text:
    Andrew Brown, Defendant in Error, v. Kelly Coal Company, Plaintiff in Error.
    1. Instructions—when special accuracy required. Where the evidence hearing upon the issues involved in the case is radically conflicting the instructions should be drawn with special accuracy.
    2. Mines and miners—when instruction in action charging wilful violation erroneous. To recover under the Mines and Miners Act more than mere negligence is required to be shown. A wilful violation of the provisions of the act is essential, and instructons whch remove this distinction are erroneous and ground for reversal. Under this principle, held, that the following instruction was erroneous by reason of the insertion of the italicized words:
    “The court instructs the jury that before there can be a wilful failure by the defendant, as charged in the declaration in this case, the defendant, through some of its ofiicers, must have actually or by reasonable diligence could have hnown, of the condition in the plaintiff’s room and that it was loose and dangerous, or the condition in the roof of the room must have been so loose and dangerous that a failure to mark or report it unsafe and dangerous showed a wilful and wanton disregard of the safety of the plaintiff, and unless a preponderance of all the evidence in this case shows either one or the other of these two states of fact existing at the time of the examination or prior to that time then you should return a verdict finding the defendant not guilty as to the fourth count of the plaintiff’s declaration.”
    Action in case for personal injuries. Error to the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    O. M. Jones and Charles Troup, for plaintiff in error; Mastin & Sherlock, of counsel.
    Thomas A. Graham, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

Defendant in error instituted her suit against plaintiff in error to recover damages for personal injuries alleged to have been occasioned by the wilful failure of plaintiff in error to comply with certain provisions of the Mines and Miners Act. A trial by jury in the circuit court of Vermilion county resulted in a verdict and judgment against plaintiff in error for $2,975, and this writ of error is prosecuted to reverse such judgment. The case was submitted to the jury upon the fourth count of the declaration which alleges in substance that defendant in error was in the employ of plaintiff in error as a coal miner working in room four off of the eleventh west entry off of the seventh south entry in the mine of plaintiff in error; that there existed in the roof of said room at a place 25 feet from the face a large and loose rock which then and there constituted an unsafe and dangerous condition; that defendant in error not regarding the duty imposed upon it by law wilfully and knowingly permitted defendant in error to enter said mine for the purpose of working in said room without being under the direction of its mine manager, well knowing that said unsafe and dangerous condition existed in the roof of said room; that while defendant in error in the usual course of his employment was passing along and in said room to the face of the coal therein the said large and loose rock then and there fell and struck him, etc.

The evidence offered on behalf of defendant in error tends to show that the room in which defendant in error was injured had been extended a distance of about 60 feet from the room neck to the face of the coal; that upon the morning preceding the accident a large rock was observed in the roof of the room about 30 feet from the face of the coal, which rock was loose and in a dangerous condition, and had upon it a cross mark with chalk, which indicated that the rock had been examined by the mine examiner and found to be in an unsafe and dangerous condition; that on the following morning defendant in error was permitted to enter the mine without any directions from the mine manager, and proceeded to his room for the purpose of mining coal; that there were then no props under the rock; that while defendant in error was pushing his car toward the face of the coal the rock fell upon him causing the injuries complained of. The evidence offered upon behalf of plaintiff in error tends to show that the mine examiner had made a careful inspection of the roof of the room on the morning preceding the accident and also on the morning of the day on which the accident occurred ; that he sounded the roof of the room with a rod usually used for that purpose, but found no loose rock or other unsafe or dangerous condition but found the rock in question sound and safe; that he made no cross mark with chalk upon the rock but marked the figures “9-19-07” on the wall of the room to indicate that he had examined the room, and that lie had found all conditions therein to be safe; that a rock of the kind in question would not hang, or remain in the roof, without falling for twenty-four or thirty-six hours after it became loose. The evidence bearing upon the issues involved is radically conflicting, and when considered as it appears upon the printed page seems to preponderate in favor of plaintiff in error. The case was one requiring special accuracy in the instructions.

The twelfth instruction offered by plaintiff in error excluding the italicized words, was as follows:

“The court instructs the jury that before there can be a wilful failure by the defendant, as charged in the declaration in this case, the defendant, through some of its officers, must have actually or by reasonable diligence could have known} of the condition in the plaintiff’s room and that it was loose and dangerous, or the condition in the roof of the room must have been so loose and dangerous that a failure to mark or report it unsafe and dangerous showed a wilful and wanton disregard of the safety of the plaintiff, and unless a preponderance of all of the evidence in this case shows either one or the other of these two states of fact existing at the time of the examination or prior to that time then you should return a verdict finding the defendant not guilty as to the fourth count of the plaintiff’s declaration.”

The court gave this instruction as modified, the modification consisting of the italicized words “or by reasonable diligence could have known.” The instruction as thus modified by the court and given to the jury was erroneous, and could not have been otherwise than prejudicial to appellant.

In Kellyville Coal Co. v. Strine, 217 Ill. 516, certain language was used which was quoted with apparent approval in Mertens v. Southern Coal Co., 235 Ill. 540, as follows: “If the jury believed from the evidence, that appellee would not have been injured but for the negligence of appellant in failing to make the examination and in failing to indicate danger by a mark then they were justified in finding that appellee’s injuries were occasioned by the wilful negligence of the appellant within the meaning of the statute.”

In Peebles v. O’Gara Coal Co., 239 Ill. 370, it was said: “Manifestly, the operators of mines are liable, under this provision of the statute, not only when the dangerous conditions have been discovered by them, but also if, by the exercise of the care required by the provisions of the act, they could have discovered the existence of such conditions.”

In Aetitus v. Spring Valley Coal Co., 246 Ill. 32, it was said: “It has been repeatedly held by this court that it is the duty of the owner or operator of a mine to have his mine examined and if it is in a dangerous condition to have the dangerous places designated by the statutory mark, and if he fails in either particular, with knowledge of its dangerous condition, or with knowledge of facts from which he ought to know of its dangerous condition, he is liable to a person in the mine under his employ who is injured as a result of his wilful failure to obey the mandates of the statute.”

Whatever of confusion may have resulted among the bar and the courts from an apparent failure to discriminate between negligence and wilful act or failure, as applied to the provisions of the Mines and Miners Act, induced by a perhaps too liberal construction and application of the language employed in the cases cited, appears to have been adjusted and set at rest in Cook v. Big Muddy Mining Co., 249 Ill. 41, where it is held that the action given by the statute relating to mines and miners is for a wilful violation of its provisions and requires more than mere negligence; that in obedience to the Constitution the General Assembly had performed the duty of specifying certain things which must be done to secure safety in mines, and had fixed a liability for a wilful failure to do them, but it had not created or declared the liability of a mine operator for mere negligence unmixed with any intention, either proved or properly inferred from the facts, not to do the thing required. In the case last cited an instruction which embodied substantially the same language employed by the court in the case at bar in modifying the twelfth instruction tendered by plaintiff in error was held to be erroneous, in that it removed all distinctions between negligence and wilfulness, contrary to the plain language of the statute. The fourteenth instruction tendered by plaintiff in error and refused by the court states a correct rule of law and should have been given to the jury. The fifteenth instruction offered by plaintiff in error singles out a particular item of evidence and was not improperly refused.

For the error in the modification of the twelfth instruction given at the request of plaintiff in error the judgment must be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    Moses Crabtree et al., Appellants, v. Mrs. John Sizemore et al., Appellees.

      Chancery—when hill of complaint properly dismissed. If a material allegation in a bill in chancery is not sustained by the evdence, a dismissal thereof for want of equity is proper.

      Bill for injunction. Appeal from the Circuit Court of Edgar county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Shepherd & Trogdon, for appellants.
    F. C. Van Sellar, for appellees; H. Van Sellar, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

Appellees are the owners of the east half of the southeast quarter of section 1Y and the west half of the southwest quarter of section 16, and appellants are the owners of the east half of the southwest quarter and the west half of the west half of the southeast quarter of section 16. One Barkley owns the north half of the northwest quarter of section 21. All of the above described lands are in township 14 north range 12 west in Edgar county. A public highway running east and west divides' the lands owned by the appellants and the appellees from the land owned by Barkley, Barkley’s land being south of said highway. The natural drainage of surface water on appellants’ lands is to the south across the highway and into the east forty of Barkley’s land, where the water runs into an open ditch, and the natural drainage of the surface water on the east portion of appellees’ lands, adjoining the lands of appellants on the west, follows the same course. The natural drainage of surface water on the greater part of appellees’ lands is to the west. In 1894 the then owner of appellants’ lands and Barkley’s land, by mutual agreement, laid a ten inch tile drain from Barkley’s land north across the highway, and for some distance on appellants’ lands, and shortly thereafter the same parties laid two lines of four inch tile drain, one on the north and one on the south side of the highway east of said ten inch tile drain and connected the same with said ten inch tile drain. In 1908 appellees laid a five inch tile drain on the south side of the highway and connected the same with the ten inch tile drain on its west side. Said five inch tile drain was extended west by appellees on the south side of the highway to a point directly south of their lands and thence across the highway in a northwesterly direction to their lands. Appellees’ connection with the ten inch tile drain was made with the consent of Barkley, but without the consent of appellants. Shortly prior to the filing of this bill by appellants for an injunction the parties met at the office of one of the solicitors for appellants for the purpose of settling their differences and avoiding litigation, and it was then agreed that the T which connected the five inch tile drain laid by appellees with the ten inch tile drain should be removed and that said drains should not be reconnected, and further that the five inch title theretofore laid by appellees in the highway might remain there. In pursuance to such arrangement or agreement appellants removed the T and the two tile drains have not since been reconnected. A few days thereafter one of the appellants observed that appellees were extending their five inch title drain a distance of 30 or 10 rods in a northwesterly direction from the highway, and thereupon appellants filed their bill to restrain appellees from connecting the five inch tile drain with the ten inch tile drain. The bill alleges that appellees “have attempted to and have threatened and are now threatening to connect” their five inch tile drain with the ten inch tile drain of appellants, and that said ten inch tile drain is insufficient to carry the additional water that it will be required to carry if said connection is made; that if said connection is made it will greatly impair the value of appellants’ land and cause appellants irreparable injury. Appellees answered the bill denying all of its material allegations. The cause was heard by the chancellor in open court and a decree entered dismissing the bill for want of equity.

There is no scintilla of evidence in the record tending to show that since appellees’ five inch tile drain was disconnected from the ten inch tile drain in pursuance to the mutual arrangement or agreement between the parties, appellees had attempted, or threatened or at the time of the filing of the bill were threating to connect said five inch tile drain with the said ten inch tile drain, and as it was essential that the allegations of the bill in that regard should be sustained by appellants, the bill was properly dismissed, and the decree of the circuit court must be affirmed.

Affirmed.


text:
    Henry L. Davis, Appellee, v. Thornton W. Gwinn, Appellant.
    1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    2. Evidence—what not part of res gestee. Declarations of an employee not made while in the performance of duty, though in the presence of the principal, are not part of the res gestae and are not binding as admissions against such principal.

      3. Appeals and errors—when ineompeteney of evidence cannot be urged. Notwithstanding evidence may be incompetent its incompetency cannot be relied upon as ground for reversal if objection thereto was not made predicated upon the proper ground of incompetency and if the same was so far as the real ground of incompetency was concerned treated as properly received.
    4. Instructions—when failure to refer to proximate cause of injury not erroneous. An instruction given at the instance of the plaintiff in an action for personal injuries which does not purport to direct a verdict is not erroneous in not containing reference to the doctrine of proximate cause.
    5. Instructions—when refusal of court will not reverse. It is not error to refuse a correct instruction if its substance is substantially contained in other instructions given.
    Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    James W. & Edward C. Craig, for appellant; H. A. Heal and John H. Chadwiok, of counsel.
    A. J. Fryer and Lyman T. Yeargin, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages occasioned by the alleged negligence of a servant of appellant, whereby a horse belonging to appellee became sick and died. A trial by jury in the circuit court of Coles county resulted in a verdict and judgment against appellant for $160 to reverse which judgment he prosecutes this appeal.

The case was submitted to the jury upon the original second count and the first, second and third amended counts of the declaration. The original second count alleges the purchase by appellee from appellant of one bushel of corn to be delivered at a certain place on appellee’s premises where the horse of appellee then on said premises would not have access to said corn, and that appellant negligently delivered and placed said corn at a different place on said premises where the said horse had access to said corn and did thereby, without the fault of appellee, eat large quantities of said corn, whereby he became sick and died. The first amended count alleges that while the horse was in a certain lot or enclosure, a servant of appellant negligently delivered and placed a bushel of corn therein, so that the said horse had access thereto and did eat the same, etc. The second amended count alleges that appellee had a certain crib or bin used for the purpose of storing corn and feed for said horse, and that appellee purchased from appellant one bushel of corn to be placed and delivered in said crib or bin; that said servant of appellant neglected to deliver and place said corn in said crib or bin but negligently and contrary to the direction of appellee delivered and placed said corn in another and different place where said horse could and did have access thereto, etc. The third amended count is substantially like the first amended count. Each of said counts alleges knowledge on the part of appellant of the presence of appellee’s horse on the premises, and. that the corn was delivered at a place where said horse would have access thereto.

Shortly before 12 o’clock noon on Friday, January 1, 1910, appellee, a physician, ordered from appellant by telephone one bushel of corn to be delivered at appellee’s stable. The horse in question was then running in an enclosure adjoining the stable. At about one o’clock in the afternoon of the same day, when appellee went to the stable for the purpose of feeding his horse he found the horse in the lot eating corn from an open sack on the ground. The jury were fully warranted in finding that the corn then eaten by the horse produced his death, and that appellee took proper care of the horse and used the ordinary means to effect a cure of the ailment with which the horse was afflicted. The evidence bearing upon the other issues of fact in the case is sharply conflicting.

Appellee testified that when he ordered the corn he directed Dnnbar, the agent of appellant, to put the same in the southwest corner of the buggy shed, where he had put it on previous occasions; that Dunbar had delivered corn at his premises on seven or eight occasions prior to the time in question and that he had frequently cautioned him where to put the corn so that-the horse would not have access to it. Dunbar testified that he delivered the corn in a new burlap sack, which was securely tied, and placed it on the floor in the buggy shed between the-shafts of a standing buggy, and that he gained access to the buggy shed through a small hinged door which formed a part of a large sliding door; that after he put the com in the shed the horse ran to the shed and put his head and shoulders through the small door in an attempt to reach the corn; that he drove the horse back out of the shed and removed the corn to a place in the shed seven or eight feet back from the door, where the horse could not reach it without going into the shed, and then closed the door by shutting it tight; that appellee had told him to put it in the west part of the shed where the horse could not reach it. The further evidence in the case tends to show that the small door was not of sufficient size to permit the horse to enter the shed, and that if the corn had been placed in the shed a distance of seven or eight feet from the door the horse would have been unable to reach it; that the floor of the shed which was covered with small particles of hay and chaff which had sifted through from the loft above, did not show any indication that the horse had been in the shed, or that the sack of corn had been dragged upon the floor through the door. We. cannot escape the conclusion from a careful consideration of the competent evidence in the case that the jury were warranted in finding that Dunbar negligently ignored the direction by appellee with reference to placing the corn in the shed, and that he heedlessly or negligently placed it upon the ground, or just within the door of the shed. The delivery of the corn was made at about the noon hour and it is not improbable that in his haste to finish his one-half day’s work Dunbar was heedless and negligent in the respect indicated.

It is urged that the court improperly permitted the appellee and the witness Kincaid and Swinford to testify to a conversation between appellee and Dunbar, claimed to have been had in appellant’s grist-mill in the presence of -appellant, or while he was in and about there, shortly after the death of the horse, in substance as follows: That in reply to a question by appellee as to where he put the corn, Dunbar said he didn’t put the com where appellee had told him to, or where he had been putting it; that he knew appellee had frequently cautioned him about where to put the corn, but he put it between the shafts of the buggy far enough back' so that he thought the horse couldn’t get to it. The alleged declarations of Dunbar constituted no part of the res gestee and were wholly incompetent and improper and should have been excluded. Mich. Cent. R. R. Co. v. Gougar, 55 Ill. 503; Gould v. Aurora, Elgin & Chicago Ry. Co., 141 Ill. App. 344; Lowden v. Wilson, 233 Ill. 340. ¡No objection was interposed to the narration by the witness Swinford of such conversation, and the record discloses that when appellee and the witness Kincaid were interrogated with reference thereto the trial court considered the subject-matter of the inquiry to be competent if the conversation was had in the presence of appellant, or within his hearing, and that counsel for appellant adopted the view of the court by their motion to exclude the evidence relating to said conversation upon the ground that it did not appear that appellant heard the conversation; counsel then making the statement, “It is only competent on the theory that he (appellant) possibly heard it.” Furthermore, it appears that appellant procured an instruction to be given to the jury whereby they were informed in substance that the evidence as to said conversation was only-admitted upon the claim that it was in the presence and hearing of appellant, and unless they believed from the evidence that such conversation was heard by appellant they should disregard it altogether; that no statement made by Dunbar at a time subsequent to the delivery of the corn and not in the presence of appellant could bind appellant. Upon this record appellant is precluded from raising the question of the competency for any purpose of the evidence referred to.

The first instruction given at the instance of appellee does not purport to direct a verdict and the omission in said instruction of any reference to the doctrine of proximate cause could not have operated to the prejudice of appellant.

The fourth instruction tendered by appellant was modified by the court to conform with the allegation in the declaration that appellant failed to place the corn where directed. The latter phrase of the instruction as offered and given sufficiently submits to the jury the question whether or not a failure to place the com where directed was negligence.

The instructions tendered by appellant and refused by the court, in so far as they correctly stated the law applicable to the case were covered by other instructions given by the court, and were not improperly refused.

There is no substantial error in the record of which appellant can properly complain and the judgment will be affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. William Wilkerson, Plaintiff in Error.
    Judicial notice—of what not taken. Judicial notice is not taken of the municipal location of streets.
    Error to the County Court of Champaign county; the Hon. Thomas J. Roth, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    W. G. Spurgin, for plaintiff in error.

      F. A. Coggeshall, for defendant in error; Roger F. Little, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

Plaintiff in error was convicted of the offense of selling intoxicating liquor in the town of Champaign, the same being alleged to be anti-saloon territory, and was sentenced to pay a fine of $50.

The judgment must be reversed because of the absence of any proof in the record that the alleged sale of intoxicating liquor was made in the town of Champaign.

The insistence of counsel for defendant in error that the court will take judicial notice that the corner of Main and Walnut streets in the city of Champaign is within the territorial limits of the town of Champaign is not tenable. In Gunning v. The People, 189 Ill. 165, it was held that the court would not take judicial notice that certain streets mentioned in the record were in the city of Chicago.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Estella M. Boyden, Appellee, v. George L. Boyden, Appellant.
    1. Contempt—when objection to manner of proceeding cannot be complained of. Complaint cannot be made of the manner of determining the issues in a proceeding to commit for contempt for failure to pay alimony where the respondent made no objection to the course of procedure adopted and permitted the proceeding to be determined upon the affidavits of the respective parties.
    2. Contempt—burden to purge for failure to pay alimony. Failure to pay alimony as ordered is prima facie evidence of contempt and the burden is upon the respondent to show a valid reason for such failure.
    3. Contempt—when finding in proceeding for, not disturbed as against the evidence. The finding of the chancellor that the respondent was guilty of contempt in failing to pay alimony as ordered will not be set aside as against the evidence unless clearly and palpably against its weight.
    4. Contempt—when order of commitment proper. An order committing for contempt for failure to pay alimony properly fixes no definite time limit for imprisonment. The order of commitment is not designed as punishment but as a means of enforcing the decree of the court.
    5. Contempt—when refusal to allow solicitor’s fees and expense money in proceeding for, for failure to pay alimony, proper. In order properly to support a claim for solicitor’s fees and suit money in a contempt proceeding to compel the payment of alimony, evidence should be adduced.
    Divorce. Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Blinn & Covey, for appellant.
    King & Miller, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Logan county adjudging appellant to be in contempt for wilfully failing to pay to appellee certain alimony theretofore awarded to her, and committing appellant to the county jail until he should pay the sum of $119 found to be in arrears, or until he should he released by due process of law.

On October 14, 1908, upon a bill filed by appellee, a decree was entered dissolving the marriage relation, and as to alimony the decree provided with the consent of the parties that appellant should convey to appellee the homestead, upon which there was an encumbrance held by the Lincoln Savings and Building Association; that appellant should pay the interest and dues amounting to $39 per month to said association in liquidation of said encumbrance and that he should also pay to appellee $25 per month until said encumbrance was discharged.

At the January term, 1910, appellee filed her verified petition setting forth the terms of the decree and averring that appellant had failed to pay the monthly dues and installments of interest amounting to $117 to said association, and that he had failed and refused to pay the monthly payments of $25 due October 1, ISTovember 1 and December 1, 1909, and. asking that a rule be entered requiring appellant to show cause why an attachment should not issue against him and he be punished for contempt for his failure to comply with the decree. To this petition appellant filed his verified answer admitting the averments of the petition as to the provisions of the decree, but denying that he had failed to pay the monthly installments in liquidation of the encumbrance to the association, and averting that at the time said petition was filed he had fully paid such monthly installments to January 1, 1910, and that since the filing of said petition he had paid the installment for said month of January. The answer further avers that since the entry of the decree for divorce and alimony appellant was compelled to pay various hills for merchandise and necessaries furnished to appellee aggregating $481.21; that in the summer of 1909 he was receiving a salary of $75 a month and had no other income or property; that the monthly payments of $39 to the Building association and $25 to appellee left him only $11 a month upon which to live; that in July or August, 1909, he wrote appellee stating his financial condition and asking to be released from the monthly payment to her of $25, and that in response thereto appellee wrote to him that if he would pay her $25 per month up to November 1, 1909, she would release him from any further payment of said monthly installments ; that appellant accepted such release and for that reason had made no payments since said date, and that relying upon such release he had refrained from applying for a modification of the decree; that the letter of appellee to appellant releasing him from payment of said monthly installments of $25 was lost or had been taken by some person unknown to appellant. Appellee filed her affidavit wherein she denies she ever wrote to appellant as is averred in his answer and avers that she has repeatedly demanded of him that ho comply with the terms of the decree; that appellant is a competent and experienced undertaker and his earning capacity is ample to provide him with means for his support and to enable him to comply with the decree; that he is and has been for three years employed by a partnership in which his father, John T. Boyden, was co-partner until December 11, 1909, when he became the sole owner of the business and appellant received a salary of $100 a month; that if there has been a reduction in the salary of appellant such reduction was the result of a collusion or conspiracy between appellant and his father to enable appellant to defeat the payment of alimony to appellee; that she is informed and believes that in the summer or fall of, 1909 appellant purchased an automobile for which he paid over $1,000, and that within the last two months during the time he was in default appellant took a pleasure trip to Wisconsin for the purpose of hunting and fishing, the expenses of which trip amounted to $100. Appellee also then filed her affidavit averring that she had employed solicitors and had no money to pay said solicitors, and prayed for an order requiring appellant to pay her solicitors fees and expense money.

The affidavit of John T. Boyden, the father of appellant, avers that appellant was first employed at a salary of $100 per month; that afterwards affiant was compelled on account of his business to reduce expenses and that for more than one year the salary of appellant had been $75 a month and no more; that the automobile referred to in appellee’s affidavit was purchased by the co-partnership of which affiant was a member for the sole use of said co-partnership in its business, and that appellant had no interest in said automobile; that appellant had a vacation the preceding summer, and affiant’s recollection is that he loaned appellant the money to pay his expenses on said vacation, “if that is the trip referred to in appellee’s affidavit.”

The court ordered a writ of attachment to issue as prayed in the petition, and thereupon appellant entered his appearance and waived the issuance of the writ.

The motion of appellee for an allowance of solicitors’ fees and expense money was denied by the court.

In his answer to said writ, as ordered to be issued, appellant in addition to the matters stated in his prior affidavit avers that in the fall of 1907 he purchased a one-half interest in a livery stable in Mt. Pulaski, paying therefor $2,300; that said livery business was unprofitable and in April, 1909, he sold his interest therein for $1,000; that owing to his losses in said business and his attempt to comply with the decree for the payment of alimony he was then indebted in the sum of $2,350; that his present indebtedness, including the encumbrance held by the Building Association, amounts to $3,695.

Upon a consideration of the petition, answer and affidavits, the court held the answer insufficient and adjudged appellant to be in contempt and ordered his commitment therefor as heretofore stated.

It is first urged that the merits of the controversy should have been determined upon evidence taken in open court or upon a reference before a master in chancery and not upon the petition, answer and affidavits. Appellant voluntarily submitted the case to the court upon his answer and affidavits in support thereof, without, so far as the record discloses, entering any objection to the procedure adopted or making any suggestion or motion that other evidence should be heard and considered, or that appellee should be required to submit to a cross-examination upon the question of having released appellant from the payment of monthly installments of alimony subsequent to November 1, 1909. In this state of the record the objection to the manner of procedure, even if tenable, is not available to appellant for the first time in this court.

It is next urged that the finding and judgment of the court is contrary to the manifest weight of the evidence; that it clearly appears that the failure of appellant to comply with the provisions of the decree was not wilful, but was wholly due to his lack of financial ability; and that appellee voluntarily released him from the. payment of the monthly installments of $25 accruing subsequent to November 1, 1909.

It is uncontroverted that appellant failed to pay the said installments of alimony, and such failure is held to constitute prima facie evidence of contempt. Shafiner v. Shaffier, 212 Ill. 492. The burden was thus cast upon appellant to show either that he had been released by appellee from the payment of said installments of alimony or that his failure to pay the same was not wilful but was wholly due to his financial inability.

Upon the question of the alleged release by appellee, the fact that such release was given is asserted by appellant and denied by appellee. Appellant claims to have lost the alleged release. The fact, which is not denied by appellant, that appellee made repeated demands for the payment of the over due installments after the alleged release is claimed to have been given, to which demands appellant made no response either by claiming a release or by asserting his inability to pay, strongly tends to discredit the claim of appellant as to the. alleged release.

The amount of alimony to be paid by appellant to appellee was agreed upon between them, and appellant complied with that agreement for eleven months, during a portion of which time he was only receiving a salary of $75 per month. There are many inconsistencies appearing in the statements made by appellant and his father relative to their business relations and the alleged inability of appellant to comply with the decree. Appellant asserts that the greater part of his indebtedness was incurred in an -effort to comply with the decree, while it appears that at the time said indebtedness existed he had only paid $384 under the decree, and no explanation is attempted to be made of the purposes for which the greater part of his alleged indebtedness was incurred.

The statement by appellant that he was compelled to pay a considerable amount in liquidation of debts incurred by appellee before the decree was entered, of which debts he had no knowledge when the alimony was agreed upon, is not credible in view of the fact that such debts were incurred almost wholly for ordinary household expenses covering a considerable period of time prior to the entry of the decree. The claim of John T. Boyden, the father of appellant, that he reduced the salary of appellant from $100 per month to $75 per month, because the business of the firm had decreased, is inconsistent with the fact that the business justified an additional .expenditure of $1,000 for an automobile and an allowance by him to appellant of $100 with which to make a pleasure trip to Wisconsin, and the further fact that during tho time in question the said John T. Boydcn acquired the entire interest in the business. We cannot escape the conclusion that the charge by appellee that the reduction in the salary of appellant was collusively made for the purpose of disabling him from complying with the decree, is not without foundation.

We should not bo justified in reversing the judgment as being against the weight of the evidence, unless it is clearly and palpably so, and this we are unable to say.

It is finally insisted that the order of commitment is erroneous because it fails to fix a definite time limit for the imprisonment of appellant. The order of commitment is not intended to serve as a punishment for the contempt, but to compel appellant, to pay the amount of alimony found to be in arrears. To effect this purpose the order is in proper form. Czarra v. Czarra, 124 Ill. App. 622; Barclay v. Barclay, 83 Ill. App. 366, affirmed in 184 Ill. 471.

Appellee assigns cross-error upon the action of the court in refusing to order appellant to pay solicitors’ fees and expense money in this proceeding. Appellee neither introduced nor tendered any proof in support of her claim for such allowance, and in the absence of such proof, or a tender thereof, the motion was not improperly denied by the court.

There is no reversible error in the record and the judgment is affirmed.

'Affirmed.


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    A. P. Nave, Appellee, v. Henry Gross, Appellant.
    1. Instructions—must not give undue prominence to particular evidence. Instructions are properly refused which single out and give prominence to particular items of evidence.
    2. Instructions—when refusal of correct will not reverse. It is not error to refuse a correct instruction the substance of which is substantially contained in other instructions given.
    3. Instructions—when erroneous will not reverse. An erroneous instruction will not reverse where the Appellate Court is satisfied upon a consideration of the entire record that the jury were not misled'thereby-
    Appeal from the Circuit Court of Piatt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    F. M. Shonkwiler and W. G. Cloyd, for appellant.
    C. R. Milford, M. R. Davidson and J. L. Hicks, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for the alleged breach of a written warranty, as follows:

“Atwood, Ill., March 26th, 1906.
Having sold my horse Brilliant to A. P. Have, I hereby warrant the horse an average foal getter under ordinary good treatment.
Henry Gross.”

A trial by jury resulted in a verdict and judgment against appellant for $450. A former judgment against appellant was reversed by this court and the cause remanded for errors in instructions. 146 Ill. App. 104. The main facts out of which the controversy arises are sufficiently disclosed in the former opinion.

The evidence is practically uncontroverted that the horse was not an average foal getter when he was put into service shortly after his purchase by appellee, and the main controversy upon the trial related to the manner in which the horse had been cared for by appellee, as affecting his efficiency as a breeder.

The evidence tends to show that immediately after the horse was purchased by appellee he was shipped from Atwood, Illinois, to Attica, Indiana, a distance of 125 miles in a box car; that he was not tied but was turned loose in one-half of the car and provided with bedding and hay; that in May following he was shipped in like manner from Attica to Farina, Illinois, a distance of about 200 miles; that the manner in which he was shipped was that usually and customarily adopted hy shippers of like horses; that in each instance when he arrived at his destination he appeared to be sound and in good condition; that from the time he was sold to appellee until the commencement of this suit he was well cared for by experienced horsemen. The claim of appellant that the horse was injured in shipment is based almost wholly upon conjecture and finds no substantial support in the evidence. The evidence in support of appellee’s case was strengthened in some particulars upon the last trial.

The objections urged to the rulings of the court upon the evidence are not of sufficient significance to merit discussion.

The first, second and third instructions offered by appellant and refused by the court were properly refused because they single out and give special prominence to particular items of evidence, and the fourth instruction tendered by appellant and refused by the court was fully covered by other instructions given at his instance.

The third and fourth instructions given at the instance of appellee are substantially accurate. statements of law applicable to the case and were properly given to the jury. The contention of appellant that these instructions are erroneous because they direct attention to the fact that the horse was purchased for breeding purposes is wholly without merit. The facts and circumstances in evidence show conclusively that the horse was purchased solely for use as a breeder.

The first sentence in the second instruction given at the instance of appellee is subject to criticism, but the error is not such as required a reversal of the judgment. We are satisfied upon a consideration of the entire record that the jury were not misled by the instruction as given. The further criticism of the instruction finds no support in the record as abstracted.

There is ho prejudicial error in the record and the judgment is affirmed,

Affirmed.


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    Chris Wetzel, Appellee, v. G. E. Colson, Appellant.

      Deceit—what essential to recover in action for. In an action for fraud and deceit it is necessary to .aver and prove scienter. Averment and proof that the defendant could by the exercise of reasonable care have known, is not sufficient.
    Appeal from the City Court of Mattoon; the Hon. George D. Wilson, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed with finding of fact.
    Opinion filed May 26, 1911.
    John McNutt, for appellant; A. L. Chezem, of counsel.
    Bryan H. Tivnen, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

The declaration in this case contains two counts designated in the record as the first count and the amended additional count. The first count alleges in substance that the plaintiff, on, etc., bargained with the defendant, at his request, to buy of him a certain horse at a certain price, to wit, the sum of $105; that the defendant for the purpose of inducing the plaintiff to purchase said horse at said price, then and there fraudulently and falsely warranted the said horse to be sound, whereas in truth and in fact the said horse ivas at the time of said warranty and sale thereof, unsound, and sick with a dangerous and contagious and infectious disease among horses known as glanders, which said facts were well known to the defendant at the time of the warranty by him of said horse as aforesaid; that relying upon the warranty of the defendant as aforesaid the plaintiff then and there purchased of the defendant the said horse and then and there gave to the said defendant his promissory note for the said sum of $105, which was then and there accepted by the defendant; that the defendant by means of the premises, on the day aforesaid, there falsely and fraudulently deceived the plaintiff on the sale of the said horse as aforesaid, and thereby the said horse afterward, to wit, on the day aforesaid, not only became of no use or value to the plaintiff, but also then and there copiumnicated. the said highly dangerous and infectious disease known as glanders to other and different horses of the plaintiff and thereby they became valueless; and thereby also the plaintiff was then and there put to great expense in and about the feeding and taking care of and for the medical attention and medicine and for the necessary killing of the first mentioned horse in order to avoid further communication of the said disease of glanders, and for the disinfection of the premises of the plaintiff where said horse was kept, and for the destruction of property of the plaintiff necessarily consumed as having come in contact with said first horse and the said disease, which property was necessarily destroyed by the plaintiff for the purpose of preventing further communication of the disease; and for other further injuries and losses thereby sustained by it; to the damage of the plaintiff, etc.

The amended additional count is in substance like the first .count, except that in addition to alleging as a ground of recovery that the defendant then and there well knew said horse was affected with glanders, it alleges that the defendant by the exercise of ordinary care on his part could have known of the same. To this declaration the defendant pleaded the general issue and upon a trial of the cause by a jury there was a verdict and judgment against the defendant for $478, to reverse which judgment this appeal is prosecuted.

On April 2, 1909, the plaintiff, a farmer residing near the city of Mattoon, purchased a mare from the defendant, who then conducted a large sales stables in said city and who had been engaged in the business of buying and selling horses and mules for twenty-five or thirty years.

The evidence bearing upon the issues here properly involved, considered most favorably for the plaintiff is substantially as follows: The plaintiff testified that when he was negotiating for the purchase of the mare he asked the defendant if she was sound and the defendant replied that she was absolutely sound except a little wire mark on her left fore leg; that he told the defendant that the mare did not look sound to him biff looked as if she had the distemper and the defendant said she was all right, that he bought her down south of a neighbor near his place, and sold her to be sound and a good worker, that she did not then have the distemper but had had it and had gotten over it; that upon that day the mare was in poor condition and ran a little at the nose and on the following day her legs were swollen; that a week later she was poor and running down, had a thick head and pimples all over her body which were breaking open, and that she had swelling in the jaws and underneath from her ears down to her throat latch; that in the latter part of May or the first of June following, she was running at the nose and bleeding and was just able to walk and he called in Dr. Hayward, a veterinary surgeon to examine her; that he then had nine other horses on his place; that subsequently Dr. Mills, another veterinary surgeon, was called in consultation to examine the mare and by his direction plaintiff’s premises were quarantined and some of the horses kept separate and apart from the mare and two other horses who had disclosed similar symptoms; that the two veterinary surgeons finally diagnosed the disease with which the mare was affected as being glanders and she was killed on June 17; that at the time of the trial five horses belonging to him and who had been brought in contact with the mare were so sick as to be worthless;'that he had given the defendant his note for $105 in payment for the mare.

H. A. Hockey, a witness called by the plaintiff, testified that he was present when the mare was purchased; that she was led out of the barn and trotted a short distance under the whip; that when she walked out of the barn she looked drowsy and stupid, did not walk upright, was thin and watering at her nose; that he mentioned that fact to the plaintiff, who said he did not think she looked right and was not in good condition; that the defendant said she was all right, that she might have had a cold or touch of distemper, but was all right then and that she was sound except the wire mark on her front foot.

Henry Furste, a witness for the plaintiff, who was also present when the mare was purchased, testified that the defendant got after her with a whip and drove her around about two minutes; that the plaintiff said she was a little thin and the defendant said she had not had enough to eat and was starved, that all' she wanted was something to eat and hard work; that both plaintiff and the witness said she didn’t look just right and the defendant said: “She ain’t got the distemper now, she had it hut is over it; I insure her to he absolutely sound except wire cut.”

Dr. Hayward testified that he first saw the mare on June 5, 1909, on the plaintiff’s premises, and described in detail the various symptoms he then observed; that he directed the plaintiff to keep her apart from the other horses because she was infected with a highly contagious disease; that on June 10 he concluded that the marc was infected with glanders and reported the case to the State; that in his opinion the mare had glanders when she was sold by the defendant to the plaintiff. Dr. Mills testified that he examined the mare on June 14, and diagnosed the disease with which she was affected as glanders in malignant form, and that in his opinion the mare had glanders when she was sold to the plaintiff. Both of these witnesses called by the plaintiff as experts, testified that glanders Was an unusual disease among horses and was very difficult of diagnosis in its early stages; that it could only be detected with any degree of certainty in its early stages by the use of the Malline test which could only be properly applied by a veterinary surgeon; that the symptoms of several of the diseases with which horses are commonly affected were almost identical with symptoms of glanders.

O. E. Hewsby testified that he saw the mare in defendant’s barn before the plaintiff purchased her and that she looked out of condition, rather thin and stood with head down; that her lips, nostrils and hind legs were swollen and her head looked thick along the side; that he thought she had symptoms of glanders.

D. S. Hutchinson, who saw the mare in defendant’s barn before she was sold by the defendant, testified that she was thin in flesh, had a little discharge at the nose, and that he thought she had a cold or shipping fever.

In actions for fraud and deceit it is necessary to aver and prove scienter. Cantwell v. Harding, 249 Ill. 354. The averment in the declaration that the defendant at the time he sold the mare to the plaintiff could by the exercise of reasonable care have known that she was affected with the infectious and contagious disease of glanders was not sufficient to support a recovery, and it was essential that plaintiff proved the averment in his declaration that the defendant knew the mare was so affected. A consideration of the evidence, taken most strongly for the plaintiff, clearly fails to establish the averment of scienter. The fact that the mare was affected with glanders was not ascertained or discovered for more than two months after she was sold, and then only by experts in the diseases of horses by the application of a test available only to such experts. True, some of the symptoms which were present in the mare when she was sold were common to a horse in both the chronic and acute stages of the disease known as glanders, but such symptoms were identical with the symptoms incident to many other diseases not of a serious character to which horses were subject. While the defendant may be liable in an action to recover damages for breach of warranty that the mare was sound, the evidence for the plaintiff considered alone is wholly insufficient to warrant a recovery under either count of the declaration.

Plaintiff introduced no evidence tending to show that defendant had any knowledge whatever of the symptoms of the disease known as glanders or of the disease itself. It is apparent from the- entire record that the testimony of some of the witnesses to the effect that they thought the mare had glanders when she was sold was mere conjecture predicated upon the fact that the disease was subsequently diagnosed as glanders.

It is almost incredible that the defendant should have kept the mare in the same stable with his other horses, if, knowing the highly infectious or contagious character of the disease known as glanders, he knew that the mare was affected with said disease. The very natural motive of self interest excludes the probability of such conduct on his part.

The record of the trial in the.court below is, in the Ianguage of a late eminent practitioner at the bar of this court, “robust with error,” but in the view "heretofore expressed by us it is unnecessary to consider and determine the almost numberless errors assigned.

The judgment of the county court will be reversed with a finding of fact to be incorporated in the judgment of this court.

Reversed with finding of fact.

Finding of Fact: We find as an ultimate fact that at the time the defendant sold the mare in question to the plaintiff he did not know said mare was affected with glanders.


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    Elizabeth Green et al., Appellees, v. John C. Green, Administrator, Appellant.

      Evidence—when writing competent as admission against interest. In an action to compel an administrator to account for certain moneys alleged to have been collected for his intestate, a written declaration of such intestate as to his assets is competent as against privies in blood. The fact that the statement in question was made according to the best recollection of the intestate did not affect its competency but only the weight to be given it.
    Objections to administrator’s report. Appeal from the Circuit Court of Douglas county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Charles G. Eckhart and John H. Chadwick, for appellant.
    Le Forgee, Vail & Miller and J. M. Newman, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

On April 29, 1909, the appellant filed in the county court of Douglas county his fínál report as administrator of the estate of Isaqc Green, deceased? to the approval of which report appellees, being the heirs at law of said deceased, filed their objections, wherein they set forth that on or about March, 1908, one Joseph Snyder borrowed $1000 of the money of the deceased, which amount appellant since the death of his intestate had collected from the said Snyder, and that the said deceased in his lifetime had loaned to one Mrs. W. 0, Cole the sum of $375 and taken her notes therefor, which notes previous to his death the deceased delivered to appellant for collection and that appellant had collected the same since the death of his intestate and had failed to include said notes or the proceeds thereof in the inventory filed by him and had failed and refused to account for the same as administrator of his intestate. Upon a hearing had in the county court said objections were overruled and the report was approved as filed. On the appeal by appellees to the circuit court a hearing was had and said objections were there sustained and appellant was ordered to file an additional inventory of said notes in the county court and to account to said court for the proceeds thereof.

The evidence discloses that Isaac Green at the time of his death on August 30,1907, was about eighty years of age; that he was a bachelor and had always lived with his brother, the appellant, as a member of his family; that the two Gole notes aggregating $286.60 were made in 1901 and 1903, and were endorsed by Isaac Green and delivered by him to appellant in 1906, and paid to appellant in December, 1907; that in 1906 Joseph Snyder applied to appellant for a loan of $1000, which amount appellant was then unable to furnish; that appellant informed Snyder he (appellant) could procure the amount, and he thereafter procured the same from Isaac Green and loaned the same to Snyder taking his note therefor payable to appellant; that said loan to Snyder was subsequently renewed by another or other notes, and was paid to appellant by Snyder in May, 1909; that appellant and his brother Isaac had frequent business transactions relating to the trading and transfer of lands; that on December 7, 1906, Isaac Green gave his written receipt to appellant for $3975, therein stated as “being in full of all debts, notes or accounts I hold against him np to above date.” Upon the trial appellant sought to introduce in evidence the first four pages of a book which was found among the effects of Isaac Green whereon in his own handwriting and bearing his own signature appeared the following:

“This Thursday, the 11th day of July, 1907.
This is to the best of my recollection a true statement of my present holdings of land and notes, or claims and accounts : I have 176 acres of land in Clay county, Illinois. I have leased out 56 acres to parties. I have 80 acres rented out to Berne Abel on the Little Wabash river, and 40 acres where the said Ahel now lives. The lease contract is in the office of Harvey McColm. I have a note on Eliza White, calling for $200 at seven per cent interest, with mortgage on 40 acres of land, on record in Louisville, Ill. I also have notes for $200 on James Douty at 7 per cent interest with mortgage on 20 acres I also have three hundred and fifty dollars on Hilliard town property at 7 per cent interest. I have eight hundred dollars on loan on Mrs. Pinkey Brown at 7 per cent interest. I have some claims against the said Jesse Hubbard of in all $100, besides the notes for rent of land, a few other claims; this claim over and above the amounts I have paid for my board, etc. for all claims prior to this present date; so if he pleases to be punctual to pay off the mortgage, I will be lenient on the little other claims. I also have a check and some little money, so I want to save this little that I have for some of my nieces and nephews. I want Billy to have one. I contemplate giving W. L. Green $2,000. I hope that those that are honestly indebted to me will, if they survive me in life, I hope they will report honestly and give no one unnecessary trouble; so let it be distinctly understood that there is nothing of any value among all the unnecessary accumulation of papers and documents in my possession.
Given under my hand this day, July 11, 1907.
Isaac Green.”

Upon the objection of appellees the writing was excluded by the court upon the ground that it did not purport to be a full statement, being predicated merely upon the best recollection of the deceased. The relation of privity in blood existed between the deceased as ancestor and the appellees as heirs, and the written statement by the deceased against his interest was clearly admissible against the appellees. Wigmore on Evidence, Vol. 2, secs. 1080, 1081; Gibblehouse v. Strong, 3 Bawle, 436; Note to Paige v. Cagwin, 42 Am. Dec. 80. The fact that the written statement purports to have been made by the deceased according to his best recollection did not render the statement incompetent to be considered as evidence, but merely affected the question of the weight to be given to it. The statement was written by the deceased about six weeks prior to his death, and appears upon its face to have been made in contemplation of his impending death. It purports to be a complete inventory of his real and personal estate and evidences a clear apprehension and accurate recollection in detail of the various items of property and claims then constituting his assets. In view of the character of the statement it is not appreciably discredited by the fact that it only purports to have been made by the deceased according to his best recollection. If at the time the deceased made said statement he was the owner of the Snyder note for $1000 and of the Cole notes aggregating nearly $300, it is highly improbable that he would have omitted any reference thereto in said statement. Several witnesses called on behalf of appellant testified that shortly prior to his deifth the deceased had said to them, in substance, that he and the appellant had had a settlement; that appellant did not owe him anything, but he thought he owed appellant a little. John Gox, a son of one of the appellees, was called as a witness on their behalf and testified that appellant stated to him in December, 1908, that there would be about $350 due to the heirs in March following, and that the Cole notes were due or had been collected. Appellees rely upon the'testimony of this witness as tending to show an admission by appellant that the Cole notes belonged to the estate, but in view of the fact that the personal estate of the deceased, for distribution, excluding the Cole notes from consideration, then amounted to about $350 the testimony of the witness does not bear the construction placed upon it by appellees. The testimony of Mary Stevens, one of the appellees, as the same appears in the record, tends to show that appellant claimed to own the Cole notes rather than that appellant admitted that said notes belonged to the estate of Isaac Green.

For the error in excluding the written statement made by Isaac Green, and because the finding of the court is not supported by the eivdence the order and judgment must be reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Philbrick took no part.


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    The People of the State of Illinois, for use of County of DeWitt, Appellee, v. Joseph T. Maddox, Appellant.
    1. Evidence—when testimony incompetent after use of memorandum. If a witness’ memory is not refreshed by the use of a memorandum so that he then has a present recollection and if a witness has no recollection independent of the memorandum, it is improper over objection to permit him to testify with reference to the contents of such memorandum.
    2. Bonds—when lack of identity in sureties does not preclude joinder of several bonds in single action. Suit may be brought upon several separate and distinct bonds in the same action notwithstanding tha sureties thereon are not identical if the suit is instituted against the principal in all such bonds alone.
    3. Drainage—liability of treasurer for failure to aeeownt. Where a county treasurer is ex officio treasurer of a drainage district his liability to account is to the county and upon his collector’s bond or bonds. If, however, the moneys in question are received by him as treasurer by appointment his liability is to the district rather than to the county.
    4. Fees and salaries—section 51 construed. The duty imposed upon a county treasurer by section 51 of the Fees and Salaries Act to make semi-annual reports of all the fees and emoluments of his office of every name and character is not dependent upon the adoption by the county board of a resolution fixing the compensation of such treasurer but his duty to make such reports is imperative notwithstanding a failure to fix his compensation.
    Action in debt. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Rehearing denied June 20, 1911.
    John Fuller and Herrick & Herrick, for appellant.
    Lemon & Lemon and Edward J. Sweeney, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an action in debt against appellant upon his official bonds as county treasurer and ex officio county collector of the county of DeWitt, to recover the sum of $1776.54, alleged to have been received and retained by him as commissions upon taxes and assessments levied by the commissioners of “The Friends Creek Special Drainage District in the counties of DeWitt and Piatt and State of Illinois,” and the commissioners of the “Clintonia Special Drainage District in the towns of Barnett, Clintonia and Wapella, county of DeWitt, State of Illinois,” and collected by him. The trial was had upon the four additional counts of the declaration and the amendments thereto which assigned breaches upon four several bonds for the sum of $200,000 each, of appellant as county collector of the taxes for the years 1902, 1903, 1904 and 1905, and which alleged the collection by appellant of $88,827.59 for drainage taxes and assessments levied by commissioners of the special drainage districts heretofore named, and that appellant had received and retained for his own use as and for his fees and commissions $1776.54, being two per cent of the amount so collected by him, and had neglected and refused to pay over said amount so collected to the county treasurer of said county, or to his successor in office, and had failed and refused to account for the same to said county. To these several counts of the declaration appellant filed several pleas of which, upon demurrers interposed, the only plea remaining in the record was the plea of non, damnificatus. At the close of all the evidence the court refused to give a peremptory instruction requested by appellant, but instructed the jury at the instance of appellee to find the issues for the plaintiff and to assess plaintiff’s damages at the sum of $800,000 in debt, and in the sum of $1998.60 damages. Upon such verdict so returned by the jury the court entered judgment against appellant and this appeal followed.

The proceedings for the organization of the two special drainage districts mentioned in the declaration were commenced and said districts were organized in DeWitt county. Under and by virtue of the provisions of section 7l of the statute relating to Special Drainage Districts appellant as county treasurer of DeWitt county became ex officio collector and treasurer of the Clintonia Special Drainage District in the towns of Barnett, Clintonia and Wapella, and in pursuance of the provisions of the same section the commissioners of the Friends Creek Special Drainage District in the counties of DeWitt and Piatt appointed appellant as collector and treasurer of said district. Appellant assumed the duties of the office of county treasurer and ex officio county collector of DeWitt county in December, 1902, and continued in the performance of such duties until December, 1906. Prior to the election of appellant as county treasurer of DeWitt county in 1902, the last action of the county board of said county fixing the salary of the county treasurer was had at its meeting September, 1898, when a resolution was adopted fixing the salary of the county treasurer for the next four years, and as then fixed at $1500 per year, and fixing the salary of the deputy county treasurer at $400 per year. The reports filed by appellant with the county board for the years 1903, 1904 and 1905 show that appellant credited himself with the sum of $1500 a year as his salary and with the payment to the deputy county treasurer of $400 as and for his salary, but in neither of said reports does it appear that appellant charged himself with commissions or fees upon any taxes and assessments collected for drainage purposes. Appellant’s report for the year ending FTovember 30, 1906, could not be found after diligent search therefor and does not appear in the record.

It is urged that there is no competent evidence that appellant collected taxes and assessments as treasurer and collector of said drainage districts, or that he received and retained any money as commissions or fees for collecting such taxes and assessments, and further, that it does not appear but that appellant accounted to the county board for commissions and fees alleged to have been received and retained by him for the collection of such taxes and assessments.

Aside from the reports of appellant to the county board above referred to, the testimony of the witness William Price, who acted as deputy county treasurer and as clerk for appellant during his term of office, is relied upon to establish the collection by appellant of such drainage taxes and assessments, the receipt and retention by him as and for his commissions and fees of two per cent upon the amount collected, and his failure to account for the same to the county board. The testimony of Price discloses that appellant kept no public record as county treasurer and county collector of the amount of taxes and assessments collected by him for the drainage districts mentioned in the declaration, or of the amount of commissions and fees received and retained by him therefor, being two per cent of the taxes and assessments so collected, but that the same appeared in certain reports made by appellant to the commissioners of said drainage districts, which reports were in existence. The reports referred to by the witness were not offered in evidence upon the trial, and the absence of such reports was not accounted for. The same witness further testified that he had no independent recollection whatever of the several amounts collected by appellant for drainage taxes and assessments or of the amount of commissions and fees received and retained by appellant therefor; that he had made a memorandum of the said amounts as the same appeared upon said reports, which memorandum was true and correct, but that such memorandum did not serve to refresh his recollection as to the several amounts in controversy and that he relied wholly upon said memorandum for a- statement of the said amounts. The record does not disclose when the several reports referred to by the witness were made by appellant, or when said memorandum was made, or the circumstances under which the same was made. Over the objection of appellant the witness was permitted to state the several amounts in controversy by reference- to the memorandum alone. The evidence was incompetent and should have been excluded. In Diamond Glue Co. v. Wietzychowski, 227 Ill. 338, it was held that a writing could properly be used for the purpose of refreshing the memory of a witness if he was able after inspecting the writing to testify to the facts from present recollection; that another condition under which a writing may be used is where the witness after inspecting a writing, still has no independent recollection of the facts stated therein, but is able to state that he correctly reduced them to writing at the time of the occurrence, or within such a time afterwards that he had a perfect recollection of them.

The contention of appellant that suit upon the several bonds could not properly be brought in the same action because the same persons were not sureties upon all the bonds is not tenable. This is not an action against the sureties on the bonds but against the principal alone, and if appellee is content with a personal judgment against appellant the latter cannot complain. Obviously under such circumstances the rule announced by appellant that a judgment against a principal upon his bond is conclusive upon his sureties would be inapplicable.

Section 15 b (Rev. Stat. 1909, '888) which provides for the appointment by the drainage commissioners of a treasurer who shall receive all funds of the drainage district relates to drainage districts lying wholly within one township, and has no reference to the appointment of a treasurer by the commissioners of special drainage districts organized under other provisions of the Drainage Act, and of which such special drainage district under the provisions of section 71 (Rev. Stat. 1909, 908) the county treasurer of the county in which the proceedings for the organization of such district are commenced and such district is organized, is made ex officio treasurer, and where such district lies in two or more counties the county treasurer of either county becomes ex officio treasurer of such district by appointment of the commissioners. Appellant assumed the duties of the office of county treasurer and ex officio county collector of the county of DeWitt cum onere, and any commissions and fees properly received by him for the collection of taxes and assessments as ex officio collector and treasurer of the special drainage districts mentioned in the declaration became the property of DeWitt county for which he was bound to account to the county board. Walker v. The People, 95 Ill. App. 637; The People v. McCord, 143 Ill. App. 28. For the failure of appellant to account to the county board for any such commissions and fees so received by him he was liable upon his collector’s bond or bonds. Walker v. The People, supra.

Section 73 .of the Drainage Act (Rev. Stat. 1909, 909) limits the amount to be received by the treasurer of a special drainage district from any one district to $500 in any one year. If it should appear that appellant had received for his service in any one year as treasurer of either of the districts here involved a sum in excess of $500 such excess would have been paid to and received by appellant without authority of law and he would not be liable in an action on his bond to account for such excess to the county but his liability therefor would be to the drainage districts. People v. McCord, supra.

It is finally urged that because the board of supervisors, so far as the record discloses, failed to fix the compensation of appellant as county treasurer and ex officio county collector, the county cannot be heard to say that appellant has improperly retained the fees collected through the medium of his office; that before the county is entitled to such fees it must show that it fixed the salary of appellant, the payment of such salary out of the earnings of his office, and that the amount claimed is due to the county after appellant had been fully paid the amount of his compensation. The duty imposed upon appellant by section 51 of the Act relating to Fees and Salaries to make semi-annual reports of all the fees and emoluments of his office of every name and character, was not dependent upon the adoption by the county board of a resolution fixing appellant’s compensation, but Ms duty to make such reports was imperative notwithstanding a failure to fix his compensation. In any view of the case no advantage can accrue to appellant by reason of the failure of the county board to fix his compensation in the manner prescribed by statute. In Purcell v. Parks, 82 Ill. 346, it was held that where the county board fails to fix the compensation of the county clerk he is not entitled to appropriate any of the fees of his office to his own use until the amount of his compensation is fixed; that until fixed by the county board he has no compensation to be either increased or diminished. This case is cited with approval in People v. Fuller, 238 Ill. 116.

Because the amount of any taxes and assessments collected by appellant for the drainage districts mentioned in the declaration, and the amount of any commissions or fees received and retained by appellant therefor is not shown by any competent evidence in the record, the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Turner Taylor, Appellant, v. Carrie Taylor, Appellee.
    Appeals and errors—when interlocutory order will not he reviewed. In an appeal from an order granting solicitor’s fees to the complainant in a divorce proceeding an order overruling exceptions to an answer, being interlocutory merely, cannot be reviewed.
    Divorce. Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Rehearing denied June 16, 1911.
    Jesse E. Hoffman, De Mange, Gillespie & De Mange and Welty, Sterling & Whitmore, for appellant.
    Owen & Owen and Barry & Morrissey, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

On January 20, 1910, appellant filed his bill in equity against appellee for divorce upon the ground of desertion, Appellee answered the bill denying its material allegations and also filed certain affidavits in support of her motion for an order on appellant to pay her such amount as should be necessary to enable her to defend the suit and for solicitors’ fees and costs and expenses. Appellant filed his exceptions to appellee’s answer which exceptions were overruled by the chancellor and an order entered requiring appellant to pay to appellee $100 for her reasonable and necessary solicitor’s fees. This appeal is prosecuted to reverse such order.

Appellant argues at length against the propriety of the decree overruling his exceptions to appellee’s answer, but such decree was interlocutory only and no appeal lies therefrom. The answer of appellee as it now stands presents a complete defense to the cause of action alleged in appellant’s bill, and as it is not urged that the order for the payment of solicitor’s fees is not justified, save for the reason that, the exceptions to the answer should have been sustained, it necessarily follows that such order should be affirmed. Accordingly the order is affirmed.

Affirmed.


text:
    D. P. Pennywitt, Appellant, v. Albert Lindsey, Appellee.

      Sales—when fraudulent per se. An absolute conveyance of personal property, where there is no delivery to the vendee and the possession of the property is permitted to remain in the vendor, is fraudulent per se as to creditors and bona fide purchasers of the vendor and is not open to explanation.
    Action commenced before justice of the peace. Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    D. P. Pennywitt, appellant, pro se.

    Flack & Lawyer, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a proceeding originally instituted by appellant against appellee before a justice of the peace to try the right to certain property consisting of a team of horses, wagon and harness, claimed by appellant under a bill of sale therefor from one Connelly, and which had been levied upon as the property of said Connelly by appellee, his judgment creditor. At the close of the evidence for appellant upon the trial in the circuit court, a peremptory instruction was given to the jury to find the issues for appellee and that the property in controversy was not the property of appellant. Upon such a verdict of the jury the court entered judgment against appellant in bar of his action and for costs.

The evidence discloses that prior to ¡November 2, 1907, Connelly, being indebted to appellant, gave the latter a chattel mortgage on the property in question to secure such debt; that upon the maturity of said debt on that day, Connelly being unable to pay the same, executed to appellant an absolute bill of sale of said property, which bill of sale contained no provision authorizing Connelly to retain possession of the property; that the property was never delivered by Connelly to appellant prior to the levy of the execution but continued to remain in the possession and control of Connelly until October 1909 when appellee’s execution was levied; that appellee had no notice in fact that appellant claimed to own said property when the execution was issued upon the judgment. Upon this state of facts the court properly gave to the jury the peremptory instruction at the close of appellant’s evidence.

The rulings of the court upon the evidence were more favorable to appellant than he was entitled to. An absolute conveyance of personal property, where there is no delivery to the vendee and the possession of the property is permitted to remain in the vendor, is fraudulent per se as to creditors and bona fide purchasers of the vendor and is not open to explanation. Reed v. Eames, 19 Ill. 594; Ticknor v. McClelland, 84 Ill. 471; Huschle v. Morris, 131 Ill. 587; Hewett v, Griswold, 43 Ill. App. 43; Howell v. Fiske, 52 Ill. App. 310; Schultz v. Reader, 69 Ill. App. 295; Bass v. Pease, 19 Ill. App. 308.

There is no error in the record and the judgment is affirmed.

Affirmed.


text:
    Ida L. Casper, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Res judicata—effect of opinion of Appellate Court. The opinion of the Appellate Court rendered upon one hearing of a cause is binding upon a subsequent hearing and likewise upon tlio trial court.
    2. Appellate courts—section 87 of Practice Aet construed. The question presented to the trial court upon a motion to direct a verdict is one of law and not of fact; in deciding that question the trial court is not empowered to weigh the evidence and thereby assume to find any fact, but its function is limited to determining whether or not there is any competent evidence in the record fairly tending to prove the fact in issue. The power vested in the Appellate Court by virtue of section 87 of the Practice Act is, however, much broader, and includes the power upon appeal from a judgment of the trial court, to reverse such judgment without remanding the cause upon the ground that the weight of the evidence does not authorize the verdict. Alfred v. C. C. C. & St. L. Ry. Co., 123 Ill. App. 477, followed.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed with finding of fact.
    Opinion filed May 26, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Cloud & Thompson, for appellant; John G. Drennan, of counsel.
    Ray & Dobbins and Schneider & Schneider, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Upon a former appeal from a judgment in favor of appellee and against appellant for $2500 for wrongfully causing the death of appellee’s intestate, such judgment was reversed and the cause remanded because of the admission of incompetent evidence and the giving of improper instructions. 149 Ill. App. 588. A subsequent trial of the case resulted in a verdict and judgment against appellant for $5000 to reverse which judgment this further appeal is prosecuted.

The main facts in the case are disclosed in the former opinion in which it was held that the trial court properly refused to give the peremptory instruction tendered by appellant because we were unable to say as a matter of law that the deceased was guilty of contributory negligence. The evidence adduced upon the last trial was the same in every substantial particular as that adduced upon the former trial, and the conclusion arrived at by this court upon the former appeal that such peremptory instruction was properly refused was binding upon the trial court on the subsequent trial of the case when similar instructions were tendered by appellant at the close of the evidence for appellee and at the close of all the evidence, and such conclusion is binding upon this court on the present appeal.

In C. C. C. & St. L. Ry. Co. v. Alfred, 123 Ill. App. 477, we held that the question presented to the trial court upon a motion to direct a verdict was one of law and not of fact; that in deciding that question the trial court was not empowered to weigh the evidence and thereby assume to find any fact, but its function was limited to determining whether or not there was any competent evidence in the record fairly tending to prove the fact in issue; that the power vested in the Appellate Court by virtue of sction 87 of the Practice Act was much broader than the power vested in the trial court, and included the power, upon appeal from the judgment of the trial court, to reverse such judgment without remanding the cause upon the ground that the weight of the evidence does not authorize the verdict. The rule as thus stated is supported by abundant authority cited in the Alfred case.

Conceding in the case at bar, that appellee established the negligence of appellant as charged in the declaration it was still incumbent upon her to show that her intestate, at the time he received the injury which caused his death, was not guilty of negligence which contributed to produce such injury, or in other words that he was then in the exercise of due care and caution for his own safety.

The only witnesses who saw the deceased, or the wagon in which he was riding, at and immediately prior to the time he was killed, were A. H. Isbell, the engineer upon appellant’s locomotive, and E. S. Scudder, a bystander. Is-bell testified, substantially, as follows: “As I approached Randolph street I saw a person approaching the crossing. When I first observed this person approaching the tracks I think I was about thirty feet from the center of the street. As I approached and got within about thirty feet of Randolph street crossing I saw a mule team coming up Randolph street from the south, in a very fast trot, and they came on. I got to the center of the crossing before the mules did, but they veered off towards the east side of the crossing and jumped across the front .of the engine and the engine struck the front wheel of the wagon. When I first saw the team it was moving as fast as*it could trot, it was going north. I thought it was in the middle of the street. It was hitched to a delivery wagon. I saw a person in the wagon. He was sitting in the east side of the front end of the wagon. He was doing nothing so far as I saw. When I saw him he was just sitting there in the wagon and the lines tied up and hanging from the top of the wagon, he did not have hold of them. I did not see him make any motion while he was within my view. I watched the wagon until it was struck. I watched it what time it lasted. I saw them until they crossed in front of me. . I was looking at them all the time until they crossed the track. The way the mules were coming and I was going if they had come on in the middle of the track, they would have run into the engine.”

Scudder testified substantially as follows: “Before the train got to Randolph street I was less than ten feet from the track, perhaps six feet. I observed a team coming in the direction of the tracks, from the south, on Randolph street, when the 'train got up almost on to the crossing. While I was standing there waiting for the train to pass, and the train got close to the crossing, I heard a team coming at a rapid rate of speed, the wagon making considerable racket on the pavement. This team came up at a fast trot, and when the engine came onto the crossing, perhaps the pilot in the center of the brick pavement, the team discovered the engine and sheered off to the east and went around to the sidewalk, and they started in a run as soon as they saw the engine, to get by. The team got over and the wagon just struck the pilot, and the team broke loose and went on, and the wagon turned over to the south. When I saw the team coming, I saw there was going to be an accident, and I ran out and hallooed at them, and took off my cap and yelled at them. . I was too late, it did no good. I hallooed, “Whoa” as loud ás I could halloo. I think three times, two or three times. When I first saw the team it was perhaps forty or fifty feet from the track. The team was going I think better than ten miles an hour. I think they were trotting, I will not be positive about that, but when they discovered the engine on the crossing, they started in a run and swung around, and went over off of the walk—one of the team, it was the east mule. The team was going faster than the train. I did not see anyone in the wagon. There was a cover over the wagon, I think it projected out to the dash-board anyway. I don’t think the whole thing occupied more than two seconds, it was very quickly done.”

It is fincontroverted that the evening upon which the deceased was killed was dark and the weather was cold and misty; that he was riding on the seat of the delivery wagon, and that the wagon cover was down so that both sides of the seat were enclosed by the cover, and a hood projected out above the seat; that deceased was familiar with the crossing, having occasion to drive over it frequently every weekday; that he knew no gates were maintained or operated at the crossing. While it may not be said that the failure of the deceased as he approached the crossing to stop and look and listen constituted contributory negligence on his part as a matter of law, we are irresistibly forced to the conclusion that the conduct of the deceased in driving his team at a rapid pace toward and upon the railroad crossing, under the circumstances disclosed by the evidence, was such contributory negligenec on his part as a matter of fact, as precludes a recovery in this case.

The judgment of the circuit court is reversed with a finding of fact to be incorporated in the judgment of this court.

Reversed ivith finding of fact.

Finding of fact: We find as an ultimate fact that at and immediately prior to his death, appellee’s intestate was not in the exercise of ordinary care for his own safety.

Mr. Justice Philbrick took no part.