text:
    Edward Simons v. The People, etc., ex rel. Andrew Dunning.
    1. Quo wahranto—Pleading.—In proceedings quo warranto instituted for the purpose of testing the title to an office, if the defendant seeks to justify, he must set out his title specifically and distinctly, and show on the face of his plea that he has a valid title to the office, and if he fails to exhibit a sufficient authority for exercising its functions, the people will be entitled to a judgment of ouster.
    2. School tbustee—Oath to supfoet constitution necessabt.— The taking and subscribing the oath prescribed in section 25, article 5 of the constitution of the State, to support the constitution of the United States and the constitution of the State of Illinois is an essential and necessary qualification for holding the office of trustee of schools, and without it the title to the office fails.
    3. Pleading—Plea must set out details.—In a proceeding for a judgment of ouster from office, where the defendant justifies, it is not enough to allege generally that he was duly elected, appointed, or that he duly qualified, but he must state particularly how he was.elected, appointed, or how he qualified.
    4. Elections—Polling places—Pbovisions oe time and place mandatoby.—Provisions of law which fix the time or place of holding elections are to be construed as mandatory and not merely directory, and nothing but absolute necessity will justify the holding of an election at other polling places than those provided by law.
    5. Same—Op school tbustee—Mode op contesting.—The statute prescribes a mode of contesting the election of trustees of schools as well as other officers; the mode thus prescribed is exclusive, and the contest can not be made by quo tvan-anto.

    6. Quo wabbanto—Poem op judgment.—In quo warranto proceedings charging defendant with usurping, entering into and unlawfully exorcising the powers and duties of an office, etc., under our statute, the only judgment authorized in case the defendant is adjudged guilty as charged in the information is that of ouster from the office and a fine for unlawfully intruding into it, and the only judgment in favor of the relator, merely one for costs.

      Appeal from the Circuit Court of Cook county ; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed May 11, 1886.
    Messrs. Matthews & Dicker, for appellant.
    Messrs. Crafts & Stevens, for appellee.
   Bailey, P. J.

This ivas an information in the nature of a quo warranto, brought by the state’s attorney, on the relation of Andrew Dunning, against Edward Simons, charging him with usurping, entering into and unlawfully exercising the powers and duties of the office of trustee of schools of township 40, range 13, Cook county. The defendant appeared and filed two pleas, in both of which he sought to justify by showing title to said office. To these pleas a demurrer ivas interposed, which being sustained, a judgment of ouster ivas entered against the defendant, and he now brings the record to this court by appeal.

The only question to be determined is as to the sufficiency of the pleas. In proceedings by quo warranto instituted for the purpose of testing the title to an office, if the defendant seeks to justify, he must set out his title specifically and distinctly, and show on the face of his plea that he has a valid title to the office, and if he fails to exhibit a sufficient authority for exercising its functions, the people will be entitled to a judgment of ouster. Clark v. The People, 15 Ill. 217 ; High on Extraordinary Legal Remedies, § 716.

Said pleas are too voluminous to be inserted here at length, and we shall therefore content ourselves with stating their substance so far as may seem material to the questions we deem it necessary to consider. The first plea alleges that there Avas a vacancy in said office caused by the death of Albert H. Rodman, one of the trustees of schools of said township, who died on or about October 1, 1885 ; that a special election Avas thereupon called by the surviving members of the board of trustees to fill said vacancy, to be held on the 24th day of October, 1885; that the defendant Avas a candidate for said office at said election, and received a majority of all the votes cast and was duly elected to said office; that one of the two trustees was in favor of declaring him elected, but that the other trustee would not consent so to do; that at the first opportunity that he had at a meeting of said board after said election, the defendant, having previously taken an oath to faithfully perform the duties of said office, took his seat as a member of said board, and entered upon the performance of the duties of said office, and has since continued to perform the same. The second plea alleges that on the 2d day of November, 1885, said surviving trustees declared said election held October 24, 1885, to be void, and called a new election to be held November 21, 1885; that the defendant was a candidate for said office at that election, the relator being the opposing candidate; that 993 votes were cast at said election, of which the defendant received 476, and the relator 517; that of the votes east for the relator, 187 were cast by persons who were not legal voters or entitled to vote at said election, and that the defendant received a majority of not less than 145 of the legal votes cast at said election; that the defendant, at the first opportunity he had at a meeting of said board after the result of the said election of October 24, 1885, was known, having previously duly qualified, took his seat as a member of said board and entered upon the performance of the duties of said office, and has since continued to perform the same.

A plain defect in both of said pleas, which seems to have escaped the attention of counsel, is that it is not averred that the defendant, before entering upon the duties of said office, took and subscribed an oath to support the constitution of the United States, and the constitution of the State of Illinois, as well as an oath to faithfully perform the duties of his office, as required by section 25, article 5, of the constitution of the State. The constitutional mandate is that all civil officers) with certain exceptions which do not include trustees of schools, shall take and subscribe such oath before entering upon the duties of their respective offices. Such official oath is an essential and necessary qualification for holding the office, and without it the title to the office fails. Thus, in Thomas v. Owens, 4 Md. 189, when the constitution required that every person elected or appointed to any office of profit or trust under the constitution, or laws made pursuant thereto, should, before entering upon the duties of such office, take and subscribe a certain official oath, it was held that Thomas, though elected to the office of comptroller, and holding a commission therefor from the governor, could not be considered as in office until qualified by taking such oath, and that until he did so qualify, he was no more comptroller than any other citizen.

In the present case, the first plea, alleges merely that the defendant took an oath to faithfully perform the duties of said office. It is plain that such oath fell entirely short of the constitutional requirement. The second plea alleges simply that he “duly qualified.” This is equally insufficient. The mode of his qualification should have been specifically alleged. It is said in Clark v. The People, supra, that where a defendant justifies, it is not enough to allege generally that he was duly elected or appointed to office, but that he must state particularly how he was elected or appointed. The same rule manifestly applies to the mode in which his qualification, which is just as essential to his title as his election, should be alleged in his plea.

But said pleas are, in our opinion, defective in other respects. As the two pleas set up entirely different titles to the office, they must be considered separately, and it is obvious each plea must stand by itself, and can derive no aid from the other» The first claims title through a special election held October 24, 1885, and the second through another election held November 21, 1885. It is claimed by the relator that the first plea fails to show á legal and valid election.

It appears from said plea that, in said township 40, there were, at the time the election of October 24tli was called, seven polling places previously fixed by the county board of Cook county for purposes of general elections. Of the seven election districts to which said polling places belonged, fi e were entirely within township 40. The other two, being the election districts into which the town of Norwood Park was then di ided, were one half within and one half .outside of said township, both polling places, however, being within the township. In calling the election, the trustees directed that the polls be opened at the polling places pertaining to the election districts lying wholly within the township, but formed of so much of the other two election districts as was lying within the township a single district, and selected therefor a polling place nearer its center than either of the two polling places previously fixed by the county board.

While the question is by no means free from difficulty, we are inclined to the opinion that the trustees had no authority to form a new election district out of the two fractional districts lying within the township and to fix a polling place therefor. Under the statute in relation to elections, as amended June 22, 1885, each town in counties under township organization constituted an election precinct, but the county board was required at its meeting in the month of July, 1885, and annually thereafter, to divide the election precincts into election districts, so that each district should contain as near as practicable 400 and in no case more than 450 voters, and describe such districts by metes and bounds, and the county board was also required to fix and establish voting places for such districts, and it was provided that all general and special elections should be held at the places so fixed, and thatno person should be permitted to vote at any election except in the district in which he should reside. Laws of 1885, p. 194. It is also provided by section 27 of the school law, as amended May 31, 1881, that in elections for trustees of schools in townships where, for general election, there is more than one polling place, the trustees should give notice that at each of such polling places a poll would be opened for such election. 2 Starr & Curtis’ Statutes, 2206.

The language of these statutes seems to be imperative, and to leave nothing in relation to the number or location of the polling places to the discretion of the trustees. A serious difficulty, however, arises from the fact that the case of an election district lying partly within the township and partly within an adjoining township, does not seem to have been provided for. Cases may be supposed where this apparent omission in the statute would lead to serious consequences. Thus, if in the present case, the polling places in the election districts into which the town of Norwood Park was divided had been located, as they might have been, outside of township 40, a strict construction of the statute would have resulted in disfranchising all the voters in that portion of said township lying within those election districts. There would have been no place within the township, where they could have deposited their ballots, and no power on the part of the trustees to establish one. But without attempting to suggest any rule of construction applicable to a case such as the one we here supposed, it is perhaps sufficient to say, that in the present case there was no practical difficulty in the way of calling and holding the election in strict conformity with the statute, and that we think should have been done. Polls should have been opened at both of said polling places, and the voters of the township residing^ within said election districts should have been given an opportunity to vote at those places.

But another and perhaps a more serious difficulty arises from the fact admitted by the plea, that the polling place fixed by the trustees in the Norwood Park district, as well as that in another district in the township, was removed on the day of the election, from the place where it had been established, to another place. In one case it was removed from the building where it was located to another building about 200 feet distant therefrom, and in the other case it was removed from the designated building across the railroad to another building^ the distance of the place to which it was removed not being stated in the plea. It is alleged that no voter in either case was ignorant of the change in the polling place, or prevented from voting by reason thereof ; but there is no averment as to the reason or necessity for the removals, or by whom or by whose authority or upon what pretext they were made.

The rule seems to be well settled that those provisions of law which fix the time or place of holding elections are to be construed as mandatory and not merely directory. McCrary on Elections, §§ 114, 115. In Chadwick v. Melvin, 68 Pa. St. 333, the rule is laid down by Thompson, O. J., as follows: “A fixed place, as it seems to me, is as absolutely requisite according to the election laws, as is the time of voting. The holding of the elections at the places fixed by law, is not directory ; it is mandatory and can not be omitted without error. I will not say that in case of the destruction of a designated building on the eve of an election, the election might not be held on the same or contiguous ground as a matter of necessity—necessitas non hahet legem—but then the necessity must be absolute, discarding all mere ideas of convenience.” See also Dickey v. Hurlbert, 5 Cal. 343 ; Knowles v. Yates, 31 Id. 83; Commonwealth v. County Commissioners, 5 Rawle, 75 ; Miller v. English, 21 New Jersey Law, 317.

The same rule is recognized by the Supreme Court in Stephens v. The People, 89 Ill. 342, where the following language is used: “ It is, of course, essential to the validity of an election, that it be held at the time, and in the place provided by law.” But we are referred to the case of Dale v. Irwin, 78 Ill. 170, as justifying the removal of the polling places in this case. The; e the place for holding the election was fixed by the proper authority at a certain store. When the judges of election and voters appeared at the store on the day of the election, the proprietor forbade their using it. They then repaired to another building on the same side of the street in plain sight and not more than fifty or one hundred feet distant and there held the election, all the voters knowing where the poll was opened, and no fraud or improper motive being shown and no voter complaining that he was deprived of an opportunity to vote. Under these circumstances, it was held, in a ¡proceeding to contest the election, that there was no wrong done in holding the election at a place other than the one originally appointed. In that case, the refusal of the use of the store by the proprietor produced an absolute necessity for a change of the polling place. The designated building was no, more available for the purpose of holding an election than itf would have been if it had been burned down. A change had| to be made to prevent a failure of the election. Mo such circumstances are shown by the plea in this case. So far as appears, the removal may have been the result of mere caprice and without any reason, and may have been the act of parties wholly irresponsible and unauthorized, bio attempt is made to justify or explain it. The election, then, so far as these two districts are concerned, must beheld to be void, and taking the' votes of said district from the total vote of the township, it appears that the defendant was in the minority, and consequently not entitled to the office.

By the second plea, the defendant seeks to contest in this proceeding the election of the relator, on the ground that a large number of fraudulent and illegal votes were cast and counted for him, which being deducted from his vote, would leave the defendant largely in the majority. It is admitted that, on the face of the returns, the relator appears to have been elected, and as the contrary is not averred, it must be assumed that the relator was declared duly elected, and has qualified by taking the oath of office. Gan such contest be made in a proceeding by quo warranto?

The statute prescribes a mode of contesting the election of trustees of schools, as well as other officers, and we are of the opinion that the mode thus prescribed is exclusive. Section 27 of the School Law provides that the manner of contesting the election of school trustees shall be the same as prescribed by the general election laws of this State, defining the manner of electing magistrates and constables, so far as applicable; “and by section 98 of the statute in relation to elections, it is provided that the county court shall hear and determine contests of election of all county, township and precinct officers (with certain exceptions, not including school trustees), and all other officers for the contesting of whose election no provision is made. Subsequent provisions of the statute prescribe the mode of procedure in cases of election contests, and section 119 provides that the judgment shall declare elected the person who shall appear to be duly elected.

We are referred to no decision in this State, where the question we are considering has been decided, but the weight of authority in other States whose statutes are similar to ours seems to be, that where a specific mode of contesting elections is provided by statute, such mode is exclusive, and the contest can not be made by quo warranto. Thus in Commonwealth v. Garrigues, 28 Pa. St. 9, the statute provided that the returns of all municipal elections should be subject to the inquiry and determination of the court of common pleas, and upon complaint of fifteen or more qualified voters, such complaint to be filed within twenty days after the election; and that the court, in judging of such election, should proceed upon the merits thereof, and determine finally concerning the same according to the laws of the commonwealth; and it was held on quo warranto against one claiming and exercising the office of alderman of Philadelphia, that the remedy provided by the statute must be followed to the exclusion of the common law remedy. In Commonwealth v. Ross, 35 Pa. St. 263, which was quo warranto against one claiming and exercising the office of commissioner of highways, under color of a certificate of election, it was held that the certificate was the legal and prima facie evidence of title to the office, and that it could be set aside only in the mode prescribed by the statute, and that the defendant’s title could not be tried by quo warranto. In Commonwealth v. Leech, 44 Pa. St. 332, which was an application for a quo warranto to try the title of two rival claimants to the office of common councilman of Philadelphia the application was refused, it being held that the matter sought to be litigated constituted a case of contested election, which was to be tried in the mode especially provided in such cases, and that the statutory remedy supplied the place of the common law remedy. The same doctrine is laid down in State v. Marlow, 15 Ohio St. 114, the foregoing cases from Pennsylvania being cited with approval.

«The rule is stated by Mr. High as follows: “A striking analogy exists between the remedy by quo wa/rranto, information and the extraordinary remedies of injunction in equity and mcunclamus at law, in that neither of these extraordinary remedies is grantable where the party aggrieved can obtain full and adequate relief in the usual course of proceeding at law, or by the ordinary forms of civil action. And where a specific mode is provided by statute for contesting elections and /a specific tribunal is created for that purpose,, and the method of proceeding therein is fixed by law, resort must be had to the remedy thus provided, and the proceedings by information in the nature of a quo warranto will not be entertained. High on Extraordinary Legal Remedies, § 617.

It follows, from the foregoing authorities, that if the defendant desired to contest the relator’s prima facie title to the office by showing that the relator’s majority was produced by fraudulent and illegal votes, he should have proceeded to contest the election in the mode provided by the statute, instead of seizing the office forcibly, and against the prima facie right of his competitor. As he has failed to avail himself of his statutory remedy, he can not in this proceeding attack the relator’s prima faeie title, arising from the apparent majority of votes in his favor, but such title must, so far as this proceeding is concerned, be deemed absolute.

We are aware that it is held in some of the States that the court, in proceedings in the nature of a quo warranto, may go behind the election returns and purge the election of illegal and fraudulent votes, and give judgment in favor of the party actually elected. We think it will, be found, however, that in those States the power is expressly given by statute to administer such remedy in this proceeding. Such is the case in New York. See People v. Thatcher, 55 N. Y. 525. There the statute provided that the information might set forth the person rightfully entitled to the office in controversy, with an averment of his right thereto, and authorized judgment to be rendered upon such right as well as upon that of the defendant. Our statute in relation to quo warranto is much more restricted; the only judgment authorized, in case the defendant is adjudged guilty as charged in the information, is that of ouster from the office, and a fine for unlawfully intruding into it, and the only judgment in favor of the relator authorized by the State is merely one for costs.

It is clear, in the light of the foregoing principles, that the second plea failed to establish any title in the defendant to the office in question, and that the demurrer was properly sustained. The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Green, J.

license: Public Domain

text:
    Peoria, Decatur & Evansville Ry. Co. v. George Wagner.
    1. Instructions.—In a case where the evidence is conflicting and the negligence charged, if proved at all, is a fact strongly disputed by the proof on behalf of defendant, instructions should not only state the law accurately but should also be applicable to the evidence.
    2. Evidence.—Sections of a village ordinance when read in evidence against a defendant to show negligence, should be accompanied by proof that the ordinance was in force at the time of the negligence complained of.
    Appeal from the Circuit Court of Richland county; the Hon. Wm. C. Jones, Judge, presiding.
    Opinion filed April 15, 1886.
    Messrs. Stevens, Lee & Horton, and Messrs. Wilson & Hutchinson, for appellant.
    Messrs. McCauley & Montray, for appellee.
   Green, J.

This was a suit by appellee against appellant, commenced before a justice of the peace to recover the value of a cow alleged to have been killed by the negligence of appellant’s servants in charge of its train. The cause was taken to the Circuit Court of Richland county on appeal and there tried by a court and jury, resulting in a verdict for plaintiff for $40 damages, overruling appellant’s motion fc new trial, judgment on verdict, and this appeal therefrom. There can be no doubt the cow was killed, but there is a very sharp conflict of evidence on the question whether the death of the cow was caused by the negligence of the servants of appellant. Counsel for plaintiff below seem to have been aware of this, and the instructions asked for and given to the jury on his behalf indicate that the theory upon which the ease was tried and verdict for plaintiff insisted on, was that the cow had been killed by defendant’s train within the corporate limits of the city of Olney, and that said train was running at a rate of speed forbidden by the city ordinance of Olney in force at the time said cow was killed, and hence the servants in charge of the train were guilty of such negligence as rendered appellant liable for the damages resulting therefrom.

The only error assigned necessary to pass on is that improper instructions were given by the court to the jury on behalf of plaintiff below. In the first of these the court instructs the jury, in substance, that if they believe from the evidence the cow was the property of plaintiff when killed, and was killed by defendant’s train, managed by its servants, within the corporate limits of the city of Olney, and further believe from the evidence that said corporation had duly passed and published the ordinance given in evidence regulating the speed of trains while passing through the corporate limits of said city, and that said ordinance had been duly published according to law before the date of killing said cow, and that defendant’s train was running more than six miles an hour at the time said cow was killed, this fact, together with all other facts and circumstances in evidence, you may consider in arriving at your verdict; and if you find that by reason of the willful or gross negligence of said company said cow was killed by their engine, then you should find for plaintiff and assess his damages at whatever the weight of the evidence shows said cow was worth. The second instruction is as follows: That when a railroad company runs its trains through á city, incorporated town or village, at a greater rate of speed than is permitted by the ordinance of the city, town or village, and stock is killed by such train while so running, the killing will be presumed to have been done through the negligence of the company.”. And the third of these instructions is this: The court instructs the jury that it is prima facie evidence of negligence on the part of the railroad company to run its trains through a city, incorporated town or village at a rate of speed prohibited by law, and if a railroad do so run its trains and thereby injure property, then such company is liable.”

In a case like this, where the evidence is so conflicting, and the negligence charged, if proven at all, is a fact strongly-disputed by the proof on behalf of defendant, instructions should not only state the law accurately, but should also be applicable to the evidence. These instructions just quoted and alleged to be erroneous must be so held, unless the ordinance relied on by appellee was properly admitted in evidence, and was also in force at the time said cow was killed. The record shows: Counsel for plaintiff offered in evidence the ordinance of the city of Olney, in pamphlet form, and asked to read to the jury Sec. 204 and Sec. 240 thereof,” and was permitted to so read said sections, over the objection for immateriality made by counsel for appellant. To this ruling of the court no exception was taken; hence we can not consider the error assigned for admitting improper evidence on behalf of plaintiff; but these sections were not proven to have been in force at the time the cow was killed. The record discloses no evidence even tending to show when these sections were passed, or by what body, or at whát time they were in force; nothing but the sections themselves were read in evidence, and they are without date. Such being the evidence, the instructions were vicious and calculated to mislead the jury. For the error in giving these instructions on behalf of plaintiff, the judgment must be reversed and cause remanded.

Reversed and remanded.


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    B. M. Rowland v. Springfield Fire and Marine Insurance Co.
    1. Insurance.—An application for insurance, accompanied by premium, made to an agent only authorized to solicit insurance, and a return by him to the applicant of a receipt containing the clause “ subject to the approval of the general agent of said company,” will not constitute a contract binding upon the insurance company when the application is promptly rejected by the company and premium returned.
    2. Practice.—In this case the demurrer to evidence was improperly sustained, and the practice in withdrawing the case from the jury irregular; it would have been better practice to have instructed the jury that there was no evidence for plaintiff and to find for defendant.
    Error to the Circuit Court of Richland county; the lion. Wit. 0. Jones, Judge, presiding.
    Opinion filed April 15, 1886.
    Messrs. Wilson & Hutchinson, for plaintiff in error;
    cited 1 Parsons on Contracts, 73; N. E. F. & M. Ins. Co. v. Schettler, 38 Ill. 167; Wood on Fire Insurance, § 4; Dormady v. State Bk. of Ill., 2 Scam. 241.
    Mr. John P. Heap and Mr. Thomas Bates, for defendant in error ;
    that the contract of insurance was not a valid one, cited Baptist Church v. Brooklyn Fire Ins. Co., 28 N. Y. 153; Winnesheik Ins. Co. v. Holzgrafe, 53 Ill. 522.
   Green, J.

This was a suit in assumpsit brought by plaintiff against defendant upon an alleged contract of insurance to recover the value of property destroyed by fire. In the - st count of the declaration it is averred, in consideration of a premium of 85, for which a note was given to and accented by defendant, defendant, by its agent, induced plaintiff to insure his property in that company agamst loss by fire, which inducement was caused and procured by defendant representing to plaintiff that his property would be so insured from noon of the date of application if he would sign an application for insurance, which was done in manner and form as defendant, by its agent, represented was necessary in order to effect insurance ; but policy not being issued, defendant’s agent represented as an inducement to the making of said contract of insurance that the property would be and was thereby insured until the proper officer should insure or give notice of its refusal to issue a policy insuring said property for one year ; described items of property, averred their value to be $213, destruction by fire March 17, 1885, and before said application was rejected, and fire occurred while, property was so insured ad i/nterim; avers proof of loss, etc.

Second count avers that defendant, for $5, on March 6, 1885, promised and undertook to insure plaintiff’s property from loss by fire for one year to the amount of $200, subject to the reserved right to reject the same and return premium by giving notice before loss; describes property insured; avers note was given for premium and paid March 9, 1885, and immediately thereafter and before defendant had acted on application property was destroyed by fire, loss $214, which accident occurred while promise of insurance was in full force, and before reserved right to reject was acted upon; avers proof of loss, etc., refusal to pay and ad dainnum. To this declaration defendant pleaded general issue. The cause was tried by court and jury; when the evidence was all heard defendant filed his demurrer to evidence, which the .court sustained.and discharged the jury. Plaintiff’s motion for new trial was overruled and the court entered judgment in favor of defendant for costs, and plaintiff thereupon sued out this writ of erroi to reverse said judgment, and assigns for error the refusal of the court below to admit evidence for plaintiff, the exclusion of proper evidence from the jury, refusal to submit case to the jury, and sustaining demurrer to evidence. We think the court be ow in refusing to admit plaintiff’s evidence, the admission of which was refused, and in excluding such as it did exclude from the jury, committed no errors.

The material facts in this case as disclosed by the record are that a short time prior to March 7, 1885, one Cachennour, a district agent of defendant, with authority to receive applications for insurance and to collect and transmit premiums, appointed L. W. Mitchell his sub-agent (with defendant’s consent) to solicit insurance for the company, and on March 7, 1885 Mitchell took a written application from plaintiff for insurance on his property to the amount of $200, and plaintiff at same time gave Mitchell his note for five dollars, payable at some futiu e day, and took from Mitchell this receipt;

“ Received from B. M. Rowland an application for insurance against loss by fire and lightning, by the Springfield F. & M. Insurance Company, of Springfield, Mass., on property to the amount of $200, for the term of one year, subject to the approval of the general agent of said company, and a note for five dollars, due and payable on the--day of-188—• also---in cash, all to be returned if policy is not issued.

e‘ L. W. Mitchell.”

Mitchell handed this application and note to said Cachennour, who forwarded same to the general agent at Chicago. They were returned, errors in application corrected, and again forwarded as before, and the application as amended at once rejected by the general agent, and returned with note to Cachennour, who gave note to Mitchell to return to plaintifiThe fire occurred March 12 or 13, 1885, and on the next day after the fire, plaintiff, who then knew the application had been rejected and that the property was burned, paid Mitchell five dollars and procured the note which had been returned. Mitchell was ignorant of the fact that the property was burned when he received the five dollars and gave plaintiff the note» and on the same day, when Mitchell learned this fact and offered to return the money to plaintiff, the latter refused to receive it and claimed to be insured and entitled to his pay. The defendant never received this five dollars Mitchell was paid by plaintiff. Do these facts, proven by plaintiff on the trial, support his declaration and show a right to recover, or do they not rather clearly show that plaintiff had no right of action against defendant at the time he brought the suit? The latter seems to be the correct theory. Rowland dealt with Mitchell, who, if the agent of defendant, was an agent to solicit insurance only, not to make contracts for it. This was known to Rowland, because the receipt he took disclosed the fact that his application must be approved by the general agent before a contract could be made. We regard the receipt as the writing showing the true character of the transaction between Mitch ell and plaintiff, and determining whether a contract for insurance was made between plaintiff and defendant as alleged. The application was surely not such a contract, nor the note for five dollars, and the receipt only can be resorted to to learn the intentions of the parties; by its plain conditions, each party is bound, and these conditions are, if the application is approved hj the general agent of the company, it would give him (plaintiff) the insurance, a/nd if policy is not issued the note to be returned; it turns out the application is not so approved, and as agreed, the insurance was not given as therein applied for, and no policy is issued, but the note is promptly returned as agreed ; no contract was made, but the proposal by plaintiff to insure was refused. Counsel for plaintiff seems to have realized the position and sought to show a parol contract between defendant by its agent with plaintiff, rendering them liable for the loss alleged, but the court properly refused to admit such testimony, because the only agent with whom plaintiff dealt had no authority to make contracts to insure for, or on behalf of defendant. Upon a state of fact quite as favorable to plaintiff as shown here, and in a case on all fours with this, the Supreme Court of this State, in the case of Winnesheik Ins. Co. v. Holzgrafe, 53 Ill. 518, decide that no contract of in. surance was concluded, and the insurance company not liable. In that case, an application and note for premium accompanying it were given, and receipt similar to the one in this case was taken'by plaintiff. This authority, and Ins. Co. v. Johnson, 23 Penn. State, 74, together with other authorities cited in the brief of defendant in error, we deem conclusive against plaintiff in error upon this record. The payment of five dollars by plaintiff to Mitchell after the loss, and after the rejection of the application was made known to plaintiff, as he testifies, will hardly be insisted on, we apprehend, as clothing tlie transaction had between them before that payment with the garb of a contract, or changing that which was a proposal to insure to a completed contract of insurance. We think, also, the demurrer to evidence was improperly sustained, and the practice in withdrawing the case from the jury irregular ; it would have been better practice to have instructed the jury there was no evidence for plaintiff, and to find for defendant; hut reversing the judgment for this error would he productive of no benefit to the parties, and continue a litigation which would terminate in the same result. The judgment below was right and is affirmed.

Judgment affirmed.


text:
    Louisville & Nashville R. R. Co. v. John T. Upton.
    1. Negligence at common law.—A railroad company built a barbed wire fence a quarter of a mile in length on each side of its right of way. There wore no cattle guards or other structures at. either end of the wire fence to prevent animals from entering upon the track or right of wayAppellee’s horse entered on the right of way between the ends of this fence and while there the whistle on a passing freight was blown several, times-The horse became frightened and jumped on the fence and was thereby injured. Appellee brings an action for damages against the railroad company, basing his right to recover on the company’s negligence in the erection and maintaining the fence built in the manner and of the material mentioned, and in blowing the whistle so continuously. Held, that the judgment for appellee was proper under the circumstances of this case.
    2. Instructions.—An instruction that “ the defendant is not liable for injury to plaintiff’s animal unless it appears from the evidence that the employes in charge of defendant’s engine, willfully and. maliciously blew the whistle on said engine with the intention of frightening plaintiff’s animal and not for the purpose of getting the animal to leave the track and get out of the way of approaching trains.” Held, erroneous.
    3. Negligence in giving signals.—The right to operate a railroad includes the right to make the noises incident to the movement and working of its engines and to give the usual and proper signals of danger, as sounding of whistles and ringing of hells, hut its agents must he free from negligence in their use.

      Appeal from the Circuit Court of Hamilton county; the Hon. C. C. Boggs, Judge, presiding.
    Opinion filed April 15, 1886.
    Mr. J. M. Hamill, for appellant;
    cited Ind. B. & West. Ry. Co. v. Schertz, 12 Bradwell, 304; C. & N. W. Ry. Co. v. Taylor, 69 Ill., 461; C. B. & Q. R. R. Co. v. Dunn, 61 Ill. 385.
    The right to operate a railroad includes the right to make the noises incident to the movement and working of its engines and to give the usual and proper signals of danger, as in the sounding of whistles and the ringing of bells. A railroad company is therefore not liable, while exercising its rights in a lawful and reasonable manner, for injuries occasioned to horses which take fright at such noises: Coy v. Utica & S. R. R. Co., 23 Barbour, 643; Flint v. Norwich & W. R. R. Co., 110 Mass. 222; Norton v. Eastern R. R. Co., 113 Mass. 336 ; Favor v. Boston & L. R. R. Co. 114 Mass. 350 ; Burton v. P. W. & B. R. R. Co., 4 Harrington (Delaware R.), 252; Whitney v. Maine Central R. R. Co., 69 Maine, 208 ; Hudson v. L. & N. R. R. Co., 14 Bush (Ky. R.), 303; P. W. & B. R. R. Co. v. Stinger, 78 Pa. State, 219; Hall v. Brown, 54 N. H. 495 ; Macomber v. Nichols, 34 Mich 212; Shearman & Redfield on Negligence, § 486.
    Messrs. Wilson & Leslie, for appellee;
    cited 1 Redfield on the Law of Railways, 5th Ed., 501, § 32 ; Pittsburg R. R. Co. v. Karns, 13 Ill. 87; I. C. R. R. Co. v. Harmon, 47 Ill. 298 ; I. C. R. R. Co. v. Middlesworth, 46 Ill. 494; Great West. R. R. Co. v. Geddis, 33 Ill. 304; Indianapolis R. R. Co. v. Blackman, 63 Ill. 117; Howenstine v. Pacific R. R. Co., 55 Mo. 33 ; Memphis R. R. Co. v. Bibb, 37 Ala. 699 ; Cumberland V. R. R. Co. v. Hughes, 11 Penn. (St.) 141.
    If the noise made by the whistle was more than was necessary and contributed to the injury, the appellant became liable for all the consequences: Shearman & Redfield on Negligence, § 486; M., etc., R. R. Co. v. Fullerton, 14 C. B. (N. S.), 54; Hill v. Portland R. R. Co., 55 Me. 438; Penn. R. R. Co. v. Barnett, 59 Penn. (St.) 259; Culp v. A. & N. R. R. Co., 17 Kan. 475.
   Green, J.

This suit was commenced by appellee before a justice of the peace against appellant to recover damages for injuries to the animal of plaintiff, and judgment for plaintiff having been rendered, appellant appealed to the Circuit Court of Hamilton county where a trial was had by the court, without a jury, and the court found for the appellee and assessed his damages at $40, whereupon appellant entered a motion to set aside the finding and for a new trial, which motion the court overruled and rendered j adgment against appellant on the finding, to reverse which judgment this appeal was taken. The evidence shows that appellant built a piece of wire fence about one fourth of a mile in length on each side of its' right of way along the track of its road. At the east end of this fence t. public highway crossed the right of v ay and railway track, and the west end was open to the common. There were no cattle guards or other structures at either end of this wire fence to prevent animals from entering upon the track or right of wav; and in this condition the fence and openings had remained for a month. When the mare of appellee entered on t:ie right of way between the ends of this fence, and while there a freight train of appellant came along, the whistle on it was blown several times, and the mare becoming frightened rushed upon this wire fence, was thereby injured, and her value lessened to an extent that 'damaged appellee fully the amount of the judgment below.

Inasmuch as the mare was not struck by the engine or train and it does not appear that it got upon the track at a place where defendant was required by the statute to erect and maintain fence and failed to do so, the defendant is not liable under the statute, thus leaving only the question whether, under the evidence, the defendant is liable for negligence at common law. This being the case, the court properly refused to hold defendant’s first proposition to be the law. It was as follows: “ The defendant asks the court to hold the law to be, in this case the defendant is not liable for injury to plaintiff’s animal unless it appears from the evidence that the employes in charge of defendant’s engine willfully and maliciously blew the whistle on said engine with the intention of frightening plaintiff’s animal and not for the purpose of getting the animal to leave the track; and get out of the way of the approaching train.” This proposition included u willfully and maliciously,” and in effect was, that unless the blowing of the whistle was a willful and malicious act, however negligent, and committed by the servant of appellant, yet appellant would not be liable for injury resulting from such act. Such a rule does not apply in this case. This was a suit brought in justice’s court and plaintiff was not conSned to the proof of specific averments, as in cases where written pleadings are required. Hence plaintiff was not required to rely upon the proof of negligence under the statute to maintain his cause of action, nor was he limited to such proof ; but if the court below could fairly find from all the evidence that defendant was guilty of such negligence as rendered it legally liable at common law for the injury complained of, and the damages to plaintiff thereby occasioned, then its finding and the judgment thereon is right. Appellee claims the erection of and maintaining the wire fence, open at the ends and built with material of a dangerous character, and the negligent blowing of a steam whistle on the engine of appellant to be acts of negligence creating such liability. From the evidence it appears that these- two pieces of wire fence were not a portion of a continuous fence inclosing appellant’s track and right of way but were built on each side of such right of way and thereby a space about one hundred feet wide and one fourth of a mile in length was inclosed on the sides and open at-the ends, into which animals from the adjoining common might readily enter upon the right of way and railway track of appellant. The mare of appellee did enter this space and while in there, one uncontradicted witness testifies, the train of appellant also entered, and the steam whistle was blown and continued to be blown after the mare had left the track, and- while the train was passing her and even after she had struck this barbed wire fence, thus probably increasing her struggles to push through it, resulting in serious injury. It is quite apparent had this wire fence not been erected as it was, the animal would have effected her escape without injury, however great her fright oceasioned by the noise of the steam whistle, and probably she would have remained on the right of way and not have rushed upon the barbed wire fence and attempted to force her way through it had the whistle not been so negligently, unnecessarily and continuously sounded. Counsel for the appellant suggests that the whistle was so blown to drive other stock besides this mare off the track, but the same witness testifies he was looking out as the train passed along and he saw no other stock there, and those in charge of the train not having been called to testify to contradict said witness the theory suggested is unsupported.

It is further suggested that “ the right to operate a railroad includes the right to make the noises incident to the movement and working of its engines, and to give the usual and proper signals of danger, as sounding of whistles and ringing of bells.” This is so, with the qualification, l£if its agents are free from negligence in their use.” I., B. & W. R. R. Co. v. Schertz, 12 Brad. 305. And such negligence in this case may be fairly inferred from the evidence, and it needs no authority to show that it was the duty of appellant, when it undertook to and did build this wire fence on each side of its right of way, to do so in a manner likely to carry out and effectuate the purpose the law intends, which is to keep animals out of the right of way and out of the danger from jiassing trains. Openings through which animals might and probably would enter should not have been left as they were, without cattle guard or other structure to prevent such entry. Upon the whole record we can not say the court below erred in finding the defendant guilty of such negligence at common law as rendered it liable to the plaintiff for the injury complained of and the damages resulting therefrom. We do not, however, desire to be understood to hold that a fence of barbed wire is an unlawful fence, or that the erection of such a fence by a railroad corporation to inclose the right of way within which its railroad is operated, is an unlawful or negligent act of itself. We perceive no error in the ruling or decision of the circuit court requiring the reversal of the judgment appealed from, and the same is affirmed. Judgment affirmed.


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    Samuel Neuberger et al. v. Allen B. Rountree.
    1. Contract—Sale—Remedies on failure to pat.—In contract for sale and delivery of personal property at a specific and agreed price, when the vendor delivers the property in accordance with the conditions of the contract and the vendee refuses to pay for the same according to the contract, the vendor then has a choice of remedies; he can sue for and recover the contract price or he can reclaim the property and recover as damages for such breach the difference between the contract price and market value of the property at the time and place of delivery.
    2. Same—-Remedy on failure -to accept.—If the vendee refuses to accept the property and pay for the same under such a contract, the vendor can reclaim the property, and then, after having given notice to the vendee of his intention, he can proceed to sell the property to the best advantage and within a reasonable time, and recover as damages the difference between the net proceeds of sale and the contract price.
    3. Pleading—-Recovery must conform to.—The plaintiff is bound by his pleadings and must recover, if at all, upon a case made out thereunder.
    Appeal from the Qircuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed April 15, 1886.
    Messrs. Hay & BAispisl/for appellants;
    that a party can not treat the contract as binding and rescinded at the same time, cited Sumner v. Parker, 36 N. H. 449; Weeks v. Robie, 42 N. H. 316; Clarkson v. Mitchell, 3 E. D. Smith (N. Y.), 269 ; Jewett v. Petit, 4 Mich. 508; Hendricks v. Goodrich, 15 Wis. 679.
    Messrs. Turner & Holder, for appellee;
    that if a delivery is made in expectation of immediate payment, refusal so to do entitles the seller to reclaim the property, cited Owens v. Weedman, 82 Ill. 409 ; Hodgson v. Barrett, 33 Ohio, 63; 1 Parsons on Contracts, 7th Ed. 568; Bagley v. Findlay, 82 Ill. 526.
   Green, J.

Appellee sued appellants in an action of assumpsit in the St. Clair Circuit Court, and in a declaration of three special counts and consolidated money count, stated his cause of action, as follows:

In the first count, that defendants on December 19, 1883, at Nashville, Ill., bought of plaintiff twenty-seven head of mules at $127 each, and said mules were then and there delivered and were to be paid for by defendants; that defendants accepted said mules, but refused to pay for them. Second count is like first, except that it is alleged mules were to be delivered next day following sale. In the third count sale is alleged as in two preceding counts, delivery to defendants at Nashville, that defendants employed plaintiff to drive the mules to Belleville at their own risk, for which the defendants agreed to pay plaintiff $15, that plaintiff delivered the mules as last aforesaid but defendants refused to pay the $15, together with the price of the mules, and by reason thereof plaintiff was compelled to and did expend a large sum of money—$1,000—for feed, freights, care and attention and hired help in and about the delivery of the mules aforesaid, and at the conclusion of third count it is averred, by reason of defendants’ refusal to receive, accept and pay for said mules, as aforesaid, that plaintiff was compelled to and did make re-sale of said mules at $1,000 less than the price agreed to be paid by defendants to plaintiff as aforesaid. To this declaration defendant pleaded the general issue, and specially, that plaintiff undertook to deliver at Belleville twenty-seven straight mules; plaintiff represented and warranted mules to be straight and serviceable, sound and marketable; breach of warranty, and failure of consideration, similar to general issue; replication traversing special plea; and upon such issue the cause was tried by the court and jury ; no instructions were asked for or given; the jury rendered a verdict for plaintiff and assessed his damages at $300; defendants entered motion for new trial, which was overruled by the court and judgment rendered on verdict, to reverse which appellants took this appeal.

From an inspection of this record, it is quite obvious that no recovery under the common count was claimed, but the only damages recoverable (if properly proven) were those specifically averred as arising in consequence of the various breaches. These specific damages were, first, the loss alleged to have been incurred in the re-sale of the mules made necessary by the refusal of defendants to receive,, accept s¿a.ápay for the mules, and, second, for money expended by plaintiff for feed, freights, care and attention and hired help in and about the delivery of said twenty-seven mules under the employment by defendants of plaintiff to drive and deliver said mules at Belleville, as alleged in said third count, and which delivery plaintiff avers he made. We think plaintiff failed to prove any damages occasioned by loss incurred by reason of a re-sale of the mules as alleged, recoverable under the law. The only evidence upon this point is his own testimony, viz: “I re-sold them for $187.50 less money than I had the first time,” and again—“difference on sale of twenty-five head of mules $187-.50; two mules yet on hand and crippled $275; by sale of above mules $51—that is what they brought at my sale when I left for Texas.” This evidence did not come up to the requirements of the law conceding the sale and delivery of the mules to have been completed at Nashville as alleged in the first count and third count, and that defendants then refused to pay plaintiff for them and thus broke their contract. Plaintiff then had a choice of remedies; he could sue for and recover the contract price (and in this case there is nothing indicating this would not have been a complete and adequate remedy) or he could reclaim the mules and recover as damages for such breach the difference between the contract price and market value of the mules at the time and place of delivery. 2d Wait’s Actions and Defenses, 460; Bagley v. Findlay, 82 Ill. 525; Burnham v. Roberts, 70 Ibid. 19.

If defendants refuse to accept said mules and pay plaintiff for them, as alleged in second count, upon completion of sale plaintiff could have reclaimed the property, and then, after having given notice to defendants of his intention, he could have proceeded to sell said mules to the best advantage, and within a reasonable time, and recover as damages the difference between net proceeds of sale and? contract price. In Bagley v. Findlay, supra, it is said: “When a vendee of goods sold at a specific price refuses to take and pay for the goods, vendor may store the goods for vendee, give him notice he has done so, and recover the full contract price; or he may keep the goods and recover the excess of the contract price over and above the market price of the goods at the time and place of delivery; or the vendor may (giving notice to vendee) proceed to sell the goods to the best advantage, and recover from vendee the loss, if goods fail to bring amount of contract price. In such case vendor becomes agent for vendee, etc.”

Story on Sales, 2d Ed., 436, also, and other authorities, state the rule as above, in an action of assumpsit. Inasmuch as plaintiff fails to prove notice to defendants of his intent to re-sell the mules after he took possession subsequent to sale to defendants, or that he did re-sell them within reasonable time thereafter, or that such re-sale was fair, he can not recover the difference between the price under contract and the sum the mules were re-sold for as damages for the alleged breach of contract in refusing to receive, accept and pay for said mules. The case cited by appellee of Owens v. Weedman, 82 Ill. 409, was a suit in trover and not in point. The circuit court erred also in admitting in evidence against the objection of defendants below the memorandum read to the jury to prove the remaining special damages alleged, viz.: money expended by plaintiff for feed, freights, care, attention and hired help in and about the delivery at Belleville of said mules by plaintiff. This memorandum was clearly incompetent under the rule governing the admission of written memoranda of past transactions made by a party to the record. It was also irrelevant for the purpose it was offered, which was to prove the expenditure of money for the matters of care, feed, freight, etc., above stated, in and about the delivery at Belleville under a contract (as alleged in third count) by plaintiff with defendants to so deliver said mules, and averred to have been fully performed by plaintiff. This expenditure was claimed as damages for the breach of this contract by defendants, but plaintiff denied in his testimony making a contract with defendants to deliver these mules to them at Belle-ville, and the items of expense in this memorandum were not for money necessarily expended in and about such delivery, but for buggy hire, railroad fare, feed and pasturage, care, medicine, etc., not authorized by or contracted to be paid for by defendants, so far as appears from the evidence. The plaintiff is bound by his pleading; he can not aver the malting of a specific contract between him and defendants, performance on his part, breach by and damage to him by reason of such breach, and be permitted to recover damages upon proof' he did not make such contract, did not perform or undertake to perform such contract, and was damaged, if at all, by paying out money for purposes not authorized by defendants. It is unnecessary to discuss the question of the rescission of contract of sale claimed by appellant to have occurred, and denied by appellee. Admitting the view of the latter on this point to be correct, yet for the error of the court below in admitting incompetent and irrelevant evidence in overruling defendants’ motion for a new trial, and in rendering judgment on the verdict, such judgment must be reversed and the cause remanded.

Reversed and remanded.


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    Matthias Griesbaum et al. v. William Baum.
    1. Mortgage or separate parcels op lard.—Where a party who had a mortgage on certain land bought in two prior mortgages—one on the north half and the other on the south halt' of said land—upon a suit for strict foreclosure it was error for the court to decree the whole tract of land subject to the lien for the amount of all the notes secured by the three mortgages.
    2. Same.—Where the amount found due by the decree of strict foreclosure was too great by $90, and complainant asked to be allowed to remit this excess under section 82 of the Practice Act, this court refuses to permit this to be done.

      8. Strict foreclosure.—Strict foreclosures are not favored in this State, and it is only in raro cases, where it appears the property is of less value than the debt for which it was mortgaged, and the mortgagor is insolvent, and the mortgagee is willing to take the property in full satis fa - tion of the debt and there are no other incumbrances on the property, that a strict foreclosure should be allowed.
    Error to the Circuit Court of Edwards county; the Hon. C. C. Boggs, Judge, presiding.
    Opinion filed April 15, 1886.
    Mr. J. M. Campbell, for plaintiff in error;
    as to when strict foreclosure will be warranted, cited Farrell v. Parlier, 50 Ill. 275; Miller v. Davis, 5 Bradwell, 475 ; Rourke v. Coulton, 4 Bradwell, 257.
    The only proper way in this case was to have ordered a sale of the land separately: Blazey v. Delius, 74 Ill. 299.
    Hr. Edward Kershaw, for defendant in error;
    as to the remittitur of the excess of $90, cited Practice Act, Ch. 110, § 82; Mosely v. Schoonhoven, 12 Bradwell, 113 ; Thomlinson v. Earnshaw, 14 Bradwell, 593; Scheel v. Warner, 91 Ill. 472.
   Green, J.

Defendant in error filed his bill in chancery in the Circuit Court of Edwards county, in which bill he alleges that said Hatthias Griesbaum borrowed of him on August 8,1884, the sum of $1,900, and gave note therefor, payable to complainant in one year with interest from date at 8 per cent.; that to obtain this loan said Griesbaum told complainant that he owned certain real estate worth $2,500 in Edwards county in fee and unincumbered; that to ascertain the truth of these representations, complainant went with said Griesbaum to the recorder’s office of Edwards county, and there inquired of the recorder whether there was any incumbrance upon said land, and was informed by recorder there was not; that relying upon the truth of these representations, complainant made said loan, upon condition that he was to receive a first mortgage to secure said note; that said mortgage was thereupon executed and delivered to complainant by said Griesbaum, conveying the east half of the southeast quarter of Sec. 30, T. 2, R. 14 in Edwards county ; that said representations of Griesbaum, on which he obtained the loan, were wholly false, and known to him to be so when made, and were so made to defraud complainant out of his money; that at the same time there were two mortgages on said laud duly recorded—one dated March 1, 1869, and the other February 1,1870—the first on the north half thereof to secure a note for §800, and the second on the south half thereof to secure a note for §850, both mortgages executed, acknowledged and delivered by said Griesbaum to one Sam. P. Bowles ; that a suit was brought by the holder of these two last named mortgages to foreclose the same at the April term, 1885, of the Edwards County Circuit Court; that there was due on said notes §2,328.92, and complainant, to protect his rights, was compelled to, and did, on March 28, 1885, purchase said notes and mortgages and pay therefor §2,328.92, and files the same as exhibits and part of his bill; that §1,900 and interest from August 8, 1884, is due complainant on the note secured by mortgage given him, and §2,328.92 with interest from March 28, 1885, on the notes and. mortgages so purchased ; that said Griesbaum is insolvent and unable to redeem, and the mortgaged premises are meager and scant security for the money due the complainant and costs of suit-Mattie Griesbaum, who, it is alleged, married Matthias after the execution of notes and mortgages, is made party defendant, each duly served with process defaulted, and the bill taken for confessed; thereupon, the court below, by its decree, found the allegations in the bill to be true; that the sum of §4,-578.92 is due complainant on the notes secured by said mortgages; that Griesbaum is wholly insolvent and unable to redeem the .mortgaged premises; that said premises are worth §2,500 only, and upon such finding the court proceeds in said decree to order said Griesbaum to pay complainant §4,578.92 within ninety days from date of decree with lawful interest thereon from said date, and costs; that in default in such payments by defendants by that time, they be barred and foreclosed from all equity of redemption and claim in and to said mortgaged premises, and that complainant, in whom the legal title to said premises is vested, or his legal representatives and assigns, he let into the possession thereof on production of a certified copy of decree to any person in possession; to reverse this decree this writ of error was sued out.

Of the errors assigned on this record, three, at least, are well assigned, viz.:

The amount of mortgage debt found due by the court, at date of decree is too large.

The decree burdens portions of the mortgaged premises with a debt which is not a lien thereon.

The court erred in decreeing a strict foreclosure. Counsel for defendant in error admits the amount found due by the decree to be toó great by $90; but asks that he be allowed to remit this excess under Sec. 82 of our Practice Act. This we decline to do. By the terms of this decree, in order to redeem this land mortgaged, the mortgagor must pay to complainant within ninety days from date of decree, not only the whole of the mortgage debt and interest due, but also an additional sum of $90 which he does not owe complainant, and in default of such payment at the expiration of ninety days shall be dispossessed. This condition, to be performed by mortgagor to prevent such dispossession, the court had no right to impose, and a failure to comply with it cannot be permitted to affect injuriously the mortgagor’s rights, and these rights, so far as redemption is concerned, by allowing this unjust excess to be remitted and the decree so amended to stand, would be entirely cut off. The court below erred also in decreeing the whole of the eighty-acre tract of land subject to the lien, for the amount of all the notes secured by the three mortgages. The mortgage securing the note for $800, dated March 1, 1869, was upon the north half of that eighty acres, and was not a lien upon the south half thereof, nor was the mortgage upon said south half securing the note for $850, dated February 1, 1870, a lien upon the north half of said eighty acres, by the purchase of these two notes and mortgages as alleged. Complainant below became subrogated to the holder thereof, from whom he purchased, and thereby acqtdred no rights and remedies different or greater than such holder had, in respect of the said mortgages and the indebtedness thereby secured. Had this been a case even in which a decree for strict foreclosure would be proper, the defendants should by such decree have been permitted to redeem the north half of said eighty acres by the payment of the amount of note and interest secured by the mortgage thereon, together with the proportionate share of the principal and interest of the note secured by the mortgage upon the whole eighty, and defendants should also have been so permitted to redeem the south half thereof by the payment of the amount of the note and interest secured by the mortgage upon said south half, together with the proportionate share of the principal and interest of the note secured by the mortgage upon the whole eighty. The right to such redemption of each forty-acre tract could not be barred by a decree in equity.

We also bold it error in the court below to have rendered a decree for strict foreclosure in this case. It nowhere appears that the mortgagee is or was willing to take the mortgaged premises in satisfaction of the mortgage debt, or that there were no other creditors of the mortgagor. One essential element to justify a decree for strict foreclosure in this State is, that the mortgagee is willing to take the mortgaged premises in satisfaction of the whole debt. In Farrell et al. v. Parlier, 50 Ill. 275, Justice Walker says: “ and this court has repeated'y held that in cases of an irredeemable sale of real estate, not less than ninety days should he given, and when the sum is large a longer period. In our State and in view of our statute, it is only in strong cases, which form exceptions, that there should be decreed strict foreclosure, ora sale without redemption. It may be in rare cases, when it appears the property is of less value than the debt for which it is mortgaged, and the mortgagor is insolvent, and the mortgagee is willing to take the property in discharge of the debt, that a str'c'; foreclosure may be allowed.”

In Boyer v. Boyer, 89 Ill. 449, the same rule is adopted, and Farrell et al. v. Parlier, cited and approved.

In Miller v. Davis, 5 Bradwell, 474, it is said : “ Strict foreclosures are not favored in this State, and it is only in rare cases, when it appears the property is of less value than the debt for which it was mortgaged, and the mortgagor is insolvent, and the mortgagee is willing to take the property in full satisfaction uf the debt, and there are no other incumbrances on the property, that a strict foreclosure should be allowed.” In the case just cited, the complainant had recovered a judgment at law against mortgagor for amount of one mortgage note, and filed his bill to foreclose mortgage for balance of mortgage debt. The court below found that balance to be §2,258, the value of property to be §1.,600, and that mortgagee was willing to take it at that amount as so much payment, but decreed that mortgagee be let in possession of the premises, and also recover of mortgagor §658, difference between value of property and amount of balance found due. The appellate court say this decree for strict foreclosure might be maintained if complainant would satisfy the judgment at law and take the mortgaged property in satisfaction of the debt but not otherwise.” Murphy v. Stith, 5 Bradwell, 562; Greenemeyer v. Deppe, 6 Bradwell, 490 ; Hollis v. Smith, 9 Bradwell, 109, all follow and adopt the ruling of our Supreme Court in the cases cited in this opinion. That such rule is wise and equitable can not be denied, and it is in harmony with the legislation upon the subject of mortgages in this State, such legislation being, as it is, adverse to irredeemable sales of mortgaged premises.

For the error above mentioned the decree of the court below is reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.

¡Reversed and remanded.


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    James Coggins v. Chicago & Alton Railroad Co.
    1. Assault and battery by conductor—Liability on company.—An instruction that if the jury believe from the evidence that the plaintiff, while lawfully a passenger on a railway train of the defendant, was violently assaulted and beaten by the conductor of said train, and that said conductor was then in. the employment of the defendant, defendant is liable to the plaintiff for whatever damages he may have sustained by reason of said ass mlt and battery, and no mere words which plaintiff may have used to said conductor would be a justification for such assault and battery. Held, that u ider the circumstances of the case such instruction was proper, and it was error to refuse it.
    2. Instruction—Disregarding evidence.—It is error to instruct the. jury that if they believe the plaintiff has sworn willfully false upon any one point in the case, then they have the right to disregard the whole evidence.
    Error to the City Court of East St. Louis; the Hon. Wm. P. Launtz, Judge, presiding.
    Opinion filed April 15, 1886.
    Messrs. Rafter & Canby, for plaintiff in error ;
    that mere words are no justification for an assault and battery, cited Gizler v. Witzel, 82 Ill. 322 ; Ogden v. Claycomb, 52 Ill. 365 ; Donnelly v. Harris, 41 Ill. 126; Sorgenfrei v. Schroeder, 75 Ill. 397.
    Mr. L. H. Hite, for defendant in error.
   Green, J.

Plaintiff below brought suit in case against defendant to recover damages for assault and battery committed (as alleged) by servants of defendant, upon plaintiff, while he was a passenger on defendant’s train and resulting in serious bodily injury. In the court below the jury found a verdict of not guilty. Plaintiff’s motion for a new trial was overruled. The court rendered judgment for costs against plaintiff, to reverse which he sued out this writ of error. On the trial plaintiff introduced testimony tending to prove that he entered defendant’s train at East St. Louis—paid his fare thence to Alton and thus became a passenger upon said train, and that on the way to his destination, the conductor demanded fare a second time. A dispute arose, the conductor called him a liar and he retorted, whereupon the conductor struck him several blows, broke his nose and wounded him severely, and upon the arrival of train at next station, Mitchell, some short distance from East St. Louis, the conductor again demanded fare, renewed the dispute, and with the aid of a brakeman, forcibly dragged plaintiff from his seat and threw him off the train. On behalf of defendant the conductor denies that plaintiff paid fare, hence was not a passenger, and not entitled to the protection of the company; admits he struck the plaintiff several blows while on the car, but claims it was done in the heat of passion caused by plaintiff first calling him a God damned liar. Admits he ejected plaintiff from train at Mitchell, but says this was rightfully done because the fare was not paid, and no more force was used than necessary. The evidence conflicted upon the material points, and the instructions given by the court to the jury should have been accurate and applicable, and here it is proper to say that counsel for defendant in error insists that the third instruction asked on behalf of plaintiff was properly refused by the court, because the declaration charges the assault and battery to have been made at Mitchell and in putting plaintiff off the train, while the proof is, that the conductor assaulted and struck plaintiff on the train before reaching Mitchell. That the allegata and probata must correspond, and the substance of the issue must be proved, is true ; but it is averred in this declaration that an assault was made upon plaintiff between East St. Louis and Alton, and also, in addition, that defendant was ejected, etc., and further it is not so material to prove the time and place precisely as alleged in an action for assault and battery. 1 Green Ev., Sec. 61-63, 2d Ibid. 86; Hurley v. Marsh et al., 1 Scam. 329.

The gist of the action is the assault and battery ; that is the substance of the issue. The errors assigned necessary here to dispose of are the refusal of the court to give proper instruetions on behalf of plaintiff, and giving improper instructions for defendant to the jury. ■

The third instruction asked for by plaintiff and refused by the court was: The court instructs the jury that if they believe from the evidence that the plaintiff while lawfully a passenger on a railway train of the defendant was violently assaulted and beaten by the conductor of said train, and that said conductor was then in the employment of the defendant, defendant is liable to the plaintiff for whatever damages he may have sustained by reason of said assault and battery, and no mere words which plaintiff may have used to said conduct- or would be a justification for such assault and battery.” If plaintiff was a passenger an assault made upon him by the conductor in the employ of defendant and while plaintiff was such passenger on its train, would render the company liable, and no defense under such circumstances not available to the conduct- or would avail the defendant; mere words or epithets, however opprobrious, used by the person assaulted to his assailant, will not justify an assault. Hence, the instruction refused would have informed the jury of an important rule, applicable, as we think, and proper in this case. The refusal to give it may have prejudiced the rights of defendant and was error. In the case of Chicago & Eastern R. R. Co. v. Flexman, 103 Ill. 546, Flexman, the passenger assaulted,lost his watch on the train and charged defendant’s brakeman with stealing it; thereupon the brakeman struck Flexman with his lantern in the face, indicting severe injury. Defendant was held liable, notwithstanding the provocation. This is the leading case in our State settling and determining the character and extent of the liability of common carriers of passengers for the acts of its servants in cases like this.

The third instruction given for defendant is erroneous, and is so confessed by counsel for defendant in error. It is:

“ If the jury believe from the evidence that the plaintiff has sworn willfully false iipon any one point in the case, then they have the right to disregard his whole evidence.” But counsel for defendant in error suggests, granting this instruction to have been improperly given, yet substantial justice has been done, and if upon the whole record it appears the right is with the party for whom the erroneous instruction was given, the judgment ought not to be reversed. This court, however, can not in fairness say justice has been done the plaintiff in giving the jury this instruction. By.it they are told, if plaintiff has sworn willfully false on any one point, material or immaterial, in the case, they may totally disregard all the plaintiff’s evidence, however vital to him in the case, even if corroborated by other credible evidence introduced. This, at least, is the meaning the jury might have given this instruction. The effect it had upon the jury is not known to us, but we do know the giving of it may have deprived the plaintiff of the benefit of his entire evidence, greatly to his injury.

For the error in refusing to give plaintiff’s third instruction, and in giving defendant’s third to the jury, the judgment of the court below is reversed and cause remanded.

Be versed and remanded.


text:
    Gibbs & Sterrit Mfg. Co. v. Constant S. Kaszezyki.
    1. Setting aside default.—Where defendant’s attorney was also State’s attorney, and was temporarily absent, by leave expressly given by the court, to attend before the grand jury, at the time the default in question was taken, and it appeared that it was through no fault of defendant or his attorney that they were not ready to answer when the cause was called for trial, and the motion to set aside the default was made on the same day that it was entered, it was proper for the court below to set aside the default.
    2. Warranty.—When vendor of warranted chattels sues for the price, it is competent for defendant purchaser to prove breach of warranty in reduction of damages, although goods were sold at a fixed price and have not been returned; if no offer is made to return goods, the measure of damages is the difference between sum given and real value.

      Appeal from the Circuit Court of Jefferson county; the Hon. C. C. Boggs, Judge, presiding. '
    Opinion filed April 15, 1886.
    Mr. O. H. Burton, for appellants;
    cited Cash v. Giles, 14 Eng. Com. Law R., 372; Dowden v. Wilson, 108 Ill. 264; Osborn v. Stanley, 35 Ill. 102.
    Mr. Wm. H. Green, for appellees;
    cited Mears v. Nichols, 41 Ill. 207; Crabtree v. Kile, 21 Ill. 180.
   Green, J.

This was a suit by appellant brought in justice’s court against appellee to recover the amount of a note. A judgment was there rendered against appellee, who took an appeal to the circuit court, where a tidal by the court without a jury by consent of parties was had, which resulted in a finding and judgment against appellant for costs, to reverse which judgment it took this appeal. The errors assigned necessary to be noticed are:

1st. The setting aside of a default by the court.

2d. The rendition of judgment by the court against appellant, plaintiff below.

The court below was-not requested to hold any propositions of law at the trial by either party. It appears by the bill of exceptions that on the sixth day of the term of court at which this cause was tried, on motion of the plaintiff’s attorney the appeal was dismissed for want of prosecution with a procedendo to the justice of the peace, and a judgment rendered against defendant for costs. On the same day the attorney for defendant appeared in open court and moved to set aside the default and for leave to show cause why the same should be done, and it appearing to the court that defendant’s attorney was also State’s attorney of said county, and was temporarily absent by-leave expressly given by the court to attend before the grand jury at the time the default was taken, and it further appearing to the court that it was through no fault of defendant or his attorney that they were not to answer when the cause was called for trial, the court set aside the default and plaintiff excepted; and it is further shown by the record that on the same day the cause was tried.

We perceive no error in this ruling and decision of the court setting aside the default and permitting appellee to prosecute his appeal. On the other hand under the circumstances we think the court could not have justly denied appellee’s motion; no injury to plaintiff resulted, nor was the trial thereby delayed. In disposing of the remaining error we keep in view that this suit was brought before a justice of the peace and all defenses pleadable in such suit are presumed to be interposed. The note sued on was for 845, signed by appellee, dated June 14, 1881, payable on or before October 1, 1881, to the order of appellant, and was one of three notes for same sum each, given for a mower bought by appellee of appellant through its agent. At the time of purchase appellee was given the written warranty of appellant as follows : “We warrant the Climax mower and reaper to be'well made and of good material, to be as light draft and to do as much and as good work as any machine of same class if properly set up and operated. Condition of warranty: One day’s trial shall constitute a test under this warranty and if the machine does not fulfill the warranty under this test, then notice shall be given to the agent of whom the machine was purchased, and a further test shall be made in his presence; if it then fails, another machine will be substituted or the money or notes refunded. A failure to promptly notify the agent of the non-fulfillment of this warranty, or the use of the machine further than as allowed herein as a test, shall constitute a confirmation of the sale.

(Signed) “ Gibbs & Sterrit Mar’e. Co.”

The proof shows that this agent went with the mower purchased to the farm of appellee, there set it up, tried to cut with it, and finding it defective, told appellee he would return to his office, get repairs, and appellee should come there the next day, when he, the agent, would return with him and make the machine work. The next day appellee went to the office, met the agent, who would not return with him, but giving him some repairs, told him to try and work it himself; if it failed to work satisfactorily to return and inform him; the agent; acting on these instructions appellee took the repairs out, tried to make the machine work and failed; then went to the office to notify agent as directed ; the agent was absent, remained absent, never returned, and appellee was not able since then to find him. After repeated trials appellee failed to make the machine work and no agent of appellant having been put in the place of the one who sold the machine of whom he could get another, it remained in his possession. He tried ineffectually for two seasons to do work with it. He paid one of the notes under protest, claiming the machine was not as represented, and defends against the one sued on .under the warranty. The evidence clearly shows the machine to have been worthless for the purpose it was designed and sold ; but counsel for appellant insists that the sale was affirmed, and appellee’s right to defend under this warranty has been forfeited by retaining possession of the mower an unreasonable length of time, not returning it or offering to return it to appellant, and using or attempting to use it as his own. Conceding that appellee was not entitled to rescind the sale, it does not follow, even if he failed tó return the machine, that he could not set up a breach of the warranty as a defense in this case. The rule applicable here is thus stated in Chitty, Con., 363: “ When vendor of warranted chattels sues for the price, it is competent for defendant purchaser to prove breach of warranty in reduction of damages, although goods were sold at a fixed price and have not been returned ; if no offer is made to return goods, the measure of damages is the difference between sum given and real value.” In Mears v. Nichols, 41 Ill. 207, it is held, “ Where there is an express warranty that an article is of a certain quality, and shall answer a specific purpose, it is not necessary that the purchaser shall return the property ; he may bring suit, or in a suit for the price may recoup or set off damages.” The same rule is announced in Doane et al. v. Dunham, 65 Ill. 512; Owens v. Sturges et al., 67 Ill. 366. Treating the sale to defendantas an executed sale, and him as entitled to recoup damages for breach of the warranty, we think the court below was justified by the evidence in finding these damages to be the full amount of the note sued on. True, neither defendant below, nor his witnesses fix the amount of damages in dollars and cents, but he testifies that after repeated trials the machine failed to work at all; “ it was no goodThe other witnesses corroborated him. One of them testifies, he used the machine in a careful manner and ran it over smooth ground but it would not do good work; the machine was no account; it would not work. It is quite evident the machine was worthless for the purpose it was sold and warranted, that defendant spent much time and labor in an honest effort to make it work and finally abandoned it as useless; the judgment of the circuit courtis affirmed.

Judgment affirmed.


text:
    John M. Sullivan v. The People ex rel., etc.
    Quo warranto—Vote oe council.—Under the decision of the Supreme Court. (113 Ill. 137), the action of the city council of East St. Louis in sus1 ¡lining the motion to approve the bond of Launtz, who had been, duly appointed to succeed appellant as city treasurer by the vote of four of its eight * 'embers with the vote of the mayor, as in case of a tie, was held to be an ¡ oproval of said bond. The judgment of ouster against appellant in the ji_uo warranto proceeding in the court below, was therefore proper.
    Appeal from the Circuit Court of St. Clair county; the Hon. Wm. H. Snyder, Judge, presiding.
    Opinion filed April 15, 1886.
    Mr. John B. Bowman, Mr. A. S. Wilderman and Mr. B. A. Halisert, for appellant.
   Green, J.

This quo warranto proceeding came up to this court by appeal, was heard at.February term, 1885, and then taken under advisement to await the decision of the Supreme Court in the case of People ex rel. v. Launtz, then pending there.

In the case at bar the information charges Sullivan with usurping and un’awfully holding the office of city treasurer of East St. Louis, on and after May 23, 1884, and at and up to the time of filing said information. In his plea to this information defendant avers his appointment as city treasurer by the city council of East St. Louis, on April 27, 1883, for one year, and until the appointment and qualifying of his successor, bis own qualifying therefor, and that no successor had been appointed and qualified. To this plea was a replication denying defendant’s appointment, denying the approval of his official bond, and denying that no s'.ccessor to defendant as city treasurer had been duly appointed and qualified. "Upon this issue the cause v. as tried by the court below, a jury having been waived. The court found the issues for the people, and defendant guilty as charged, overruled defendant’s motion for a new trial, and entered judgment of ouster against him from which judgment he appealed to this court.

The only question to be determined in this case is, was W P. Launtz, duly appointed and qualified on May 21 or May 29, 1884, successor to appellant as city treasurer of the city of East St. Louis? if he was duly appointed and qualified, as prescribed by the ordinances of said city, the finding. and judgment of the court below was right. If, on the other hand, said Launtz was so duly appointed, but did not q%ialify, by having his official bond afjpvoved by the city council as prescribed by the city ordinance, the judgment below should be reversed. It is a'dmitted by counsel for appellant that the record shows Launtz to have been duly appointed to succeed appellant as such city treasurer, but they insist the proof fails to establish the fact of his having duly qualified on cither of the days above mentioned. The evidence is that after the appointment of Launtz (May 7, 1884,) and at the city council meeting on May 21, 1884, all the members thereof, eight in numb or, and the mayor of the city being present, said Launtz submitted his official bond as such treasurer for approval; that upon the motion to approve it, on a call of the ro 1 of the members for the yeas and nays on said motion, four of the members and the mayor voted yea, the remaining four members refused to vote, and the mayor thereupon declared the motion carried; that at the council meeting on May 29, 1884, a like motion to approve said bond was made and acted upon in precisely the same manner with the same result. The official oath of said Launtz and his commission as city treasurer issued to him by the mayor, were also read in evidence. It also appears that the mayor is the presiding officer at council meetings and may give casting vote in case of a tie, but not otherwise.

Whether this action of the city ¡council in sustaining said motion by the vote of four of its eight members, with the vote of the mayor, as in case of tie, amounts to an approved of said bond by the city coioncil was the point directly in issue in the quo xoarranto proceeding against said Launtz decided by the Supreme Court, reported in No. 1, Ad. Sheets of 113 Ill. Rep., 137, and in the opinion it is said: “ The rule is that whoever has a majority of those who vote, the assembly being sufficient, is elected, although a majority of the entire assembly abstain from voting.” * * * “ And such election is valid even though the majority of those whose presence if necessary to the assembly protest against any election at that time, or even the election of the individual.” And the court further say: This admitted rule which applies in cases of election should be taken to govern in this case of approval of the bond, as being a thing pertaining to the matter of the officer’s appointment. The appointment and approval of bond are both necessary to the investiture of the office—both are to be by the same body and may be looked upon as an entirety-in investing one with the office, and the court under the rule thus announced and applied, decide that by the vote of the four members of the city council and the mayor, as proven in that ease the same as in this, the bond of said Launtz, as city treasurer of the city of East St. Louis, was duly approved by the city council, and in the manner prescribed by the city ordinance. This decision of the Supreme Court is direct, clear and positive, and settles affirmatively that Launtz did qualify, and the fact of his appointment as such city treasurer being admitted by appellant, it follows that said W. P Launtz, on May 21,1884, was the duly appointed and qualified successor of appellant as city treasurer of East St. Louis ; that the material averment to the contrary in the plea of appellant is not sustained by the evidence, and the judgment of the court below is right and must be affirmed.

Judgment affirmed.


author: Wilkin, J.

text:
    Jacob Kurz, Impl’d, etc., v. Bernard Suppiger.
    1. Promissory note—Suit for interest.—A note for $1,000 given October 20, 1882, contained this interest clause: “with eight per cent, annual interest from date until paid.’’ Ten days after the note became duo suit was brought before a justice of the peace for the interest on said note for one year, and judgment obtained for such interest. In 1884, suit was brought on the same note and judgment obtained for the principal and interest from October 20, 1883. Held, that the judgment obtained before the justice of the peace is not a bar to the second action.
    2. Same—Interest clause.—The above interest clause must be given the same effect as if it had read “with eight per cent, interest, payable, annually.”
    Error to the Circuit Court of Madison county; the Hon. Wm. H. Snyder, Judge, presiding.
    Opinion filed April 15, 1886.
    Mr. Wm. P. Bradshaw, for plaintiff in error;
    that when the note matured, it constituted but one cause of action, but one demand, and more than one suit could not be maintained for its recovery, cited Mattock v. Krome, 78 Ill. 110; Nickerson v. Rockwell, 90 Ill. 460; Dulaney v. Payne, 101 Ill. 325.
    Mr. Thomas J. Richardson, for defendant in error;
    that a suit and judgment for interest upon a promissory note, where both principal and interest are due, is nota bar to a subsequent action to recover a judgment for the principal sum, and that a note due one year after date, “ with eight per cent, annual interest from date until paid,” is not an entire contract, but contains two separate and distinct obligations—one to pay the principal and the other to pay the interest, cited Dulaney v. Payne, 101 Ill. 325; Wehrly v. Morfoot, 103 Ill. 183; Sparhawk v. Wells, 6 Gray, 163; Andover Savings Bank v. Adams, 1 Allen, 38.
   Wilkin, J.

On the 20th day of October, 1882, plaintiff in error and Martin J. Scott made their promissory note for one thousand dollars, payable to defendant in error, on or before October 20, 1883. The interest clause in the note is in this language: “with eight per cent, annual interest from date until paid.7 On the first of November, 1883 (ten days after the note became due), the defendant in error sued before a justice of the peace for the interest on said note for one year. He obta ined judgment on the 16th of November, 1883, and on the 6th of December following, the same was paid in full. This suit was brought on the 18th of February, 1884, on the same note, and the former recovery pleaded. Defendant in error recovered judgment for the principal of the note and interest from October 20, 1883, amounting J;o §1,163.78 and for costs.

If the judgment obtained before the justice of the peace is a bar to this action, then the judgment of the circuit court is wrong ; otherwise it is right and must be affirmed. The former recovery was properly pleaded, and no objection was made to the evidence.

The difficulties which might be encountered in the determination of this question on general principles are overcome by the decisions of our Supreme Court, and we have only to follow them.

In Walker, impleaded, etc., v. Gamville Kimball, 22 Ill. 537, it is decided upon a promissory note due three years after date “ with interest annually at ten per cent.” that the interest is due at the end of each year. After referring to the word annually as used for the purpose of fixing the rate of interest, Catón, C. J., says : “ But it does not follow that the word was used for that purpose only. That word may well be used, and, indeed, it is the proper word to use, for the purpose of fixing the time when the interest shall be paid, and we are inclined to think that such is its proper office here.” The words annually in that note, and amnual in this, in their respective connections, must be given the same meaning, and, on the authority of that case, this interest clause must be given the same effect as if it had read, with eight per cent, interest payable annually. As is said in that case, the rate of interest is the same whether the word annual is used or not, because the words per annum will always be implied for the purpose of fixing the rate of interest. Construing the contract as providing for the payment of interest annually, the case is, in principle, exactly like that of Dulaney v. Payne et al., 101 Ill. 325, and the Massachusetts cases there cited and followed. The case of Wehrly v. Morfoot, 103 Ill. 183, but reiterates the doctrine of Dulaney v. Payne et al. The judgment of the circuit court is affirmed.

Judgment affirmed.