text:
    Edward S. Mulliner v. Charles M. Bronson.
    1. Construction op contract. — The court is of opinion that the true construction of the contract in this case is, that the lumber piled by appellee and accepted by appellant became the property of appellant, and he was to pay $10 per thousand feet upon all so accepted, but that the amount he was ultimately to pay was to be determined by the number of feet of clear lumber which could be measured out of the quantity so accepted when delivered dry at his yard in Quincy; that clear lumber was the subject-matter of the contract, and if inferior lumber was mixed in with it the latter goes as waste, and if appellee loses anything by it the fault was his own in sending it. As the instructions of the court below were based upon a different construction of the contract, they were erroneous.
    2. Custom. — The claim that appellee was entitled to a return of the rejected lumber or to be paid for it, upon the ground that such had been the accustomed mode of dealing between the parties in many prior transactions, can not be sustained, for such a private and special custom could not control the express words of the contract.

      3. Reasonableness of a custom. — An essential element in every custom is its reasonableness. Qiusre, whether the reasonableness of a custom is to be determined by the court or whether it is a question for the jury. The instruction given was, in either view of the case, erroneous.
    Appeal from the Circuit Court of Adams county, the Hon. J. H. Williams, Judge, presiding. '
    Opinion filed January 22, 1884.
    Mr. A. E. Wheat, for appellant;
    as to when a new trial will be granted, cited Lawrence v. Atwood, 1 Bradwell, 217; C., R. I. & P. Ry. Co. v. Dingmon, 1 Bradwell, 162; Ragor v. Kendall, 70 Ill. 95; Pease v. Catlin, 1 Bradwell, 88; Orr v. Jason, 1 Bradwell, 439; Blanchard v. Pratt, 37 Ill. 243.
    The construction of contracts is for the court, and can not be expounded by witnesses: Lintner v. Milliken, 47 Ill. 181; Streeter v. Streeter, 43 Ill. 155; McAvoy v. Long, 13 Ill. 147; Riley v. Dickens, 19 Ill. 29; Howe S. M. Co. v. Layman, 88 Ill. 42; I. C. R. R. Co. v. Cassell, 17 Ill. 389; Kamphouse v. Gaffner, 73 Ill. 453.
    Mr. Geobge M. Janes, for appellee;
    as to when a new trial will not be granted, cited Evans v. Fisher, 5 Gilm. 569; Palmer v. Weir, 52 Ill. 341; Varner v. Varner, 69 Ill. 445; Vanderslice v. Mumma, 1 Bradwell, 434; Hope Ins. Co. v. Lonergan, 48 Ill. 49; Millikin v. Taylor, 53 Ill. 509; Young v. Schorling, 60 Ill. 148; Lewis v. Lewis, 92 Ill. 237; Howitt v. Estelle, 92 Ill. 218; McNally v. O’Brien, 88 Ill. 237; C. & N. W. Ry. Co. v. Garfield, 11 Bradwell, 87; Taylor v. D. O. & O. R. R. Co., 10 Bradwell, 311; Ward v. Ward, 9 Bradwell, 403.
    Where the words or terms used are doubtful or ambiguous they are construed most strongly against the person who gives or undertakes, or enters into an obligation: Richardson v. The People, 85 Ill. 495; Pike v. Munroe, 36 Me. 309; Mills v. Catlin, 22 Vt. 98; Jackson v. Blodgett, 16 Johns. 172; Charles River Bridge v.Warren Bridge, 11 Peters, 589; City of Alton v. Ill. Trans. Co., 12 Ill. 38.
    A clear, certain and distinct contract is not liable to modification by proof of custom: Simmons v. Law, 4 Abb. 241; Cadwell v. Meek, 17 Ill. 220; Deshler v. Beers, 32 Ill. 368.

      If a party contracting for work or material of a particular style, pattern and finish, accept anything different, he is bound for the contract price: Neville v. Frost, 2 E. D. Smith, 62; Ely v. O’Leary, 2 E. D. Smith, 355; Francois v. Ocks, 2 E. D. Smith, 417; Garrisonn v. Dingma, 56 Ill.150; State v. Auditor, 61 Mo. 319.
   McCulloch, P. J.

This was a suit brought by appellee against appellant to recover a balance due on a lot of lumber furnished under a written contract, of which the following are the material provisions: .Appellee was to set up his sawmill in the sycamore timber growing on the land of one Crank, on or about the 1st of October, 1881, and should saw for appellant, as fast as possible, two hundred and twenty thousand feet of sycamore lumber, one inch thick, of which one hundred and twenty-five thousand feet should be sawed thirteen inches wide, seventy-five thousand feet to be fourteen and one half inches wide, ten thousand to be ten and eleven inches wide, and ten thousand to be eight and nine inches wide; the lumber to be sawed at certain specified rates every month, and the whole to be completed, if possible, before the 1st of January, 1882; said appellee to furnish appellant with lumber clear of shakes, knots and heart, and without doty or rotten places, and to pile said lumber as fast as sawed on high ground, with four sticks to every course of lumber, and all the lumber to become the property of appellant as fast as piled and accepted. Appellee was to deliver to appellant, at his yard in Quincy, the said lumber after it had remained pilpd on sticks for six months, and appellant was to pay him for the same at the rate of nineteen dollars per thousand for the two hundred thousand feet of thirteen and fourteen and one half inches wide lumber, and at the rate of fifteen dollars per thousand for the balance; appellant to measure said lumber after it should be delivered dry to his yard in Quincy, and to measure such only as should be absolutely clear and would work into tobacco boxes. Ten dollars per thousand feet were to be paid appellee monthly as fast as good lumber should be sawed and well piled on sticks, and the remainder of the money to be paid to appellee monthly as fast as the dry lumber should be delivered in Quincy, six months thereafter, and measured up clear according to the terms of the contract.

Subsequently, certain provisions of the contract were waived by the parties, and by a verbal agreement it was enlarged so as to cover a larger quantity of lumber, but the prices were to be the same.

Appellee claims that he delivered to appellant two hundred and sixty-three thousand eight hundred and thirty-nine feet of lumber, and that this amount included three thousand nine hundred and forty feet of maple lumber, about which there is no dispute, leaving, in round numbers, two hundred and sixty thousand feet of sycamore lumber delivered on the contract.

On the other hand, appellant claims that when the lumber arrived at Quincy it measured up clear, according to the contract, forty thousand feet of the narrow kinds, and one hundred and sixty-one thousand five hundred and twenty-nine feet of the wide, which, at the contract price, amounted to $3,669.05, and upon which he had overpaid appellee the sum of $120.16. Appellee claims there is due him $1,088.96, but the jury rendered a verdict in his favor of only $570.80.

The contention between the parties relates mainly to the construction to be given to the contract under which the lumber was delivered. Appellant contends that appellee had contracted to deliver to him, piled at the saw mill, such lumber as would, when seasoned, be clear of shakes, knots and heart, and without doty or rotten places; that upon his acceptance of the same all the lumber so piled should become his property, but that the amount he was to pay for the same should be determined by the final measurement at Quincy after it had undergone six months’ seasoning at the mill; that in- this measurement he was to take into account only such as should be absolutely clear and would work into tobacco boxes, and that all that should not come up to that standard should be considered as waste, and not taken into the account in making up what was to be paid for.

On the trial in the circuit court, appellee’s counsel took the ground that, unless there was a custom proved which should control the language of the contract, if any portion of the lumber delivered by appellee to appellant under the contract was not measured or paid for by appellant, because he did not consider it to be of the kind or quality specified in the contract, and he appropriated the same to his own use, then he should pay for it what it was reasonably worth.

In this court they assume a somewhat different position and argue that the verdict of the jury may be supported upon the ground that even if all the lumber piled at the mill became the property of appellant, then he was to pay for the same at least ten 'dollars per thousand for all that he accepted, and for such as should measure out absolutely clear when delivered at Quincy, he was to pay the additional $9 and $5 per thousand feet to bring the same up to the contract prices. According to this interpretation of the contract appellant would have to pay $10 per thousand for all the refuse and worthless lumber there might be found in the pile, after undergoing tlie seasoning process, fin order to get the good lumber at the prices mentioned in the contract. We can not so construe the contract. What appellant contracted for was clear lumber to be used for a specific purpose, and its fitness was to be determined when the lumber in the pile should be delivered at his yard in Quincy, after undergoing a process of seasoning. From the language of the contract itself it is to be inferred that both parties understood that some lumber might be sent to appellant which would not come up to the requirements of the contract, and such was not to be measured nor was it to be reckoned in making up the sum which appellant was to pay. No lumber was purchased to be paid for at $10 per thousand, nor does the contract provide, that such as should be rejected should either be returned to appellee or paid for at what it should prove to be reasonably worth.

The contract does not provide that appellant should pay $10 per thousand feet upon the lumber that appellee should send to appellant’s yards at Quincy, but that $10 per thousand should be paid monthly as fast as good lumber should be sawed and piled. It further provides that all the lumber should become the property of appellant as fast as piled and accepted. While this acceptance by appellant operated to vest the title in him as to all the lumber in the pile, and entitled appellee to his $10 per thousand feet for the same, yet the amount that appellant was ultimately to pay for the same was left to be determined by the amount of clear lumber it should yield when delivered dry at his yard in Quincy.

If all the lumber in the pile was sold at a minimum price of $10 per thousand feet, with the prospect of appellee’s realizing $15 and $19 per thousand upon the greater portion of it, then he was guilty of the folly of selling out about ten per cent, of the very worst of the lumber before shipment, when by sending itto appellant’s yard in Quincy be could have demanded $10 per thousand for all of it. But if on the other hand such of the lumber as did not meet the requirements of the contract was to be regarded as waste and of no value to either party, then appellee could save the cost of transportation by culling it out before shipment, and at the same time appellant would suffer no damage. In this respect, therefore, appellee by his own acts seems to have put a construction upon the contract which fully accords with our understanding of its language.

What we understand by the contract is that when piled by appellee and accepted by appellant all the lumber became liis, and he was to pay $10 per thousand upon all so accepted, but that the amount he was ultimately to pay was to be determined by the number of feet of clear lumber which could be measured out of the quantity so accepted wheu delivered" dry at his yard in Quincy; that in accepting the lumber so piled at the mill appellant assumed the risk of getting enough clear lumber out of the whole to repay him the ten dollars per thousand feet paid upon the quantity so accepted, but if the clear lumber measured at the yard amounted, at the respective prices of $15 and $19 per thousand feet, to no more than he had paid upon the whole at $10 per thousand, then appellee was to receive no m or pay.

The transaction is analogous to that of a sale of corn in the ear, whereby the purchaser pays in advance of delivery a certain sum per bushel for the estimated number of bushels in a crib, the whole to be delivered to him at his warehouse at a future day to be there shelled, and to be paid for at a certain price per bushel for all the shelled corn it will yield. In such case the subject-matter of the contract is the corn. The cob is waste, and while it goes to the purchaser it is not reckoned of any value. It is rather an incumbrance. The purchaser pays no more than the contract price for the shelled corn, unless he has been imprudent enough to make too large an advance upon it before delivery.

In this case the clear lumber is the subject-matter of the contract and, if inferior lumber is mixed in with it, the latter goes as waste, and if appellee loses anything by it, the fault was his own in sending it.

Counsel for appellee seek to justify the claim that he was entitled to a return of this rejected lumber or to be paid for it, upon the ground that such had been the accustomed mode of dealing between the parties in many prior transactions. The answer to this is that a private and special custom of that character can not control the express words of the contract. Dixon v. Dunham, 14 Ill. 324. If such a custom had existed between the parties prior to this contract the court would look upon the contract as putting an end to it, or at least, as taking this particular transaction out of the operation of the custom.

Where, however, a contract is of doubtful meaning, a general and established custom may sometimes be resorted to for the purpose of ascertaining its true meaning. In this case, appellant introduced evidence tending to show a general custom existing among all dealers in this particular kind of lumber respecting the manner of measuring it. This custom, as stated by appellant, “is to reject that portion that was shaky, or had heart or rotten parts and knots, and to consider them as entirely useless and worthless, and they would not enter into the calculation in any way. Such custom between buyers and sellers is to consider that board as being of no value; the general and universal custom is to measure that portion of the board that filled the contract; the portion that remained, the sound portion of the board, was taken, and no account taken of the unsound.” Again he says, “the custom is to measure out the heart; if the heart runs in the middle :of the board, we measure the good on each side and leave the heart in calculating; if a board is one third shaky and two thirds sound, we measure two thirds of the width of the board and multiply it by the entire length; that gives the quantity of sound lumber in the board. The custom relative to sycamore is different from that relating to hard wood lum ber, becau se sycamore lumber when it is unsound is absolutely worthless and can not be. used for anything.” This is a fair statement of the custom claimed to exist and the reason for it. "Witnesses were called on the respective sides to prove and disprove its existence. We do not deem it necessary to go further than to state the claim as made by appellant. In the view we have taken of the case, it was unnecessary to prove such a custom in order to arrive at the meaning of the contract, for, from the language of the contract itself, it is capable of receiving a definite interpretation, to which the existence of the custom adds no new light. In our opinion the contract agrees with the custom.

The learned judge before whom the case was tried in the circuit court, took an entirely different view of the meaning of the contract from that entertained by this court; namely, that appellant must pay for all lumber received and used by him that complied with .the contract at the contract prices, and the rejected lumber at what it was reasonably worth, unless a custom was proved that the purchaser might appropriate to his own use without compensation all lumber delivered to him by the'seller, which was not up to the standard of the contract. In accordance with these views the court gave to the jury the following instruction:

“ The court further instructs the jury that, even if they believe from the evidence in this case, that it was a part of the contract between the plaintiff and the defendant that the defendant was to measure the lumber cut and furnished under such contract by the plaintiff to the defendant, yet the law requires that such measurement should be just and fair to the plaintiff as well as to the defendant. And if the jury further believe from the evidence that any portion of the lumber so delivered by the plaintiff to the defendant under the contract read in evidence was not measured or paid for by the defendant, because the defendant did not consider such lumber of the kind or quality specified in such contract, but that, notwithstanding such omission to measure the same, the defendant actually appropriated to his own use such lumber not measured, then the plaintiff can recover what such unmeasured lumber was worth, if anything, when so appropriated by him, the said defendant, unless the jury further believe from the evidence, that at the time the contract or contracts between the plaintiff and defendant were entered into, a general and well-known custom prevailed at the place where said contract was made, amongst all persons dealing in said lumber, that the purchaser might appropriate all lumber delivered to him by the seller to his own use without compensation, which was not up to the standard of the contract, and if such custom did exist, it was so in derogation of general principles and reason that its existence must be clearly shown by the evidence.”

The first objection to this instruction is, that it puts such a construction upon the contract that, if appellant appropriated to his own use the rejected lumber, he must pay for it what it was reasonably worth — in other words that the rejected lumber belonged to appellee, whereas the contract says that all the lumber piled by appellee for appellant and accepted by him should be the property of appellant.

A second objection taken to this instruction is, that there is no evidence in the record that the rejected lumber had any value, and therefore upon this point there is no evidence for this instruction to rest upon. This objection we consider to be well taken. In the absence of any testimony upon this point the jury may, as is argued by counsel for appellee, have considered the rejected lumber as worth ten' dollars per thousand feet, and may have based their verdict on that calculation.

A still further objection may be noted to this instruction ■which occurs in the last clause pf it. An essential element in every custom is its reasonableness. If it is unreasonable it is void. There does not seem to be entire harmony in the decisions of other States as to whether the reasonableness of a custom is to be determined by the court or whether it is a question for the jury. We are not aware that the question has ever been definitely decided in this State. In either view, the instruction in question is erroneous. If, as a matter of law, the court considered the alleged custom an unreasonable one, it should have been held void and the jury should have been so instructed; but if it was a question for the jury, then it was error in the court to tell them that it was in derogation of general principles and of reason, for that was the very question the jury had to pass upon. It matters not how clearly a custom may be proved,if it is unreasonable it is void and the courts must disregard it. But in this connection it may be remarked that, in regard to usages of trade, men engaged in any particular line of business are generally as capable of exercising an intelligent judgment as to what is reasonable in the manner of transacting their business among themselves, as are courts and juries; and if a well established usage is found to exist among them, it ought not to be rejected as unreasonable without full inquiry into the reasons upon which it rests.

For the reasons herein given, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: McCulloch, P. J.

license: Public Domain

text:
    Henry M. Green v. The People et al.
    1. Pleading — Action against subeties — Official bond. — In’ an action against sureties of a supervisor for an alleged breach, of his official bond, the declaration averred that the money sued for came into the hands of the supervisor during his term of office, next preceding that for which the bondinsuitwas given; that the same had never been disposed of by any order of the town, but became in his hand a part of the general fund, there having been no loss or injury proved according to the statute. Held, that a positive averment in the declaration that the money was in the principal’s hands at the expiration of the term during which it was received, or that he charged himself with it in an accounting with the town authorities, would seem to be necessary to render the sureties upon the new bond responsible.
    2. Supervisor failing to pay over — Demand.—In an action against the sureties of a supervisor for a breach of his official bond in failing to pay over moneys collected which he was bound to keep for the use of the town, the mere fact that the supervisor died without paying over the money would not of itself constitute a breach of the condition of the bond. If the supervisor had the money in his hands at the time of his death, the only proper person to demand it of his representatives would be his duly qualified successor; and until such demand had been made or an improper use of the money shown, there would be no breach of the condition of the bond.
    3. Demurrer to declaration — Copy of note. — In determining the sufficiency of a declaration upon demurrer the court can not look to the copy of the instrument sued on filed with the declaration, but only to the substance of it as set out in the declaration.
    Error to the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed January 22, 1884.
    Mr. W. C. Johns, for plaintiff in error;
    that when a contract on its face denotes the parries to it, the action must be between those parties, cited Phillips v. Singer Mfg. Co., 88 Ill. 305; Hunter v. Gillman, Bruce, 51; Gautzert v. Hoge, 13 Ill. 30; Steele v. Clark, 77 Ill. 471; Dix v. Mercantile Ins. Co., 22 Ill. 272; Larned v. Carpenter, 65 Ill. 543; Corbett v. Schumacker, 83 Ill. 403; Cottingham v. Owens, 71 Ill. 397.
    The pleader is always presumed to state his case as strongly in his favor as it will bear: Lemon v. Stevenson, 36 Ill. 49; Lemon v. Baldwin, 36 Ill. 53; Vining v. Leeman, 45 Ill. 245; Henkel v. Heyman, 91 Ill. 96.
    Mr. W. E. Nelson, for defendant in error; cited The People v. Holden, 82 Ill. 98; Nispel v. La Parle, 74 Ill. 306; Morley v. Town of Metamora, 78 Ill. 396.
   McCulloch, P. J.

This suit was originally commenced against plaintiff in error and one Jonathan Quinn, as sureties upon the official bond of one William L. Pitts, as supervisor of Cerro Gordo township. Plaintiff in error demurred to the declaration, which having been overruled, and he abiding thereby, judgment was rendered against him, the suit having first been dismissed as to Quinn, the other surety. The sufficiency of the declaration is the only question before us.

The suit was brought in the name of The People, etc., for' the use of the town of Cerro Gordo, while the copy of the bond filed with the declaration is made payable to the town. It is true the statute (R. S. Ch. 139, Art. XI, Sec. 1) requires the official bond of the supervisor to be made to the town, and also that suits shall be brought in the name of the town (Ibid. Art. V, Secs. 1 and 2), but we can not look to the copy of the bond filed with the declaration, as it is no part thereof, but must look to the count itself for the real course of action. Assuming, therefore, that the bond was made as alleged in the declaration, we are to inquire whether a cause of action is therein set out.

The material averments are that on the 10th day of May, 1882, the defendants as sureties, with said Pitts, since deceased, as their principal, did by their certain writing obligatory, jointly and severally acknowledge themselves to be held and firmly bound unto The People, etc., in the sum of one thousand dollars, upon condition thereunder written, whereby, after reciting that said Pitts had been duly elected supervisor of said town for the then current year, it was provided that if said Pitts should faithfully discharge all the duties of his said office required of or enjoined upon him by law, to the best of his skill and ability, then said writing obligatory to be void, otherwise to remain in full force and virtue; that said bond was duly approved by the town clerk and filed in his office, and thereupon became the official bond of said Pitts, who thereupon took upon himself the duties of his said office of supervisor, and entered upon the same, and held and exercised the said office thenceforth until the day of his death, to wit, the 15th day of September, 1882; that said Pitts did not faithfully discharge all the duties required of him by law as such supervisor, but wholly neglected and failed s.o to do, to the injury of said town. And for breach of the bond it is alleged that prior to the execution of said bond, Pitts had held the same office for the preceding year, and that before his re-election, to wit, on the 7th day of March, 1882, he, as such supervisor, for the preceding year had received from the town collector a large sum of money, being the dog tax or license collected in the year 1881; that no affidavits or proofs and certificates of damage by. destruction or injury of sheep were filed with said Pitts as such supervisor, prior to or on the first Monday in March,¡1882, by owners of sheep destroyed or injured in said town in the said year 1881, and that said Pitts paid no part of said license fund so received by him for the year 1881 to claimants of the same, as provided by statute, and that, thereby, the same became and was a general fund of the town in the hands of said Pitts as such supervisor, to be disposed of as such town might deem proper; that said Pitts in his life-time was not required by any order or direction of the said town, or by any request made by it, to account for or pay over the said license fund or any part of the same, upon any disposition thereof made by the said town, by means of which said premises the said town hath been, during all the time aforesaid, wholly deprived of the use of said license fund, and an action hath accrued, etc. The declaration then alleges, by way of general breach, a request made and a refusal on the part of defendants to pay the money for which the suit is brought, to the damage of plaintiffs, etc.

It may here be remarked that the securities were not bound to respond to any request made upon them for payment, until their liability had become fixed by some default committed by the principal or his representatives. The general averment of a request made upon them to pay the money, and a refusal on their part as alleged in the conclusion of the declaration, fixes no liability upon them. Ve must therefore look to the antecedent averments to ascertain their liability, if any existed.

By section 2, of “An Act to indemnify the owners of sheep in case of damage committed by dogs” in force July 1, 1879 (L. 1879, p. 51), it is provided that the collector shall pay over the amount received from dog licenses to the supervisor of his town, who shall first give bond to The People, etc., for the use of the inhabitants of said town, with at least two sureties to be approved by the board of supervisors of his county, conditioned that he will faithfully pay out said fund as in said act provided. Section 3 provides that the supervisor shall pay out of such funds to the owners of sheep in his town who shall make proof to him, before the first Monday in March in each year, of loss or injury to sheep by dogs other than their own, the full amount of the loss or injury so proved if there are funds sufficient to pay the same; but if not, then to pay the claimants fro rata according to their proof; and if after paying such losses and injuries there be a balance remaining in the hands of the supervisor it shall be turned over into the general funds of the town, to be disposed of as such town shall see proper.

It is alleged in the declaration that the money now sued for came into the hands of Pitts during his term of office next preceding that for which the bond in suit was given; that the same never had been disposed of by any order of the town, but became in his hands a part of the general fund, there having been no loss or injury proved according to the statute. The conclusion, then, sought to be reached by the pleader, is that the money having come into the hands of Pitts during one term of office, and the same remaining in his hands at its expiration, his sureties on his official bond for the succeeding term became responsible for the safe keeping and disposition of it. ¥e say this appears to be the conclusion sought to be reached by the pleader from the facts stated, for it does not appear from positive averment that the money was in his hands at the expiration of the term during which it was received, nor that he ever charged himself with it in any accounting with the town authorities. Prom anything averred in the declaration it does not appear that either of these conditions existed, one or the other of which seems to be necessary to render the securities upon the new bond responsible. Morley v. Town of Metamora, 78 Ill. 396; McIntyre v. Trustees, 3 Bradwell, 77.

But assuming that the money which came into Pitts’ hands on or before the first Monday in March, 1882, continued to be there until the time of the making and filing of the bond sued on in this case, so as to render the new sureties responsible for its safe keeping and the proper disposal of it, then we seek in vain for any averment in this declaration, to the effect that he did not do all the law required of him. He was bound to keep the money for the use of the town, and if he died with it in his possession, that fact, as we held in Price v. Farrar, 5 Bradwell, 536, does not of itself constitute a breach of the conditions of the bond.

Nor is it alleged that any successor to Pitts has ever been elected or qualified. If Pitts bad the money in his hands at the time of his death, which, for anything appearing in the declaration, he had, then the only proper person to demand it of his representatives would have been his duly qualified successor; and in that case until such demand had been made or au improper use of the money shown, there was no breach of the condition of the bond. • County Com’rs Greene Co. v. Smith, 3 Scam. 227.

For these reasons we are of opinion the court erred in overruling the demurrer to the declaration and in rendering judgment for defendants in error. The judgment of thecourt will therefore be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: Higbee, J.

text:
    Elijah McFarland v. Willard Washburn.
    Malicious prosecution. — Preponderance oe evidence. — To entitle a plaintiff to recover in an action for a malicious prosecution, it is not enough that the criminal charge preferred against him is malicious, but it must have been made without any probable cause by the party making it. The burden of proof is upon the plaintiff to sustain his allegation of want of probable cause by a clear preponderance of the evidence. As the plaintiff failed to do so in this case, the judgment is reversed.

      Appeal from the Circuit Court of Vermillion county; the Hon. J. W. Wilkin, Judge, presiding.
    Opinion filed January 22, 1884.
    Mr. F. Sookw altee and Messrs. Mann, Calhoun & Fbaziee, for appellant.
    Mr. E. C. Weight, for appellee.
   Higbee, J.

This was an action on the case for malicious prosecution brought by appellee against appellant. The cause was tried by a jury, resulting in a verdict in favor of the plaintiff below. A motion for a new trial was overruled, and judgment rendered on the verdict, from which appellant appeals to this court, and asks a i-eversal, mainly on 1he ground that the verdict was contrary to the weight of the evidence.

To entitle the plaintiff to recover in an action for a malicious prosecution, it is not enough that the criminal charge preferred against him was malicious, but it must have been made without any probable cause by the party making it. The policy of the law favors prosecutions for crimes, and affords to the citizen prosecuting, such protection as is consistent with public justice; and in all such cases, before the defendant can be made to respond in damages for instituting a criminal prosecution, it must appear, by a clear preponderance of the evidence, that he did not have probable cause for making the charge. This is not the character of the proof in the case before us. Appellant charges appellee with having committed an assault upon him, and upon this charge he was arrested and tried before a justice of the peace who discharged him. The declaration alleges that the prosecution was malicious and without probable cause.

The undisputed facts, as they appear by the record, are that appellant rode across the field of appellee on horseback, and on approaching a gate leading out into a public highway, was told by appellee, who was wmrking on a plow near by, that he could not go through; whereupon appellant got off of his horse and was about to open the gate, when appellee advanced with an iron wrench in his hand, and placing both cf liis feet on the lower bar of the gate and his arm across the top of it, refused to permit appellant to pass through, when an angry controversy occurred between them. The disputed fact is, as to whether appellee, while engaged in the quarrel, made the assault upon appellant for which he was arrested.

Appellee testified that he did not strike or attempt to strike appellant with the wrench, nor did he assault him in any manner; while appellant was equally positive in his testimony that appellee did strike at him over the gate with the wrench, and that he would have hit him had he not dodged back out of the way. In his evidence appellant was strongly corroborated by the testimony of two witnesses, Albert Cass and James Hayes, both of whom testified that shortly after the difficulty between the parties they were working in the hay field with appellee, who, in talking about it, said that McFarland was trying to go through the gate and he stopped him, and that if he, McFarland, had not dodged he would have knocked his-brains out. This testimony so fully and satisfactorily corroborates appellant as to create a clear preponderance of the evidence in his favor. It is true appellee attempts to corroborate his evidence by the testimony of several witnesses, but we find no material corroboration in their evidence. The statements of Ezra J. Bantz are entitled to but little weight. He was standing in the lane on the same side as the gate, at a distance of sixty rods from it, looking down the string of fence, with the gate standing a little in from the side he was on, and says he saw Washburn go toward the gate with his hand raised, as if motioning McFarland not to come in. He did not strike at McFarland. At his distance from the parties, situated as he was, it is not very probable that he could tell with any degree of certainty what appellee was intending or attempting to do when flourishing his raised hand. Besides, there is not a particle of doubt, from the evidence of several witnesses, including the justice of the peace who tried the cause, that this witness testified before the justice on the trial of the charge for assault, soon after the difficulty occurred, that he did not see anything of .the occurrence. The testimony of the other witnesses relied upon to- corroborate appellee, sheds no material light upon the subject.

As we have seen, the burden of proof is upon appellee. Not only has he failed to sustain his allegation of want of probable cause by a clear preponderance of the evidence, but the great weight of the evidence is so clearly in favor of appellant as to .convince us that manifest injustice has been done him.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Noah Lipe v. John D. Ludewick.
    Commissions of broker — When negotiations for a sale mat be treated as abandoned. — Appellant agreed that if appellee would find a purchaser and sell appellant’s farm to him, appellee might have all he could get for it over and above $10,317.50. Appellee found one K., who offered $10,500 for the farm with immediate possession. This offer was refused by appellee and appellant also refused to give immediate possession. Appellee moved away and all negotiations for a sale ceased. Six months later K., while looking at other property in the neighborhood, met appellant, negotiations were renewed and a sale made at $10,700, the farm then being worth $400 more than previously by reason of improvements made. Held, that under these circumstances, appellant was fully justified in treating all negotiations for a sale by appellee as abandoned, and in making sale himself either to K. or any one else who would purchase; that such an offer as was made by appellant to appellee could be terminated at willy at any time before it was acted upon.
    Appeal from the Circuit Court of Montgomery county, the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed January 22, 1884.
    Mr. J. M. Truitt, for appellant;
    as to burden of proof, cited Dinet v. Reilly, 2 Bradwell, 316; Robertson v. Dodge, 28 Ill. 161; C., B. & Q. R. R. Co. v. Stumps, 55 Ill. 367; Gibson v. Troutman, 9 Bradwell, 94.

      Where an agent undertakes to sell property for a specified sum before he can claim his commission, he must find a person ready, willing and able to purchase at the price and on the terms specified within a reasonable time after the contract is made, nothing in the contract appearing to the contrary: Clendemon v. Pancoast, 75 Penn. 213; Wylie v. Marine Nat. Bank, 61 N. Y. 416; Barnard v. Monnote, 3 Keys, 203; Jones v. Bierling, 31 N. Y. 162; McGavock v. Woodlief, 20 How. 221; Kock v. Emmerling, 22 How. 69; Love v. Miller, 53 Ind. 219; Schwartz v. Yearly, 31 Md. 270; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; McArthur v. Slauson, 53 Wis. 41; Atwood v. Cobb, 16 Pick. 227; Roberts v. Beatty, 2 Penn. 63; Phillips v. Morrison, 3 Bibb. 105; Crocker v. Franklin Mfg. Co., 3 Sumner, 530; Atkinson v. Brown, 20 Me. 67; Ellis v. Thompson, 3 M. & W. 445; Greaves v. Ashlin, 3 Camp, 426.
    Where no time for the continuance of the contract is fixed by its terms, either party is at liberty to terminate it at will, subject to the ordinary requirements of good faith: Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Satterthwaite v. Vreeland, 3 Hun, 182.
    Mr. E. Lane and Mr. Amos Miller, for appellee;
    that a, broker under a contract to find a purchaser, for a specified or reasonable commission, has performed his part of the contract when he, through his efforts and instrumentality, finds a person who afterward becomes the purchaser upon terms then agreed upon between vendor and vendee, cited Lawrence v. Atwood, 1 Bradwell, 217; Wharton on Agency, § 328; Frazer v. Wyckoff, 63 N. Y. 448; 16 Cent. Law Journal, 444-447; Carter v. Webster, 79 Ill. 435; McGovern v. Wooley, 20 S. C. 22; Lane v. Albright, 49 Ind. 275; Clendenen v. Pancoast, 75 Penn. 213; Rees v. Spruance, 45 Ill. 308; Short v. Millard, 68 Ill. 292; Jones v. Adler, 34 Mo. 440; Woods v. Stephens, 46 Mo. 555; Barnard v. Modnot, 6 Am. Law Reg. 209; Coleman’s Ex’rs v. Meade, 5 Cent. Law Journal, 409.
   Higbee, J.

This action was brought by Ludewick, a real estate broker in Hillsboro, to recover compensation claimed to be due him from Lipe for services rendered in the sale of his farm to one Jacob Klein. Appellee testified on the hearing in the trial court, that appellant agreed with him on July 5,1882, that if he would find a purchaser and sell appellant’s farm to him, he might have all he could get for it over and above the sum of $10,317.50, and that he should be well paid besides. Appellant, in his evidence, admitted that he agreed to give appellee all he could get above the price named, but denied that he was to give anything more.

In either view of the agreement, appellant was to receive only $10,317.50, and the compensation of appellee was to depend principally, if not entirely, upon the amount he could sell for in excess of that sum. Under the contract, appellee was entitled to no compensation until he had negotiated a sale for a sum equal to or greater than the sum named. This we think he failed to do.

On Sunday after the agreement was made, appellee took Klein, who resided in St. Clair county, to appellant’s house, in Montgomery county, to see the farm, and offered to sell it to him for $10,900. Klein refused to take it at that price, but offered $10,500 with immediate possession. This offer was refused by appellee, and appellant also refused to give possession, in case of a sale, before the first of the next March. Appellant and appellee, after consulting together, offered the place to Klein for $10,872.50, which he refused to give, hut still adhei’ed to his offer of $10,500 and immediate possession. Appellee and Klein then went to the depot at Hillsboro and Klein returned to St. Clair county. Appellee testified, that within a day or two after the parties separated he wrote a letter to appellant, informing him that Klein, while at the depot, had offered to give $10,900 for the farm with immediate possession. This letter was not offered in evidence, and appellant, although he admits he received a letter from appellee about the time named, denies that it contained the offer named; and Klein swears that he made no such offer, nor would he have given more than $10,500 for the premises. It is also apparent, from the letter of appellant of July 13th, in answer to the letter referred to, that he did not understand appellee’s letter as stating that he had contracted a sale at $10,900. Appellee saw Klein again on July 15th at his home in St. Clair county, when he again offered $10,500, with some slight modifications as to possession, but this offer was not accepted by appellee, nor communicated by him to appellant. This ended the negotiations between all the parties for more than six months.

Appellee swears that he never at any time offered the premises to Klein for less than $10,900 and we think-it very certain from all the evidence, that Klein did not contract to purchase at that price.

About the middle of July, appellee moved to Sparta in Randolph county, and all negotiations for a sale ceased. Neither Klein-nor appellant had heard from him for more than six months, when Klein, on January 26,1883, again visited Montgomery county, for the purpose of looking at other property, and meeting with appellant, negotiations were renewed and a sale made at $10,700. Both Klein and appellant testify that the farm was then worth four hundred dollars more than it was in July, by reason of lasting and valuable improvements made, and wheat sown on the premises since the previous July. Under these circumstances, the parties having failed to close a contract for the sale of the premises, all negotiations having ceased for more than six months, the parties becoming widely separated and not having heard from each other during all that time, and the premises having been increased in value by reason of the improvements made thereon, appellant was fully justified in treating all negotiations for a sale by appellee as abandoned, and in making sale himself either to Klein or any one else who would purchase.

In Wylie v. Marine Nat. Bank, 61 N. Y. 416, the seller did not wait on the broker as many days as appellant did months on appellee and yet the court held that, When a broker Dpens negotiations, but failing to bring the customer to the specific terms, abandons them and the employer subsequently sells to the same person at the price fixed, he is not liable to the broker for his commissions.”

Again such an offer as was made by appellant to appellee, may be terminated at will at any time before it is acted upon.

In Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, it was held, that when no time was fixed for the continuance of the contract by its terms, either party might terminate it at will, subject only to the ordinary requirements of good faith.

But it is contended by appellee, that he was prevented from selling because of a refusal on the part of appellant to deliver immediate possession. It is not necessary to determine what was a reasonable time within which to deliver possession under the agreement of the parties, because it does not appear that the refusal to deliver immediate possession caused the failure of the negotiations. The real trouble was, appellee was not willing-to accept the amount offered without reference to the question of possession. Had he made a contract of sale with possession to be immediately delivered, and submitted it to appellant for his action, a refusal on his part to execute it would have presented the question involved in this objection, but this he did not do; he accepted no offer made nor did he call upon appellant to execute any contract concluded by»him.

Again it is claimed by appellee that the letter of appellant of date July 13, 1882, was a limitation of the power of appellee to sell for less than $10,872.50. We do-not so understand it. It was a mere restatement of the price which they had agreed to ask of Klein, and had no reference to the terms of the agreement between themselves.

The verdict is so clearly and manifestly against the weight of the evidence, that justice requires it should be set aside and a new trial granted.

Judgment reversed and cause remanded.

Reversed and remanded.


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    Matilda A. C. Griffith et al. v. Martha M. Robinson.
    1. Contribution. — Where joint owners or tenants in common hold property incumbered or burdened in such a manner as to endanger the common title, either of the parties may make advances to protect the title, and compel contribution from the other owners in proportion to them interests in the common property.
    2. Right to contribution — Compensation por removing common burden. — The right to contribution does not arise out of any contract or agreement of the co-tenants to indemnify each other, but on the principle of equity that where two or more persons are subject to a common burden, it shall be borne according to them several interests, if or does it depend on the right to be subrogated to the rights of the creditor whose debts were paid. It is compensation given in equity for removing the common burden, and the proper forum in which to enforce it is a court of equity.
    3. Tenants in common — Real estate ordered to be sold por payment op debts op deceased. — Claims against an estate had been allowed and there were no personal assets to pay them, and the county court by a valid order binding on all the owner’s in fee as tenants in common of the lands inherited from their deceased father, had ordered the land sold to pay these debts. To save said real estate from sale, the hems, except appellee, paid off the allowances and costs in full, each paying his or her proportion thereof except appellee, who refused to pay any part of the same, and her prorata share was paid by appellant, and a bill in equity was filed by appellant to compel repayment from appellee of her share. Held, that while the court is not prepared to say that a personal decree should be rendered against appellee, yet an account should be taken of the amount due from appellee with interest, and a decree entered subjecting her interest in the land to sale for the payment of the same, should she neglect to pay it within some short time to be fixed by the court.
    Appeal from the Circuit Court of Adams county; the Hon. J. H. Williams, Judge, presiding.
    Opinion filed January 22, 1884.
    Mr. Walter Scoggin, for appellant;
    that the principle of contribution has been applied in the settlement of equities between heirs, cited Wilton v. Tazwell, 86 Ill. 29; Titsworth v. Stout, 49 Ill. 78; Kurtz v. Hibner, 55 Ill. 514; Stevens v. Cooper, 1 John. Ch. 425; Deltzer v. Scheuster, 37 Ill. 305; Gardner v. Diederichs, 41 Ill. 171; Louvalle v. Menard, 1 Gilm. 45; 2 Washburn on Esal Estate, 3d ed., 176.
    Privity of contract is not necessary in such cases: Wilton v. Tazwell, 86 Ill. 29; Story’s Eq. Jur. § 505; Campbell v. Mesier, 4 John. Ch. 334; Cheeseborough v. Millard, 1 John. Ch. 409; Bouvier Law. Diet., Title, Contribution.
    Mr. A. McMurray, for appellee;
    as to the right of subrogation, cited Bishop v. O’Conner, 69 Ill. 431; Wilkes v. Harper, 1 N. Y. 593.
   Higbee, J.

A bill was filed in the Circuit Court of Adams county, on June 22, 1882, by Matilda A. C. Griffith and A. G. Griffith, her husband, appellants, against Martha M. Eobinson, appellee, alleging, in substance, that the said Matilda and Martha were sisters, the children of one Jesse Eobinson, late of said county, who died July 6, 1879, intestate, leaving him surviving his said two daughters and certain other heirs named in said bill; that they, their brother, Milus G. Eobinson, and six children of a deceased brother, whose names are stated in the bill, were the only heirs of their deceased father, and as such, were the owners in fee as tenants in common of certain lands inherited from him, lying in said county; that letters of administration were granted on the estate of said intestate by the County Court of Adams county; claims in favor of the widow and creditors presented and allowed against the administratrix by said court to the amount of $---; the personal estate declared insolvent; a petition for leave to sell the real estate to pay said allowances was presented to said county court by the administratrix, to which all the heirs, including appellee, were made defendants and duly served witli process, and at the April term, 1882, an order of said court was made and entered of record, ordering the said administrator to sell said lands to pay said allowances and ail costs and charges of said sale, or so much as was necessary for that purpose. And thereupon, on the first day of June, 1882, to save said real estate from sale under said order, and to preserve the same for said heirs, and to prevent further costs and expenses, the heirs of said Jesse Robinson, except appellee, paid off said allowances and costs in full, each paying his or her proportion thereof, except appellee, who failed and refused to pay any part of the same, and her pro rata share was paid by the appellant, Matilda A. 0. Griffith, amounting to the sum of $-. That appellee, although requested, refused to repay the same or any part thereof. The bill prays that appellee be required to repay the share paid for her to relieve the lands from the common charge, and that the same be made a lien on her interest in the land, and for such relief as she may be found entitled to on the hearing of the bill.

A demurrer was filed and sustained to the bill, which was dismissed, and the record brought to this court by appeal, and errors assigned upon the rulings of the circuit court in sustaining the demurrer and dismissing the bill.

It is a familiar principle in equity, that where joint owners or tenants in common hold property incumbered or burdened in such a manner as to endanger the common title, either of the parties may make advances to protect the title and compel contribution from the other owners in proportion to their interests in the common property. This doctrine has been applied to the payment of taxes, mortgages, judgments, liens, mechanics’ liens, and to purchasing in outstanding titles. And in the case of Wilton v. Tazwell, 86 Ill. 29, it was applied to the purchase of a homestead and a widow’s right of dower, not assigned, by one tenant in common, the- others having availed themselves of the benefits of the purchase, upon the principle that the party claiming an equality of benefit must submit to an equality of burden. The right to contribution .in equity applies with equal force to the payment of every claim or incumbrance by one joint tenant or tenants in common, which would, if not satisfied, defeat the common title, when the whole claim must be satisfied before the interest of either can be protected.

The application of these well understood principles of equity to the case made by the bill before us, leaves no doubt in our minds that Mrs. Griffith was entitled to contribution from appellee. The claims had been allowed, there were no personal assets to pay them, and the county court, having compíete jurisdiction over the subject-matter and the parties, by a valid order binding on all the tenants in common, had ordered their land sold to pay these debts. This was a charge upon the entire property, which could not be removed in parts. Nothing short of the payment of the whole of the allowances and costs, to pay which the land was ordered to be sold, would prevent a sale of the entire title, from which there was'no redemption. To protect the estate from this threatened sale, appellant, Mrs. Griffith, not only paid her fro rata share, but that of appellee, who now claims an equality of benefits in the common estate and must submit to an equality of burden.

The right to contribution does not arise out of any contract or agreement of the co-tenants to indemnity eaeh other, but on the principle of equity, that where two or more persons are subject to a common burden, it shall be borne according to their several interests. Nor does it depend on the right to be subrogated to the rights of the creditor whose debts were paid. It is compensation given in equity for removing the common burden and the proper forum in which to enforce it is a court of equity. 1 Story’s Equity Juris., Secs. 483-á and 505.

We are not prepared to say.that a personal decree should be rendered against appellee, but an account should be taken of the amount due from her with interest, and a decree entered subjecting her interest in the land to sale for the payment of the same, should she neglect to pay it within some short time to be fixed by the court.

Decree reversed and cause remanded.


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    Frederick Einstman v. Samuel W. Black et al.
    1. Partnership in running a perry boat — Duties required by iaw op ferryman. — A and B entered into written articles of partnership for the purpose of running and operating a steam ferry boat over and across a certain river, A to furnish the boat in good running order with all the appurtenances, etc., and B to run and operate the same to their mutual advantage. C drove his cattle to the ferry to be crossed, but tbe water was so low that the boat could not cross, and was not running. He made an arrangement with B to assist him in swimming the cattle across the river, and in attempting to get them across in this manner a portion of the cattle were drowned. A was not present at the time and gave B no authority to cross persons or property other than that contained in the written agreement. Held, as B’s attempt to swim the cattle across the river was an act wholly outside of the duties required of him as ferryman, either by law or tbe contract of partnership, A is not responsible for the manner of its performance.
    2. Construction op contract — Duty op court. — Where the question whether the act of swimming cattle across the river by B was within the scope of his authority as a partner and binding as suck upon A depended solely upon tbe construction to be given to a written contract of the parties, it was the duty of the court to construe the contract and to inform the jury what authority, if any, it conferred as to the act in question.
    Error to the Circuit Court of Morgan county; the Hon. C. Epler, Judge, presiding.
    Opinion filed January 22, 1884.
    Mr. George W. Smith, for plaintiff in error;
    as to the duties of a ferryman, cited Fisher v. Clisbee, 12 Ill. 314.
    Messrs. Morrison & Whitlock, for defendants in error;
    cited Lewis v. Lewis, 92 Ill. 237; West Chicago, etc., v. Sheer, 8 Bradwell, 367; Conn. Mut. Fire Ins. Co. v. Ellis, 79 Ill. 516; Calvert v. Carpenter, 96 Ill. 63.
   Higbee, J.

Defendant in error seeks to recover damages against plaintiff in error in an action on the case upon the alleged ground that plaintiff in error and one Samuel Bartholomew were the owners of and operating a ferry across the Illinois river at Meredosia, and that as ferrymen, they attempted to cross a drove of cattle for defendant in error and so carelessly discharged their duty that a part of the cattle were drowned.

The trial below resulted in a judgment against Einstman only, who brings the record here and assigns several errors upon the rulings of the trial court.

It appears from the evidence that plaintiff in error, who resided at Chapin, Morgan county, and was the owner of a steam ferry boat, and Bartholomew, who resided at Meredosia, entered into a written agreement on August 11, 1881, by which they formed a co-partnership for the purpose of running and operating the steam ferry boat Convoy over and across the Illinois river at Meredosia — Einstman to furnish the boat in good running order, with all the appurtenances, tackle and skiffs that are usually kept on such a boat, and Bartholomew to yun and operate the same td their mutual advantage, to hire the hands, pay all expenses out of the receipts and divide the profits equally with Einstman. Under this agreement the business of ferrying was carried on by the parties under the management and control of Bartholomew, Einstman giving no personal attention to it. On the 30th day of August, 1881, Black drove his cattle to the ferry to be crossed, but the water was then so low that the boat could not cross, and was not running. He made some arrangement, just what does not appear, with Bartholomew, to assist him in swimming the cattle across the river, and in attempting to cross them in this manner, the injury was sustained for which this suit was brought. Einstman was not present at the time the attempt was made to swim the cattle across the river and knew nothing of it until afterward. He gave Bartholomew no authority to cross persons or property, other than that contained in the written articles of co-partnership.

At the instance of defendant in error the court gave the following instructions:

2. “ It is the law of the land that each member of the firm is bound by the acts of any one of them in the usual line of the duties of said partnership while acting in the scope of the partnership business, and no member of a firm can repudiate the acts of another member in the line of the duties of such firm and acting within the scope of the partnership business; and in this case, if you find from the evidence that it was a part of the duties of the firm of Einstman & Bartholomew, the defendants, and within the scope of their partnership business to swim or drive cattle across the river,» then the fact, if in evidence, that Einstman was not present at the time the cattle in controversy were being carried or swam across, that would not release him from a liability, if shown by the evidence, which the firm have incurred by the acts of Bartholomew.”

4. If, from the evidence in this case, the jury find that the defendants, Einstman and Bartholomew, were partners engaged in running a public ferry boat across the Illinois river at Meredosia, then in law they were common carriers and in duty bound to carry such property and persons across said river as are usually carried by a ferry boat of the same hind; and the fact, if in evidence, that they had taken out-no license, would not release them from such duty as a common carrier.”

The rule of law as to the right of a partner to bind his co-partner for acts done within the scope of the partnership business is correctly stated in the first part of instruction number two; but whether the act of swimming the cattle across the river by Bartholomew was within the scope of his authority as a partner and binding as such upon Einstman, depended solely upon the construction, to be given to the wi’itten contract of the parties and instead of calling upon the jury, as was done by this instruction, to determine the extent of Bartholomew’s authority to bind his co-partner, the court should have construed the contract and informed the jury what authority, if any, it did confer as to the act in question. It was not strange that a jury composed of men unlearned in the law and who were not accustomed to construe written contracts should have adopted a wrong construction.

A ferry is a place where persons and things are taken across a river or other stream in boats or other vessels for hire. Bouvier’s law Dictionary; title, “Ferry.” It is a franchise granted by the State and regulated by statute. It may be defined to be a right to transport persons and property across a water course and land within the jurisdiction granting the franchise and receive tolls or pay therefor. Ferrypnen in the exercise of this franchise as to property received on their boats are exercising a calling in many respects analogous to that of common carriers and in some cases are held to similar responsibilities. In this State it is made a penal offense by statute to ferry for profit or hire without a license from the county board. The act of swimming cattle across a river is no part of the duties required of a ferryman by law, and he could not be held liable for its non-performance. It is clear that such an act was not authorized in this case by the contract of the parties. By it Einstman onty authorized Bartholomew to bind him for such acts as come within the scope of his duties in operating the ferry, and his attempt to swim the cattle across the river being an act wholly outside of the duties required of him either by the law or the contract, no responsibility could attach to Einstman for the manner of its performance and so the court should have informed the jury.

If we were to concede that the fourth instruction announced a correct abstract principle of law, yet as applied to the facts of this case it could hardly have failed to mislead the jury. It must have been understood by them as attaching" the responsibility of a common carrier to Einstman for the unauthorized act of Bartholomew.

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

Judgment reversed.


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    George G. Blunt v. Johh L. Ashurst.
    Instructions — Evidence.—As the instructions given by the court ignore certain material and well established facts upon the questions at issue, and as the evidence is too loose and unsatisfactory to support so large a verdict, the judgment is reversed and the cause remanded.
    Error to the Circuit Court of Mason county; the Hon. C. Epler, Judge, presiding.
    Opinion filed January 22, 1884.
    Messrs Northrup & Prettyman, for plaintiff in error.
    Messrs. Eullerton & Wallace, Mr. W. H. Campbell and Mr. John W. Pitman, for defendant in error.
   Higbee, J.

Plaintiff in error, a resident of Chicago, was, on November, 26, 1879, the owner of the right to manufacture and sell what was known as Blunt’s “Press Drill,” and defendant in error, a resident of Mason county, being desirous of engaging in manufacturing said drills, a contract was entered into between them, by which plaintiff in error agreed to introduce and sell the drill by himself aud sub-agents to be employed by him for that purpose; he to order, on or before the 10th day of January of each year, all the drills he, at that time, thought he could sell during the following year, with the privilege of enlarging the order, if he shall feel justified in doing so, on or before the first day of April of each year, or at any time thereafter. Defendant to manufacture the drills at Havana and to fill all such orders, or notify appellant if it was impossible for him to comply therewith, and to furnish to plaintiff on or before the first day of January of each year a list of prices and terms of sale for the ensuing year, which were not to be increased during the succeeding year, defendant to discount to plaintiff the retail price of the drills sold by him thirty per cent., as compensation for assuming the obligation of selling the drills. Said contract also contained the following clause, for the alleged violation of which this suit was brought: It is further agreed between said parties, that if at the end of any year there are more of those drills i ordered by said Blunt unsold than the said Blunt’s interest of said commission or discount, will pay for, said drills are to be kept at said Blunt's expense to the next season or until sold; said Ashurst to not suffer any discount from net price on account of shrinkage in value.”

In pursuance of the terms of this agreement, plaintiff ordered in January, 1881, for the trade of that year, twelve hundred drills, two hundred of them to be delivered by the first day of May, and the balance by the 10th of September following; and in April gave an additional order for two hundred to be delivered June 1st, aud six hundred to be delivered August 20th, of the same year.

On September 10, 1881, defendant had manufactured 998 drills and had some others under way, when, owing to their slow sale, he ceased to manufacture them.

Plaintiff had advertised extensively, and established agencies in Illinois, Ohio, Missouri, Kansas, Nebraska, Michigan and Indiana, but, owing to great competition, had met with but limited success in making sales. Of the 998 drills made in 18S1, it is claimed by defendant that only 180 were sold that season, 48 in 1882, and the rest, 770, carried over until November 18, 1882, when they were sold by defendant to the Havana National Bank.

In accordance with the terms of the written agreement defendant in November, 1880, furnished the following terms and prices for sales for the year 1881:

Drills with six wooden wheels, cash, $75.00 « “ “ iron “ “ $78.00

“ “ eight wood or iron wheels $85.00

Terms: Three dollars added to cash prices on six or twelve months time with eight per cent, interest. In August the parties agreed to deduct five dollars from the selling price; of each drill, and in November, 1881, defendant fixed the; price for the year 1882, the same as at the close of the previous year.

This suit was brought to recover compensation for taking care of the drills from the close of the season of 1881 until they were sold, and for the discount from the net price on account of shrinkage in value as stipulated in the clause of the contract above set out. A trial was had before a jury resulting in a verdict and judgment in favor of defendant for $6,253.53, from which plaintiff in error prosecutes a writ of error to this court, and assigns numerous errors.

On the trial of the cause the court, at the instance of defendant in error, gave to the jury the following instruction:

“If the jury find from the evidence and the instructions in this case that the contract sued on remained in full force and effect as to the drills manufactured in 1881, and that seven hundred and seventy of those drills, or any other number of them, remained unsold by the defendant at the commencement of this suit, and that there had been a shrinkage in the value of the drills so unsold below their net price, then the defendant is liable to the plaintiff in this suit for such shrinkage, and the jury will allow to the plaintiff whatever they may find from the evidence was the value of such shrinkage.”

This instruction ignores the important fact that 546 drills were sold in 1882 by plaintiff in error and his agents at the prices fixed by defendant in error for their sale in that year, and that therefore no loss was sustained by reason of their shrinkage in value. By the express terms of the contract defendant in error was to fix the prices at which the drills should be sold. The prices for sales in 1882 were fixed by him in the fall of 1881, before the end of that business year, and were to be the same as for 1881, and no evidence tends to show that a single drill was sold below the price on account of shrinkage or depreciation in value.

But defendant in error contends that the drills sold by plaintiff in error and his agents in 1882 were new drills, made that year, and not the ones that had been carried over from 1881. By the contract, plaintiff in error was to give a written order for tiie manufacture of all the drills to be sold by him, and it was only on such as he should order and fail to sell during the year that he was to be responsible for shrinkage, and defendant in error had no right, either morally or legally, to continue in store at his expense, drills manufactured on his order, and send him and his agents drills which he had not ordered or agreed to sell, without his consent, and the record shows no consent on his part to any such arrangement.

The next instruction given for defendant in error "informed the jury that the 770 drills made in 1881 and not sold at the end of that year, were to be stored and kept at the expense of plaintiff in error, and that if defendant in error kept and stored them, or any of them, or bestowed labor and care on them, or expended money to protect them from injury, he was entitled to recover therefor. This instruction wholly ignores the well established fact that at the close of 1881, of the 770 drills made that year, 325 were in the hands of the agents of plaintiff in error in the different States where he had established agencies, under contracts to care for and store them at the expense of the agents, which was done so far as the evidence shows. [Notwithstanding these drills in the hands of plaintiff’s agents never cost defendant in error a dollar for their storage, so far as the evidence shows, it is highly probable that the jury under this instruction charged the storage of the whole 770 against plaintiff in error.

These reasons, as well as the fact that the evidence in the case seems loose and unsatisfactory to support so large a verdict, have.led us to the conclusion that this cause should be again submitted to a jury under instructions more carefully guarded.

Judgment reversed and cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Samuel C. Wagener et al. v. Thomas Richards, use, etc.
    Practice — Record must be certified under seal. — Where what purports to be the record in a case is not certified under the seal of the trial court, it is a nullity.
    Appeal from the Circuit Court of Christian county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed January 22, 1884.
    Mr. J. C. Essiok, for appellants.
   Per Curiam.

What purports to he the record filed in this case is not certified under the seal of the trial court, and is therefore a nullity, as has been repeatedly held by both the Supreme Court and this court. Cowhick v. Gunn, 2 Scam. 417 ; Morse v. Williams, 4 Scam. 285; Day v. City of Clinton, 5 Bradwell, 605; Mason v. Gibson, 13 Bradwell, 463.

The appeal is dismissed at cost of appellants with ¡procedendo.

Appeal dismissed.


text:
    William W. Ives v. Alice Hulce.
    1. Bill of sale — Who may question validity. — Only those who are creditors at the time of the execution of a bill of sale can question its validity. Such transactions are only void as to prior and not as to subsequent creditors.
    2. Delivery. — Considering the character of the property purchased, and the possession as taken by appellee, the court is of opinion that there was a sufficient delivery to make the sale good as against creditors and subsequent purchaser's.

      Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed January 22, 1884.
    Messrs. Herrick, Lugas & Spekoer, for appellant;
    that all sales of chattels where the possession is permitted to remain with the vendor are fraudulent fer se, and void as to creditors and subsequent purchasers unless the retaining of the possession be consistent with the deed, cited Thornton v. Davenport, 1 Scam. 297; Kitchell v. Bratton, 1 Scam. 300; Rhines v. Phelps, 3 Gilm. 455; Thompson v. Tech, 21 Ill. 73; Dexter v. Parkins, 22 Ill. 143; Lewis v. Swift, 54 Ill. 436; Teckner v. McClelland, 84 Ill. 471; Allen v. Carr, 85 Ill. 388; Razier v. Williams, 92 Ill. 189.
    Mr. W. E. Hughes, for appellee;
    cited Brown v. Riley, 22 Ill. 45; Wright v. Grover, 27 Ill. 426;. Hart v. Wing, 44 Ill. 141; May v. Tallman, 20 Ill. 443; Straus v. Minzesheimer, 78 Ill. 492.
   Per Curiam.

This was an action of replevin commenced before a justice of the peace by appellee against appellant, to recover possession of certain show cases and fixtures claimed by appellee as her property.

The property had been levied on by appellant, a constable, as the property of Margaret J. Fifield, under certain writs of attachment issued against her. The property not having been obtained under the writ of replevin, the suit was prosecuted under the statute, as an action of trover, and on appeal to the circuit court a judgment was obtained by appellee for §175, to reverse which appellant brings the case to this court.

For several years prior to the occurrences resulting in this litigation, Margaret J. Fifield had been engaged in the millinery business, and had in her employment in her store or shop her daughter Alice Hulee. On the 29th of Hovember, 1881, she borrowed of her daughter §175, and executed to her an absolute bill of sale of the property in controversy, consisting of lockers, mirrors, tables, show cases, carpets, desk and fixtures of a millinery establishment. The mother and daughter continued in the occupation of the shop as before, and under an agreement made at the time of the sale the property purchased was rented to the mother to be used by her in carrying oh her business at three dollars a month. Some of the articles purchased could have been removed, but other articles, such as the lockers, which were high show cases and built in the room, could not, without being torn in pieces.

On the evening of the execution of the bill of sale, appellee took the key of the store and afterward remained there working with and for her mother as one of the milliners. On the 20th of January, 1882, the property in question was levied on under writs of attachment issued against Margaret J. Fifield and afterward sold to satisfy the same. It is claimed by appellant that the possession of the property was permitted to remain with Mrs. Fifield, and therefore the sale was fraudulent f&r se and void as to creditors and subsequent purchasers.

We are not prepared to hold, considering the character of the property purchased and the possession as taken by appellee, that there was not a sufficient delivery to make the sale good as against creditors and subsequent purchasers. .But if it be conceded that such delivery was not sufficient, still none but those who were creditors at the time of the execution of the bill of sale can question its validity. Such transactions are only void as to prior, and not as to subsequent creditors. Wooldridge v. Gage, 68 Ill. 159.

The fatal weakness of appellant’s case is that the record fails to show that Gorton, Chapman & Co., or any others whose executions or attachments were in the hands of appellant, and were levied on the property in controversy on the 20th and 26th of January, 1882, were creditors of Margaret J. Fifield when she executed the bill of sale to appellee on the 29th of November, 1881.

The judgment must be affirmed.

Judgment affirmed.


text:
    City of Mattoon v. Harry E. Holmes.
    Practice. — Where appellee filed a printed brief in support of his motion to dismiss the appeal, which motion was overruled, and no brief going to the merits of the case was filed by appellee, and those filed by appellant at the time of docketing the case remained wholly unanswered, -the judgment of the court below was reversed, and the cause remanded for appellee’s failure to comply with the rules of the court.
    Appeal from tlie County Court of Coles county; the Hon. Charles Bennett, Judge, presiding.
    Opinion filed January 22, 1884.
    Mr. Thomas L. McGrath, for appellant.
    Messrs. Craig & Craig, for appellee.
   Per Curiam.

This suit was regularly placed upon the docket, and appellant’s abstracts and brief were filed on the 20th day of November, 1883. On the 21st day of the same month, appellee entered a special appearance, and moved this court to dismiss the appeal, filing a printed brief in support of his motion, to which appellant filed a printed reply. On December 4th, after full consideration of the motion, the same was overruled. Since then, no brief going to the merits 'of the case has been filed by appellee, and those filed by appellant at the time of docketing the case remain wholly unanswered. For this failure to comply with the rules of this court, the judgment of the court below will be reversed and the cause remanded..

[Reversed and remanded.


author: Pee Cueiam.

text:
    George F. Forney v. John M. Thompson.

      1. When judgment will be bevebsed. — Two things are required to reverse a judgment: first, that manifest error has intervened in the proceedings of the court below, and second, that such error has operated prejudicially to the party complaining of it. When either of these requisites is wanting the judgment may he affirmed.
    2. Instructions — Verdict undisturbed. — Although the instructions given on behalf of both parties were argumentative, contradictory and misleading, yet as the court is of opinion that appellee was entitled to a larger verdict than the jury gave him, and appellant having failed to show that he has been wronged by the verdict, the judgment is affirmed.
    Appeal from the County Court of Ford county; the Hon. H. P. Keaoh, Judge, presiding.
    Opinion filed January 22, 1884.
    Messrs. Tipton & Moffett, for appellant.
    Mr. A. Sample, for appellee.
   Pee Cueiam.

Ve deem it proper to say in this, case that in affirming the judgments of the trial courts, this court is not to be understood as adopting every proposition of law that may be given to the jury by way of instructions in any given case. Two things are required to reverse a judgment: first, that manifest error has intervened in the proceedings of the court below; secondly, such error must have operated prejudicially to the party complaining of it. "When either of these requisites is wanting, the judgment may he affirmed. In this case the instructions given to the jury on behalf of both parties, upon the questions as to whether or not there had been any warranty of the machine sold, whether or not there had been any breach of such warranty, and what was the proper measure of damages resulting from such breach, were so numerous, so argumentative, so inartificially drawn and so contradictory of each other, that they could only serve to confuse rather than enlighten the jury upon the law of the case.

Upon looking into the evidence vye can not see that any injustice has been done appellant by the verdict. The question as to whether or not the sale was absolute or only conditional was properly left to the jury, upon instructions fully as favorable to him as he could have asked. That fact being1 found against him, the next one was whether or not there had been a warranty and a breach of it. Upon this point the jury evidently found in his favor, hut we think wholly without sufficient evidence. The words spoken of at the time of the sale do not amount to a warranty. The jury deducted from the contract price a larger sum on account of a breach of the warranty than appellee proved he had been damaged by a failure upon appellant’s part to cut the oats according to contract. ¥e are therefore of opinion that appellee was entitled to a larger verdict than the jury gave him. Upon any view that can be taken of the case, appellant haying failed to show that he has been wronged by tlie verdict, the judgment will be affirmed.

Judgment affirmed.


text:
    Chicago and Alton Railway Company v. Abraham Buck.
    1. Railroad pences — Fastenings to gates. — A railroad company is not required to fasten gates to railroad fences so that it is impossible for stock to open them under any and all circumstances. It has a right to use the fastenings commonly adopted in the country by persons reasonably prudent and careful, and regarded by them as safe, for the purpose.
    2. Negligence — Duty op injured party. — The law imposes upon a party injured from another’s breach of contract or tort, the active duty of making reasonable exertions to render the injury as light as possible. If, by bis negligence or willfulness, be allows the damages to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of bis duty, falls upon him. .
    3. Same. — In all cases where one sees the gate of his neighbor open, the latch insecure, a hoard off the fence, or any other defect which can be at once remedied without any considerable cost or labor, and his own stock is liable by reason thereof to escape from bis premises and receive injury, it is his duty to protect himself against the threatened danger by closing the open gate, securing the defective fastening, nailing on the loose hoard, or otherwise securing himself against the threatened loss.
    4. Weight of evidence. — The affirmative of the issue to show negligence of appellant’s servants in managing the locomotives and train was upon appellee, but as the weight of the evidence was so clearly with appellant as to show that the jury have done manifest injustice, the judgment is reversed.
    Appeal from the Circuit Court of Logan county; the Hon. G. W. Herdman, Judge, presiding.
    Opinion filed February 5, 1884.
    Messrs. Bluest & Hobltt, for appellant;
    that where stock are killed on a railroad track, if the company has maintained proper fences, the rate of speed at which its trains are moving has nothing to do with the question of responsibility, cited C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; White v. N. & B. R. Ry. Co., 15 Hun, 333; Such v. C. & C. R. R. Co., 2 West. L. M. 486; C. & A. Ry. v. Robinson, 9 Bradwell, 91.
    Messrs. Beach & Hodnett, for appellee;
    that the gates and bars at farm crossings are part of the fence that railroad companies are bound to keep up under the statute, cited Great West. R. R. Co. v. Helm, 27 Ill. 199; I. C. R. R. Co. v. Arnold, 47 Ill. 173; C. & N. W. Ry. Co. v. Harris, 54 Ill. 528.
    A railroad company is liable for killing stock if killing could be avoided by the exercise of ordinary care and diligence: Shuman v. I. & St. L. R. R. Co., 11 Bradwell, 472; R R., I. & St. L. R. R. Co. v. Lewis, 58 Ill. 49; R. R., I. & St. L. R. R. Co. v. Irish, 72 Ill. 404; R. R., I. & St. L. R. R. Co. v. Rafferty, 73 Ill. 59.
    Unless manifestly against the weight of the evidence, the verdict will not be disturbed: Crain v. Wright, 46 Ill. 107; Wolbrecht v. Baumgarten, 26 Ill. 291; Chittenden v. Evans, 48 Ill. 52; Calvert v. Carpenter, 96 Ill. 63.
   Higbee, J.

This was a suit brought in the Logan Circuit Court by Abraham Buck against the appellant railroad company, to recover damages for the loss of several horses, alleged by him to have been killed by the carelessness of the servants of the company in operating its trains of cars on its road. The trial was before a jury, resulting in a verdict and judgment against appellant, from which an appeal is prosecuted to this court, and a reversal asked, mainly upon the ground that the verdict was against the evidence in the case.

Mr. Buck was the owner of a farm, through which the track of appellant’s road lay. On one side of the road was a pasture separated from the right of way by a fence belonging to the railroad company, and near to his house was a gate, leading out of the pasture to a farm crossing, constructed for the use of the farm. About eight o’clock on Saturday night, October 21, 1882, appellee had, running in his pasture, twenty-two head of horses; between that time and six o’clock the next morning, the horses had escaped through the gate onto the railroad track, and four of them were so badly injured that they had to be killed.

The first ground upon which it is claimed that appellant is liable for the injury to the stock is, that the fastenings on the gate were not sufficient to prevent the horses from opening the same and going onto the track. There was no complaint of the sufficiency of the fences, and appellee himself testified that the same gate through which the horses passed, had stood at that farm crossing since 1866. The only defect complained of, was the manner of fastening-the gate. This was done with an iron hook, attached to the gate at one end, and the other hooked into an iron staple driven into a large oak post. Appellee says, “there were two staples on the post with a latch on the gate to hook into them, one lower down than the other; when hooked in the upper one, it drew the gate nearly up against the post.”

He says “ it had a little over an inch play, perhaps an eighth of an inch over; and I think stock could get the gate open by rubbing against it and getting the hook out; I mean by rubbing and striking against the hook. A horse could lift it out by getting hold of it with his teeth.” By other evidence it appears, that in order to fasten the hook into the staple it was necessary to raise it up, and it could only be unfastened by lifting the gate up to get the hook out of the staple in the post. It seems that appellee and his family were in the constant habit of passing through this gate. He passed through it the evening before the accident, and his hired man, Mr. Former, went through, between seven and eight o’clock, and fastened the hook, and the gate was closed the next morning. It does not appear just how long these fastenings had been used, but evidently for several years before the horses were injured, with the slight change that this hook was set just above another that had been formerly used. And even after the horses were killed, the same fastenings seem to have been used for more than six months, without any change or complaint by appellee.

A short time before the horses were killed, the fence repairer of the road was engaged in repairing the fence, and called on Mr. Buck to point out any repairs needed on the line of this fence, which he did, and the repairs were made; but he did not speak of the gate or the fastening as needing any repairs. From all this evidence, we are satisfied that both the employes of the road, whose duty it was to keep the fences in repair, and Mr. Buck, regarded the fastenings to the gate sufficient, under ordinary circumstances, to turn stock. Had Mr. Buck regarded them as unsafe and his stock in danger, it is strange that no complaint was heard from him, and still more so, that he did not mention the fact to the fence repairer when called upon for that purpose.

It is not shown whether the gate was opened in the night by the horses or by some person who had passed through. In the whole sixteen years it had been there, it had never been opened by stock, so far as the evidence shows.

The company was not required to fasten the gate so that it was impossible for stock to open it under any and all circumstances. It had a right to use the fastenings commonly adopted in the country by persons reasonably prudent and careful, and regarded by them as safe, for the purpose. It is not likely that many gates could be found in city or country, fastened with latch or hook, that it would be impossible to open by the nose or teeth of a horse if dexterously applied for that purpose. To hold that the company must provide against such contingencies, would be to adopt a standard of diligence that would make it an insurer of the sufficiency of its fences under all circumstances. This the law does not require.

But, admit that the fastening on the gate was so clearly dangerous as to charge the servants of appellant with notice of that fact, and made it their duty to repair it, that fact was necessai’ily known to appellee and his servants, who were in the constant use of the gate, and passed through it and used the fastening only the night before the horses were killed. Had he no duty to perform? Could he, knowing the dangerous condition of the gate, and that his twenty-two head of horses were liable at any moment to open it and go upon the track and be exposed to injury from passing trains,' sit quietly by and rely upon the law to compensate him for any injury that might be done his stock? On the contrary, the law imposes upon a party injured from another’s breach of contract or tort the active duty of making reasonable exertions to render the injury as light as possible. If, by his negligence or willfulness, he allows the damages to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of his duty, falls upon him. Sutherland on Damages, Yol. —, p. 148. In an action for damages resulting from the alleged injury to crops through default of the defendant in not building or repairing a fence, or his tortious opening of the same, where the party suffering from the injury is aware of the fact and the cause, and that by a little timely labor and expense the damages could be avoided, the law imposes the duty on him to stay the injury, when he is in a favorable situation to do it, and enforces the duty by confining his redress for the injury to compensation for the necessary and proper means of prevention. Id. p. 150; Andrews v. Jones, 36 Tex. 149; Campbell v. Miltenberger, 26 La. An. 72; Loker v. Damon, 17 Pick. 284; Fisher v. Gachel, 40 Mo. 475; Waters v. Brown, 44 Mo. 302.

If the gate did not appear to appellee as likely to endanger the stock, as no doubt was the case, then the servants of appellant, who had far less opportunity to know, were not chargeable with notice or neglect in failing to repair; but if it was apparent to him that the fastening was so insecure as to endanger the horses, he had it in his power to have secured it until notice could be given, and in the absence of appellant’s servants it was his duty to have done so. This he could have done without any considerable labor or expense. A nail over the latch, a rope tied around the bar of the gate and the post, and perhaps other means not more expensive, would have avoided the apparent danger and averted the injury he now sues for. It can not be that the law will compensate a person for damages foreseen by him and which can be prevented with trifling exertion or expense; and we think it may be laid down as a safe rule, that in all cases where one sees the gate of his neighbor open, the latch insecure, a board-off of the fence, or any other defect which can be at once remedied without any considerable cost or labor, and his own stock is liable by reason thereof to escape from his premises and receive injury, it is his duty to protect himself against the threatened danger by closing the open gate, securing the defective fastening, nailing on the loose board, or otherwise securing himself against the anticipated loss.

It is next contended by appellee that assuming that his horses were on the railroad track without the fault of appellant, he is entitled to recover the value of his horses, killed because of the negligence of appellant’s servants in managing the locomotive and train after the horses came onto the track.

The evidence on this subject is voluminous, and as the case must go before another jury we forbear discussing it in detail. No witness saw the accident, and appellee, to sustain the allegation qf negligence, relies wholly on circumstantial evidence, consisting in the appearance of the tracks of the horses, the manner in which they were thrown from the track, and the marks on the ground at and near the place where the accident occurred. It is contended from these indications that the train that struck the horses was going north, and that these evidences tend to show that they were struck after they had been chased a considerable distance, at a place where the view of the track was unobstructed, and that with ordinary care the employes of the road should have seen the horses in time to have saved them.

On the other hand, but three trains passed north after the time the horses were known to have been in the pasture in the evening, before they were found injured the next morning. The first was a freight train, Ho. 11, which passed the place of the accident not far from eleven o’clock, p. m. ' The next was the regular passenger which passed between twelve and one o’clock, and the remaining train was a special, carrying Gfen. Sherman and party, which passed the place of the accident near five o’clock, a. m., running at a rate of speed of over fifty miles an hour. The engine driver of each of these trains, and most of the firemen and brakemen of each, were put upon the stand as witnesses, and each. and all testified that they neither saw or struck any stock at or near the place named that night. It is in proof, however, that it was foggy and dark toward morning, and that it was impossible to see any considerable distance ahead by the head light. Three trains passed south during the night; the employes of two of them testify that no stock was struck or injured by their trains; the third was a freight that passed by the place of the accident not far from two-fifteen a. m. The engine driver and conductor of this train testified that their train ran into a drove of horses near the place of the accident and knocked one or more off from the track. It was so dark that they could not see very well how many horses were hit. By the evidence of the section boss there were no other horses injured on that night anywhere near that place. This accident the engineer reported on the same day as soon as he reached the end of his division, as he was required to do by the rules of the company, and the same was forwarded to and received by the proper officer of the road at Chicago.

This evidence leaves but little room to doubt that a part if not all of the horses were killed by this train and the engineer and conductor show themselves guilty of no negligence in the management of. their train.- It was so dark that, although keeping a good lookout, they could not see the horses iu time to avoid the accident.

It is hardly necessary to refer to the freight train spoken of by Abram Nicodemus, as it is clearly shown that he was mistaken.

The employes of the special train testify that they were keeping a close watch and saw no horses; but dark as it was, and running at the rate of speed they were, and which they had a perfect right to do, so far as appellee was concerned, it is not impossible that all four of the horses might have been killed by it just where they were found without imputing negligence to the servants of appellant.

The affirmative of the issue to show negligence was on appellee, while the great weight of the evidence was so clearly with appellant as to show that the jury have done manifest injustice, for which reason the judgment is reversed and the cause remanded.

JLveversed and remanded.