanitary District, 191 Ill. 326, we find another well-established and applicable proposition to justify the decree in this case. “Although a contract may be legal and enforceable, it must be perfectly fair, equal and just, and such as a court of equity will commend in order to justify a decree of specific performance.” And also in Hale v. Bryant, 109 Ill. 34: “No matter what form a transaction may take, however plausible on its face, equity will discover the real intention of the parties and will not permit one party to reap any advantage from a contract not just to others with whom he is dealing.” In paraphrase of language used by this court in construing an oil lease in the case of Gillespie, Trustee, v. Fulton Oil and Gas Co. (140 Ill. App. 147), the substantial and moving consideration was the implied covenant with respect to the development of the property so as to make the premises rent or royalty producing. From the terms of the lease and the use thereafter made of it Seybert did not, at the time he procured it, intend to perform or undertake any of the implied covenants whereby the promised royalty or rent could be realized. Neither he nor his assigns ever took any steps to that end or made any offer to do so, or any excuse' for not doing so, until after the lapse of more than a year, the time beyond which the lease became void by its terms, unless by a nominal payment thereafter made the period for development was extended, and not until the appellees under color and claim of right, had taken possession and developed the property.

By citation, approval and quotation from the opinion of the court in the case of Huggins v. Daley, 99 Fed. Rep. 606, this court is committed to the rule adopted by the courts of West Virginia in the construction of oil leases and the interest in the property which may thereby be acquired. Gillespie v. Fulton Oil Co., supra. Under this rule “an oil and gas lease in which the sole compensation to the lessor is a share of the product (or royalty), is not a grant of property in the oil or in the. land until oil is actually produced, but merely the right to possession for the purpose of exploration and development, there is always an implied if not express covenant for diligent search and operation. ’ ’

Other questions made by the assignment of errors have been discussed by counsel, but as indicated not being material to a decision of this case, it is therefore unnecessary to further consider them. The decree of the Circuit Court will be affirmed.

Affirmed.


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    James Fields, Appellee, v. City of Johnston City, Appellant. Mary Mathis, Appellee, v. City of Johnston City, Appellant. A. J. Follis, Appellee, v. City of Johnston City, Appellant.
    1. Municipal cobporations&emdash;when not responsible for negligence of independent contractor. A municipal corporation is not responsible for the negligence of an independent contractor where it appears -that the work about which such independent contractor was employed was not intrinsically dangerous and where such work was not such as a municipal corporation was under a primary and inalienable duty to perform by itself.
    2. Measure oe damages&emdash;when instruction is erroneous. In an action for injury to real property it is error to instruct a jury that they may consider depreciation of such property in value where no permanent injury has been charged.
    Actions in case. Appeals from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the February. term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    Denison & Spiller, for appellant; J. E. Carr, of counsel.
    Pillow, Smith & Stone and Clemens & Slater, for appellees.
   Mr. Justice Myers

delivered the opinion of the court.

These three suits, in case, were brought by appellees to recover damages to their respective properties from the alleged negligence of the defendant, the city of Johnston City, a municipal corporation, in the construction and maintenance of its public sewerage system by which it is claimed by appellees that large quantities of water were caused to flow over and upon their property, thereby damaging the same. By agreement of the parties the three suits were consolidated and tried by the same jury. The declarations, in substance, are the same in each case, and each declaration consisted of two counts. The first count charges that the plaintiff was lawfully possessed of certain premises (describing the same), which the plaintiff used and enjoyed as a residence property, but that the defendant, a duly incorporated city, wrongfully made or caused to be made a certain sewer, and wrongfully extended the same through and under a certain embankment or levee near to the premises of plaintiff in a careless, negligent and improper manner, and maintained said sewer through and under said embankment, or levee; and that by reason thereof large quantities of foul sewerage, rain and surface water ran and flowed through said sewer and through or under said embankment, to and emptied upon the premises of plaintiff, and thereby causing damage to plaintiff’s premises. The second count is substantially the same as the first.

The defendant demurred, the demurrer was overruled, and the plea of not guilty filed, and issue joined. A trial by jury resulted in verdict with damages assessed in favor of each of the plaintiffs. A motion for new trial in each case was overruled and judgment rendered on the verdict. The defendant appealed.

Appellees filed in this court a motion to expunge from the bill of exceptions a purported amendment which was made at a term of the Circuit Court subsequent to that at which the judgment was rendered and after the expiration of time allowed for filing a bill of exceptions. The motion was taken with the case, but inasmuch as there is reversible, error shown by the record without the amendment, we do not deem it necessary to decide the motion, but to settle questions of law likely to arise on another trial, will consider the errors assigned as though the amendment was legally authorized and properly allowed.

It appears in evidence that defendant, on or about the 1st day of December, 1906, entered into a written contract with one H. H. Jenkins, to construct for it a sewerage system for the city, according to plans and specifications furnished; that the plan adopted was practical and of standard construction; that if the construction had been according to contract and specifications, there would have been no injury or damage to plaintiffs’ property; that said sewer was not completed and accepted by defendant until after the time when it is claimed that water overflowed plaintiffs’ premises; that during the construction and before the completion of said sewer there were heavy rains in the vicinity of Johnston City, and at times in which the sewer was to be laid water from the ditch or from some of the sewer pipes overflowed plaintiffs’ premises; that at all of these times the mouth of the in-completed sewer was closed by sand bags placed therein, thereby preventing any water from entering said sewer at the mouth, which at that time had not been extended to the creek or proposed outlet. There is evidence in support of appellees’ contention, that the sewer was defectively constructed, that the joints were not cemented nor the work in other respects done according to contract and specifications. Witnesses testify that the pressure of water in the sewer forced open the joints through which the water escaping filled the sewer trench and overflowed upon the plaintiffs’ lots. It is claimed by appellees that the injuries complained of, the damages to their property, was caused by the negligent, careless and imperfect construction of the sewer in a public street of the city.

The only error to which appellant’s argument is directed are those of the third and fourth assignment, the giving of the plaintiffs’ instructions and the refusal of instructions offered by the defendant. All of appellant’s refused instructions embody the propositions of law which would relieve the city of liability, on the ground that the damages for which the suits were brought were due to the negligence of an independent contractor engaged in the construction of a city improvement. The first of appellant’s refused instructions will best illustrate the proposition as presented to the court and is as follows:

“If you believe from the evidence that the sewer in question in these cases was constructed by H. H. Jenkins, an independent contractor, as explained in these instructions; and if you further believe from the evidence that the plans for constructing said sewer as furnished by said city to said contractor would not necessarily result in damage or injury to the property of the plaintiffs, then the defendant, city of Johnston City, would not be liable for any damages to the property of the plaintiffs caused by any negligent construction of said sewer, unless you further believe from the weight of the evidence that the said sewer, was completed and accepted by the said defendant city at or prior to the time of filing these respective suits.”

Other instructions correctly defining an “independent contractor” and properly directing the application of the legal proposition to the facts in this case were tendered and refused. In this we think, the court erred, for propositions as to liability for injuries caused by the negligence of an independent contractor substantially as stated in the instructions is the established law in this state, and is applicable under the facts which the evidence in this case tends strongly to prove. “The principle of respondeat superior does not as a rule extend to cases of independent contracts where the party for whom the work is to be done, is not the immediate superior of those guilty of the wrongful act, and has no choice in the selection of workmen, and no control over the manner of doing the work under the contract.” 2 Dillon on Municipal Corporations, sec. 1028; Chicago v. Murdock, 212 Ill. 9. But, as said by Dillon, the rule does not apply where the contract directly requires the performance of work intrinsically dangerous, however skillfully performed. In Thompson on Negligence, Vol. 5, sec. 5803, the rule and exceptions are stated as follows: “A municipal corporation is not, however, liable for the negligence of an independent contractor or his employes, unless the acts which caused the injury were done in pursuance of the contract itself, or otherwise under the direction of the city; or unless the act contracted to be done was intrinsically dangerous—such as blasting rocks, excavating for a subway in a street, and proceeding with the work so carelessly that a house abutting on the street falls into the excavation and is destroyed; or unless the act or omission of the contractor is a violation of some primary and inalienable duty of the city, such as the duty of keeping its streets in a reasonably safe condition for public travel; or unless the city, through its officers, reserves a general control over the contractors in respect to the mode and manner of doing the work.” In East St. Louis v. Murphy, 89 Ill. App. 22, wherein the action was for damages caused by the contractor in filling and grading a street, and the rule under discussion was invoked, the court says: “If the improvement could be reasonably made under the ordinance without casting sand upon the lot, and was made under an independent contract, with supervision by appellant limited to seeing that the contract was executed according to its terms, and without interference in its execution except to this extent, and without complicity in the acts of the contractor in causing sand to be deposited on lots of appellee, then the city is not liable. If, however, the improvement provided for by the ordinance and done in accordance with its provisions, necessarily cast sand upon appellee’s lot and thereby damaged it as charged, then the city is liable whether or not the improvement was made by an independent contractor.” Where the work is intrinsically dangerous, or where the party employing the contractor is under a primary and inalienable duty, either by express statute or by implication of law, the rule does not apply. When the cause of injury is wholly collateral to the contract work and entirely the result of the negligence or wrongful acts of the contractor or his servants, the contractor alone is liable. City of Sterling v. Schiffmacher, 47 Ill. App. 141. In all the cases cited by appellee wherein the question of independent contractor’s liability is invoked, except one, the action was for persona] injuries suffered by persons in the rightful use of the public streets or sidewalks of the city. In those cases and others of the class, the exception obtains and the city may not escape liability for neglig’ence of the contractor for the reason that it is its legal duty to exercise reasonable care to keep its streets and sidewalks in a reasonably safe condition for public use, and it may not delegate that duty to a contractor and thereby escape liability. In City of Chicago v. Murdock, 212 Ill. 9, the city had let a contractor the construction of a water-tunnel, to do which it was necessary to blast the earth and rock with dynamite. The plaintiff’s building was jarred and shaken by the explosion of dynamite in blasting, causing the walls to crack and settle, and it was for this injury to property that the suit was brought. The court holds that the work was intrinsically dangerous, -and for that reason the city could not escape liability, though the damage were done by an independent contractor. Appellees rely upon the further statement made by the court in that opinion, that “another exception to the general rule applicable to the case is that where an individual or corporation does work pursuant to a special franchise or charter power, the doctrine of respondeat superior is applicable.” The exception here stated has no application in the case at bar, for reasons made clearly apparent by the opinion of the Supreme Court in Foster v. City of Chicago, 197 Ill. 264. It was there held that the city was not liable for injuries caused by the negligence of an independent contractor engaged in constructing a sewer in a public alley, when the city under the contract had no more power of supervision than appears to have been reserved in the contract with Jenkins in this case. In the Murdock case, supra, the entire work was under the immediate direction and superintendence of the Commissioner of Public Works, who had the power to select or reject material and labor. In that case as in the case of City of Chicago v. Dermody, 61 Ill. 431, which the court cites as authority, the statute and ordinance required the Commissioners to take charge of the work and see that it was performed according to plans and specifications. “The requirement that the time and manner of doing the work must be satisfactory to the city’s commissioners of public works does not include the means employed, and is limited by the provision of the contract. * * * The contractor was not required to take his orders day by day from the city. He was to be guided by the contract and the specifications constituting a part thereof. * * * He was an independent contractor, the city retaining such supervisory power as it might, from time to time, find it necessary to exercise to insure compliance with the contract and to obtain the result called for thereby.” Foster v. Chicago, supra. The language quoted aptly applies to the contract between the appellant and Jenkins. It is not contended that the injury was caused by a defective sewer used by the city. The refused instruction is based upon evidence that the sewer had not been completed and had not been accepted by the city and was not in operation as a sewer when the overflow and injury occurred. If the plaintiffs. had suffered injury to person or property because of the unsafe condition of the street, occasioned by the ditch, overflow of water, or other result from the negligence of the contractor, the city would be liable under all the authorities cited. We are of opinion that the rule as to liability for the negligence of an independent contractor is applicable under the evidence in this record. Otherwise, it would be to hold that the rule will never apply in actions against a municipal corporation.

The instructions as to the measure of damages were erroneous, because they directed the jury to consider the depreciation in value of the premises as affected by .the. negligence charged. There is no evidence of permanent injury, nor was damages claimed by the declaration for any depreciation in the value of the property. Only the damages inflicted " or sustained prior to beginning suit may be proved in this case. The overflow was not caused by a permanent, completed sewer, nor was such claim made. Under no theory warranted by the pleading and evidence could the plaintiffs recover for depreciation in the value of the property. The appellees’ sixth instruction is subject to the criticism made by appellant. The measure of damages' is not the same, whether the premises are occupied by the owner or by a tenant. In an action by the owner for injuries to premises occupied by a tenant, the loss in rent or cost of repairs made necessary by the injury done covers substantially all that may be considered in estimating damages; whereas the .owner-occupant may have allowance for discomfort and inconvenience as well as expense of repair.

For the errors indicated the judgment of the Circuit, Court will be reversed and the cause remanded.

Reversed and remanded.


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    Tillie Bradenkamp, Appellee, v. Annie Rouge et al., Appellants.

      Evidence—what competent to show existence of liability to pay for services rendered. Expressions of intention to pay are competent as tending to show liability.
    Assumpsit. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    C. E. Pope, for appellants.
    D. E. Keefe, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action.in assumpsit brought in the Circuit Court of St. Clair county, Illinois, by appellee, Tillie Bradenkamp, against appellants, Annie Rouge and Tillie Joergensen, to recover $500. A trial was had at the September, 1907, term of court. The jury found in favor of the plaintiff and assessed damages in the sum of $500. A motion for new trial was argued and overruled, and from a judgment on the verdict the defendants appealed.

The declaration upon which the case was tried consists of the common counts consolidated and two special counts, the first of which, in substance, alleges that plaintiff on or about October 1, 1904, was employed by one Mary Kemper, the mother of the defendants, as a nurse and housekeeper in her last illness, and that said Mary Kemper agreed with the plaintiff that she should be paid $500 for services of every kind rendered by her prior to and up to the time of the death of said Mary Kemper, who being desirous that the plaintiff shduld be paid the said sum of $500 without having to collect same by the process of law, requested the defendants, her sole heirs, that they would immediately after her death, pay the plaintiff the said sum of $500, in consideration that they should take all of the estate of said Mary Kemper, which was of great value, to-wit: $20,000, and that plaintiff would have no expense or delay in securing payment of said sum, and in consideration thereof the defendants and each of them, jointly and severally, promised the said Mary Kemper and the plaintiff that the defendants would upon the death of the said Mary Kemper, pay the' plaintiff the said sum of $500; that said Mary Kemper departed this life intestate on December 31, 1904, and said defendants did take the whole of her estate and the plaintiff did not attempt to collect said sum of money by legal process or present her claim to any court for payment or allowance and the defendants refused and neglected to pay the plaintiff the said sum mentioned. The second special count alleges, that on or about the first day of September, 1904, plaintiff was employed by one Mary Kemper, mother .of the defendants, to work as nurse and housekeeper and continued in such employment up to the time of the said Mary Kemper’s death, about December 31, 1904, and that a short time prior to the death of said Mary Kemper, she agreed with-the plaintiff that she should be paid for the services so rendered to her, the sum of $500; that on or about December 31, 1904, the said Mary Kemper died intestate, leaving an estate worth $20,000 and leaving defendants as her only children and heirs, and that defendants requested plaintiff not to present to the Probate Court of St. Clair county, where the said estate, of Mary Kemper was being administered, her said claim of $500 which was due her from the estate of said Mary Kemper, and in consideration thereof, the plaintiff would not so present said claim for allowance, the defendants and each of them promised the plaintiff to pay to her the said sum of $500 before the expiration of one year after the date of letters of administration were issued on the estate of said Mary Kemper, whereby plaintiff avers that on the 21st day of December, 1906, there became and was due from the defendants to the plaintiff said sum .of $500; that the time of payment is-long since past, that the defendants and each of them refuse to pay the said plaintiff the $500, or any part thereof, and still refuse so to do to the damage of the plaintiff, etc.

Each of the special counts alleges a cause of action, averring a promise based upon a valid and binding-consideration and with evidence in the record tending to prove the cause of action alleged the verdict is conclusive, unless there was prejudicial error in the proceedings by which it was obtained that will justify a reversal of the judgment. We have carefully examined the abstract on file and fully considered the argument of counsel and find no such error. Complaint is made of the court’s rulings in the admission and exclusion of evidence. The testimony of witnesses of statements made by Mrs. Kemper, in the absence of appellants, that she wanted the plaintiff to be paid the sum of $500 because she had been good to her, and other like expressions of intention to pay for kindness or service rendered, were competent as tending to prove a legal liability or basis of a legal claim against the. estate, claimed by appellee to have been withheld from probate on the promise of appellants to pay as set forth in the second count. Most of the evidence.in this line to which objection was made would have been competent in proving a claim against Mrs. Kemper’s estate and the rule which would admit it in probating a claim makes it admissible under the issues here, with this difference only, that in this case, the plaintiff is a competent witness in her own behalf—the action not being against the appellants as heirs, but upon their promise as individuals. Some of the evidence objected to was irrelevant and immaterial, but not being of a character different from that which was properly admitted, or in proof of facts undisputed, we do not think it was harmful or was calculated to influence the jury to appellants’ prejudice. The appellee asked but one instruction, which was given by the court, and we think it calls for a finding upon the evidence of all the disputed facts necessary to warrant a verdict in favor of the plaintiff under the second count. It is not disputed that the plaintiff worked for Mrs. Kemper, nor that she promised or said she was to have $500. While the instruction is subject to criticism, fairly considered, it states substantially the issue to be determined and properly directs the jury as to their finding.

Finding no error in the record prejudicial to the rights of appellants, the judgment of the Circuit Court will be affirmed.

’Affirmed.


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    The People, ex rel. E. R. Leonard, Appellant, v. The Equitable Life Insurance Society of the United States, Appellee.
    Peremptory instruction—when should he given. Where there is no evidence tending to prove the plaintiff’s cause of action alleged in his declaration, a peremptory instruction should he given for the defendant.
    Action of debt. Appeal from the Circuit Court of Union county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    James Lingle, for appellant.
    Mayer, Meyer & Austrian and Crawford & Crawford, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

This is an appeal from, a judgment in favor of appellee upon a directed verdict, in an action of debt, brought by the state’s attorney of Union county on the relation of an informer, against appellee, and tried at the November term, 1907, of the Circuit Court of Union county. The action was one' to recover the penalty provided by the insurance statute of this state (oh. 73, secs. 27-30 Hurd’s Rev. St.), which prohibits insurance companies transacting business in this state from making any distinction or discrimination in the established rates or premiums exacted, between insurants of the same class and equal expectation of life. The declaration contained four counts, each of which charged that the Equitable Life Assurance Society (appellee) executed and delivered a certain policy or policies of insurance and charged and collected premiums thereon less than the established rate of premium charged other insurants of the same class. To this declaration the defendant pleaded the general issue. The case was tried by a jury and at the close of plaintiff’s evidence he dismissed his suit as to all counts except the first, whereupon the defendant asked for and obtained a peremptory instruction to the jury to find for the defendant, and the jury returned a verdict accordingly. Motion for new trial and in arrest of judgment were made successively and overruled by the court. From a judgment on the verdict the plaintiff appealed to this court.

Counsel on both sides have elaborated in brief and argument upon propositions which are wholly outside the question that must determine this appeal. Appellant submitted his case upon the first count alone and we find in the abstract no evidence offered or excluded tending to prove material allegations contained in the first count. That being the condition of the record the peremptory instruction and judgment necessarily follows, whatever may have been the court’s views as to cumulative penalties or measure of damages under the statutes. The first count alleges that the defendant on the 14th day of February, 1906, was a life insurance company doing business in Union county; that it issued a policy of insurance for $1,000 to one Ira P. Keith, 38 years old, for which it charged $8.14; that the defendant’s established premium for persons of that age was $44.99, whereby the defendant violated the statutes prohibiting discrimination, etc. In the search for evidence we have gone beyond the abstract, which is barren of any proof, and have examined the record in vain for evidence of any of the material allegations as above recited. There is no evidence or offer of a policy issued, premium paid or an established rate.

Appellant complains of the limitation to which he was subjected by the court in the opening statement to the jury and of the construction given the statute by the court in ruling on objections made by counsel for appellant. There being no evidence in proof of the declaration the question argued by counsel may be of interest as an abstract proposition, but has no bearing in determining whether the judgment should be affirmed or reversed, and whether counsel or court correctly construed the statutes is not a question made by the record and calling for a decision by this court in disposing of the case.

We therefore deem it unnecessary to consider further the matters discussed in brief and argument. The judgment will be affirmed.

Affirmed.