text:
    Charles F. Miller, Appellee, v. St. Louis, Springfield & Peoria Railroad Company, Appellant.
    1. Release—"burden of proving fraud!. In an action for personal injuries received by plaintiff while a passenger on defendant road, where defendant produces a release signed by plaintiff, the plaintiff who claims the release was procured hy fraud has the burden of proof.
    2. Release—ratification. Where plaintiff, after signing a release of all claims for damages resulting from injuries received while a passenger on defendant road, cashed a draft given in settlement, he thereby ratified the settlement.
    3. Release—effect. In a personal injury action where a clear preponderance of the evidence shows that there was no fraud in procuring a release of all claims for damages signed by the plaintiff when he was mentally competent to transact business, and that he cashed a draft given in full settlement, the judgment for damages will be reversed.
    Appeal from the Circuit Court of Sangamon county;' the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed with finding of fact.
    Opinion filed October 15, 1912.
    Graham & Graham and H. C. Dillon, for appellant; George W. Burton, of counsel.
    Albert Salzenstein and Weil & Bartley, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The appellee recovered a verdict and judgment for $1,615 in a suit brought by him against the appellant for damages received by appellee, while he was a passenger on a car of appellant near Staunton, Illinois, on October 4,1910.

Appellant introduced in evidence a release executed by appellee for $215 on October 8, 1910, releasing appellant from all claims for damages, and also a draft dated October 8,1910, payable to the order of Charles F. Miller for $215 which recites that it is in full settlement for all claims or damages to his person and property resulting from an accident on the St. Louis, Springfield and Peoria Eailroad on the fourth day of October, 1910. This draft was cashed by the Granite City Bank and the proceeds were received by appellee on October 15, 1910.

It is contended by appellee that the release was secured by fraud, in that the appellee procured the execution of the release at a time when he was mentally, incompetent to execute it, and did not know what he was doing at the time.

Appellee was.injured between 3 and 4 o’clock in the afternoon in a collision. He was placed on a relief train and taken to the Granite City Lutheran Hospital, some twenty miles distant from the scene of the accident. While on the way to the hospital about the middle of the trip, he was weak and faint and was given some brandy and a hypodermic injection of strychnine and morphine by Dr. Hunter. His injuries consisted of a broken rib—the fifth or sixth on the left side—a fracture of the collar bone on the same side, and many bruises on his body. Dr. Hunter treated his wounds at the hospital that evening. He was not giving any other hypodermic injection. Dr. Hunter did not treat the appellee after the first evening and was asked no question about his mental condition, but testified that he was weak, faint, and suffering pain.

Appellee testified that on October 8th, two men, C. H. McLaughlin and E. F. Anderson, introduced themselves to him at the hospital, gave him their card, talked to him about the accident and said they would like to adjust the matter; that he told them he was not in any condition to talk business and not to bother him; that they went away and came back that same day after dinner and started talking in the same line, but he remembers nothing more; that he does not remember signing the release, although part of the signature looks like this, but he cannot state whether it is or is not his signature; that he does not remember ever seeing the release until during the trial; that he did not remember seeing the draft until during the trial although the signature on the back of it looks like his and he thinks it is his. Frank C. Miller, a locomotive engineer, who had attended high school and is a son of appellee, testified that he was in his father’s room in the hospital in the forenoon of October 8th when a man, that he recognizes as McLaughlin, came and talked to his father about an hour, but that he did not hear the conversation; that this man and another man came back in the afternoon between 2:30 and 3 o’clock and talked to his father, but he did not hear the conversation; that his father was sitting in a chair; that these men called the attention of the witness to a paper, threw it down on the bed, asked him to sign it and he signed it. He testified the paper was not read and nothing was said about what it contained; that he did not talk much to his father because he was too excited to talk, and that his father was mentally unfit to transact business.

J. G. Pressley, a bus driver, testified that he talked with appellee about ten minutes, when he was sitting in a chair after 4 o’clock on the afternoon of October 8th, and that appellee seemed excited in talking about the wreck. Dr. Simpson, a dentist, and T. B. Stevens, who is in the loan association business, testified that they, talked with appellee on October 10th, about fifteen minutes and that he became excited and “any questions asked were hardly answered intelligently.” George Sinnegar testified that he talked with appellee an hour and a half on October 15th, and he seemed very nervous and gave a disconnected account of the wreck. This is substantially all the evidence on behalf of appellee attacking the release.

To sustain the release, R. F. Anderson and C. H. McLaughlin, attorneys for appellant, who were present when the release was signed, testified that at the time it was signed they talked with appellee from thirty minutes to an hour; that he discussed the accident and his income with them; that he said the doctor had told him he would be around in three or four weeks; that he talked about his suffering and they all agreed money would not compensate him for his suffering and that $175 to $180 would compensate him for his loss of time and personal effects; that after a settlement for two hundred dollars was suggested appellee thought he ought to have a 1,000 mile book, and was told that would have to come through a different department; that he said such a book would cost fifteen dollars, and they agreed then on a settlement for $215, the appellant also to pay all his hospital and medical expenses; that the release and draft were drawn on that basis and the release was read to appellee in the presence of his son; that appellee stated to his son if he signed the paper it would end the matter, and the son said that it was for him to use his own judgment, and that appellee signed the release and the son signed it as a witness. These witnesses testified to the conversation and that he was rational and neither nervous nor excited. Miss Neubarth and Miss Cutcamp, two experienced day nurses at the hospital, testified that they saw appellee sev-. eral times every day after he was injured; that they talked with him and heard him talk, waited on him, washed him and took his meals to him; they both testified that he was of a jovial disposition and always rational and intelligent.

Dr. Scott saw appellee October 4th and assisted Dr. Hunter in bandaging appellee and saw him and talked with him daily thereafter. He testified that appellee was always rational and talked intelligently and gives the general tenor of his conversations. Dr. Lindquist saw and talked with appellee at the hospital on October 5th and 11th; he testified that appellee was rational and possessed all his faculties, and that the effect of the hypodermic injection would last three or four hours.

H. C. White, claim agent for appellant, testified that on October 11th, he went to the hosiptal to see another party and that he talked with appellee at that time; that appellee told him he had settled his claim and gave him the details of it and said that he had been fairly treated. He also testified that in February, 1911, at the Meyer hotel in Peoria, appellee told him he did not think he had got enough money out of the settlement and that others got a good deal more; that he had settled, but that he thought if he could see McKinley personally he would pay him more. On October 15th, appellee sent one Howard, an employee of the pospital who could not be found at the time of the trial, to the bank to cash the draft. Howard was a stranger to the bank and the bank required him to be identified. Dr. R: D. Luster was in the bank at the time, and knew Howard as an employee at the hospital; he declined to indorse the draft but said he was on his way to the hospital and would see that appellee got the money. He drove with Howard to the hospital and saw appellee walking around in the hall, talked with him, saw him count the money when it was handed to him and says his mind was perfectly normal at the time.

The hospital record kept in the daytime by Miss Neubarth and Miss Cutcamp, and at night by another nurse, was introduced in evidence without objection. It shows that appellee had light diet and was restless October 4th, 5th, and 6th, but after that time he ate and slept well from that time until he was discharged from the hospital on the eighteenth, and that on the day the release was executed his pulse and temperature were normal, and that he had taken no medicine and was on a general diet.

The original bill of exceptions was by agreement made a part of the record in this court. The original release and draft are a part of the bill of exceptions and this court has the benefit of their inspection. The release is on a printed form, the body of which is all either in ordinary long primer Roman type print or typewriting, except the amount paid, the date, and the signatures of appellee and the witnesses, which are in writing. At the top of it is printed in eighteen point, heavy face, Gothic capital letters, nearly a quarter of an inch in height in very bright red ink, the words “Release of all claims and damages.” The remainder of the release is in black ink. This red heading is the most striking print on the release and attracts the eye at a glance. Frank 0. Miller and Anderson and McLaughlin signed it as witnesses to the signature of appellee; beneath the signature of appellee is a certificate signed by .them containing the statement that it was read in the presence of appellee and that he understood and knew that he was signing away his right to any claim for injuries.

The draft is on a printed form filled in in writing and has in the center of it a line in ten point, full face, Gothic capital type, being very black letters the words: “In full settlement for all claims or damages to” his person or property. This draft was accepted and retained with the notice on the draft that it was a settlement of his claim. By cashing the draft and keeping the proceeds he also ratified the settlement.

The son of appellee, who signed as a witness to the release, is an educated man of ordinary intelligence with all his faculties. The release was signed and the conversations concerning it with appellee were held in a room about ten by twelve feet. The son was in the room while the writing was being filled in, and while the settlement was under discussion. It is incredible that he could sign, as a witness, a release with this red letter heading to it without seeing the heading, which is as prominent and striking as a locomotive headlight in the night time. It is also incredible, if his father was in the condition he says he was, that he should permit strangers to talk to him the length of time he says McLaughlin and Anderson talked to his father. The evidence of the nurses and the record shows clearly that appellee was fully competent to transact business.

The draft which had a distinct notice on its face of what it was given for was held by appellee a week and then was indorsed and cashed only three days before he was discharged from the hospital and the proceeds retained. The burden was on the appellee to prove fraud in procuring the execution of the release. The manifest and very clear preponderance of the evidence shows that there was no fraud in the procuring the execution of the release and that it is a valid defense to this action.

It is unnecessary to review the other assignments of error. The judgment is reversed with a finding of fact.

Reversed.

Finding of fact: There was no fraud in the procuring the execution of the release offered in evidence ; the appellee was mentally competent to transact business when the release was executed and appellee also ratified the release by cashing the draft with notice that it was given for a release, and retaining the proceeds.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Albert S. Hudson, Appellee, v. Yeomen of America, Appellant.
    1. Appeals and ebbors—presumption. .Where a case is tried without a jury and no written propositions of law are submitted to the court and no complaint is made concerning rulings on the admission of evidence, it is presumed that all questions of law were correctly decided.
    2. Appeals and ekboks—validity of contract of employment. In an action for damages resulting from appellee’s discharge, appellant cannot question the validity of the contract of employment where it is not raised by any assignment of error.
    3. Damases—mitigation. In an action by an employee for wrongful discharge, where the employer seeks to mitigate damages, he has the burden of proving what the employee earned or might have earned.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Fred B. Silsbee and George M. Morgan, for appellant.
    Barber & Barber, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion, of the court.

Albert S. Hudson was employed by the Yeomen of America, a fraternal beneficiary society, under a written contract to work from January 1, 1909, to December 31, 1909, for the society under the direction of W. 0. Guyton, district deputy of the society, and to perform such other duties as may be required of him by the National Executive Board of the society, at the salary of one hundred dollars per month. The society in order to curtail expenses discharged Hudson from July 1st to September 20th, when he again resumed work for the society. After the expiration of the contract he brought suit to recover damages resulting from his discharge.

The case was heard by the court without a jury and a judgment rendered in favor of plaintiff for $275. The defendant appeals.

No propositions of law were submitted to the court by either party and there is no question raised by any assignment of error concerning the admission of evidence. Where a case is tried without a jury and no written propositions are submitted to be held as the. law by the court, and no complaint is made concerning rulings on the admission of evidence, it will be presumed that all questions of law were correctly decided. Jacobson v. Liverpool & L. & G. Ins. Co., 231 Ill. 61; Boening v. North American Union, 155 Ill. App. 528.

Appellant insists the contract of employment was void. That is a question of law that is not raised in the case by any assignment of error on the admission of evidence or propositions of law submitted to be held by the court.

It is also claimed that the court should have deducted from the salary of the plaintiff during the time he was discharged, such sum as the plaintiff might by reasonable diligence have earned elsewhere. In order to mitigate damages for the wrongful discharge of an employee the employer has the burden of proving what the employee earned or might have earned (Kelly v. Louisville & N. R. Co., 49 Ill. App. 304; School Directors v. Orr, 88 Ill. App. 648), but appellant offered no evidence on that subject.

This court cannot interfere with the judgment of the trial court on a question of fact unless the judgment is manifestly against the weight of the evidence. The evidence sustains the judgment; it is therefore affirmed.

Affirmed.


text:
    Arthur W. Ferreira, Appellee, v. Isaac R. Diller, Appellant.
    1. Automobiles—statute regulating. The statute requires an automobile passing any vehicle going in the same direction to pass to the left, and the vehicle about to be passed upon signal to turn to the right.
    2. Damages—excessive verdict. Where a boy fifteen years old immediately 'after an accident got on his feet without any bones being broken or outward appearance of injury except a sprained knee and abrasions of the skin, and the principal injury claimed to have been suffered by the nervous system is apparently not of a permanent nature, a verdict for $5,000 damages is excessive.
    3. Infants—degree of care required of. An instnuction to a jury as to the degree of care required of a minor should include as elements to be considered his “capacity and intelligence.”
    4. Infants—instructions as to measure of damages. An instruction authorizing the jury in measuring the damages to be awarded a minor to take into consideration the effect of his injuries on his physical ability is erroneous because it includes earnings of which he would be deprived until maturity, belonging to his father.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Robert M. Patton and Patton & Patton, for appellant.
    Thomas L. Jarrett and Graham & Graham, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Plaintiff, a minor, began the suit by his next friend to recover damages for personal injuries sustained by him by being run over by an automobile operated by the defendant. Plaintiff recovered a verdict and judgment for $5,000, from which the defendant prosecutes this appeal.

The declaration charges the defendant with running the machine at a high and dangerous rate of speed, and that he was careless and negligent in its management.

The evidence shows that the plaintiff at the time of the accident was a boy fifteen years of age. On the date of the accident plaintiff had been to the State Fair. Plaintiff’s father has a blacksmith shop on the east side of Second Street in the City of Springfield, just south of the alley midway between Jefferson and Madison Streets. There is a street car track along the center of Second Street. About half past six on the evening of October 4, 1909, plaintiff with his father drove in'a buggy from the north on Second Street to the shop where plaintiff had left his bicycle, that the boy might get it. The family live south from the shop. When the boy got the bicycle, the father started south towards his home and saw the defendant coming north on the east side of Second Street, a block and a half distant, and with his buggy passed defendant at the intersection of Jefferson Street. Plaintiff got on his bicycle in front of the shop, saw the automobile coming north on the east side of the street midway between the street car track and the curbing just after it had crossed Jefferson Street, and rode into the street intending to go south toward his home, but for some reason turned and went northwest across the street. Plaintiff states he did not see the automobile after seeing it near Jefferson Street until he was struck on the street car track by the machine. One of plaintiff’s witnesses testified that when plaintiff left the curbing on his bicycle the automobile was only twenty feet south of him. The plaintiff states he did not ride on the bicycle down the alley, but mounted the bicycle at the shop door and rode northwest across the sidewalk and the curb and off the curb into the street; at a former trial he testified he rode west across the street.

The defendant testified that when he was forty-nine feet south of the alley the plaintiff rode down the alley and he began blowing the horn on the automobile and that the boy rode into the street when the defendant was about twenty feet south of the alley and he turned his machine to the northwest, toward the street car track, to go around the boy expecting him to turn north, and put on the brake and disconnected the clutch, and called to the boy, who turned and looked toward him, and turned the bicycle directly in front of the ear. He also testified that he was not going over four miles an hour when the boy was struck on the street car track and went under the car; that he then took his foot off the clutch to get the machine over the boy. The automobile was stopped a few feet distant from the boy.

The evidence is very conflicting as to the rate at which the automobile was going just prior to the accident ; the evidence on behalf of the plaintiff tending to show it was going from twenty to thirty miles an hour, while that on behalf of defendant tends to prove that it was only going eight miles an hour at the crossing of Jefferson Street and was slowed down from there, approaching a railroad crossing at Madison Street and was not going over four miles an hour when plaintiff was struck.

If plaintiff was about to go north on Second Street he should have kept the right-hand side of the street; the statute requires an automobile passing any vehicle going in the same direction to pass to the left, and the vehicle about to be passed, upon signal, to turn to the right of the center of the beaten track. Stat., sec. 269, chap. 121.

The evidence shows that immediately after the accident the plaintiff got upon his feet; no bones were broken and there were no deep cuts; the only outward appearance of injury, except to the knee which was sprained, were contusions and abrasions of the skin. The injury claimed to have been suffered is principally to the nervous system, the result of shock. The injuries apparently were not of a permanent nature.

The third instruction given at the request of the plaintiff tells the jury “that if you believe from all the evidence that the plaintiff in this ease, before and at the time of the injury, was in the exercise of such care and caution for his own safety as a reasonably prudent person of his age, knowledge, and experience would have exercised under the same circumstances then the plaintiff was in the exercise of reasonable care and caution for his own safety.” The instruction should have included “the capacity and intelligence” of the plaintiff as elements to be considered in passing on the question of whether he had shown that he was in the exercise of due care. Fowler v. Chicago & E. I. R. Co., 234 Ill. 619; Lake Erie & W. R. Co. v. Klinkrath, 227 Ill. 439. Appellee relies on the dissenting opinion in the Klinkrath case as authority for the giving of the instruction. . This court must follow the opinions of the supreme court and would net be justified in following a dissenting opinion.

The instruction on the measure of damages authorized the jury to take into consideration “the effect, if any of such injuries on his physical ability.” Physical ability includes ability to earn and produce. The earnings of plaintiff until he arrives at the age of twenty-one belong to his father; plaintiff would only be entitled to damages for earnings the injuries would deprive him of after arriving at maturity. The instruction is liable to the construction that in physical ability the loss of wages is included. We have reviewed the instructions so that on another trial the criticisms now made may be avoided, and reverse the case because we regard the amount of damages awarded as excessive.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Henry Marriage, Appellee, v. Electric Coal Company, Appellant.
    1. Practice—improper argument of counsel. Argument of counsel to the jury as to the propriety of a ruling of the court and the effect of excluded evidence, commenting on objections of opposing counsel, when within their legal rights, and appeals to prejudices of the jury, violate the rules of practice, are improper and unprofessional, and constitute ground for reversal.
    2. Practice—reading of law try counsel to jury. In addressing the jury tn civil cases, an attorney may present a view of the law, but he has no right to read from law books.

      Appeal from the Circuit Court of "Vermilion county; the Hon. E. R. B. KnasBouaH, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    Charles Troup, for appellant; Mastin & Sherlock, of counsel.
    Thomas A. Graham, for appellee; Charles W. Fleming, of counsel.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a suit brought by Henry Marriage against the Electric Coal Company to recover damages for personal injuries alleged to have been sustained by him while he was in its employ as a coal miner. The declaration contains several counts, some alleging that the defendant wilfully failed to comply with section 21 of the Mines and Miners Act, and others that the defendant was guilty of common-law negligence. The plaintiff recovered a verdict and judgment for $3,000. The defendant appeals.

The evidence shows that plaintiff was injured on February 4, 1911; that within two or three hours after he was injured, his family called a surgeon to examine and treat him; that all that the surgeon discovered was that plaintiff was suffering pain from bruises about the hip, there was neither any swelling nor any indications of a fracture or dislocation; the next morning the surgeon went to further examine or treat him but was told the family did not want him, that they had got another physician. The evidence does not disclose that any other physician was ever called to treat plaintiff, although he now claims that his hip was fractured and dislocated. The evidence leaves the question of the extent of plaintiff’s injury in great doubt. To justify the amount of the damages awarded, the injury must have been serious and permanent in character; if the injury was slight then the damages awarded are excessive.

In the final argument to the jury by plaintiff’s counsel, the statement was made that “Hartshorn Brothers are not here to-day, they were not here yesterday;” objection was made to this statement of counsel, the plaintiff’s counsel proceeded “they are not taking any interest in the case;” objection was again made and counsel was admonished by the court to confine himself to the evidence; counsel proceeded “I will say this about it; it is no more unreasonable in this case that we did not call Mr. Marriage’s brother than that they did not call the Hartshorn Brothers to show they were complying with the law in this case;” objection was again made to the remarks and counsel continued “Why, no. He argued why we didn’t call this man’s brother. Why didn’t they call the Harts-horn Brothers?”

At another time counsel read section 21 of the Mines and Miners Act. Objection was made, and then counsel continued, “Why doesn’t he want me to read that law to-day? Because his company violated it;” objection was sustained to this remark and counsel continued, “Well, Mr. Troup is very technical here this morning about this argument. He seems to be afraid to let me argue this case.”

The record shows that plaintiff made an offer to exhibit his leg to the jury and counsel for defendant objected to this demonstrative evidence. The court said it would be better to have the description of the injury in the record in words if it could be done. Counsel for plaintiff in final argument commented on the objection of defendant to this offer of evidence, aud why the leg was not exhibited to the jury; objection was made and sustained to this line of argument; counsel then proceeded to argue, “why didn’t they call the company doctor?” There is no evidence in the record tending to show that the company physician ever saw the plaintiff. Counsel again com-merited on the ruling regarding the exhibition of plaintiff’s leg and got into another colloquy with the court.

Without reviewing the merits of the case for the reason that on another trial there may be additional evidence, it is sufficient to say the evidence is very conflicting, and of such a nature that improper conduct of counsel requires a reversal.

Hartshorn Brothers referred to by counsel for appellee may have had some interest in the mine as stockholders, but there is nothing in the case showing that they had any personal knowledge of how plaintiff was injured, but plaintiff’s brother was with him in the mine at the time he was injured and knew about the circumstances under which he was injured. Comment on the absence of witnesses related to the parties to the suit, who are shown to have knowledge of the case, was proper but comment concerning the absence of parties not shown to know anything about the case was not permissible and was only made for the purpose of appealing to the prejudice of the jury.

The court had not permitted plaintiff to exhibit his leg to the jury. The conduct of counsel in arguing to the jury the propriety of this ruling and. the effect of such evidence, which was not before the jury, was improper and unprofessional. Chicago & M. Elec. R. Co. v. Judge, 135 Ill. App. 377; Parlin & Orendorff Co. v. Scott, 137 Ill. App. 454; Turner v. Lovington Coal Min. Co., 156 Ill. App. 60. Counsel not only argued to the jury the effect of evidence not before it under the ruling of the court, but disregarded the ruling of the court on the propriety of his argument by in substance repeating what the court had held to be improper.

In civil cases the law is given to the jury by the court, and while counsel have the right to present their view of the law in argument, they have no right to read from law books to the jury. Counsel for appellee in this case not only read law to the jury, but after objection was made to such improper conduct, deliberately disregarded the ruling of the court by commenting on the motives of opposing counsel making the objection, who were strictly within their legal rights. The conduct of counsel was a violation of the rules of practice and a wilful defiance of the ruling of the court. City of Chicago v. McGiven, 78 Ill. 347.

The unwarranted argument of counsel for appellee undoubtedly greatly influenced the jury in plaintiff’s favor and the judgment must be reversed because of such unprofessional conduct. The judgment is therefore reversed and the cause remanded.

Reversed cmd remanded.


author: Me. Justice Creighton

text:
    The First National Bank of Taylorville, Appellant, v. William E. Dee Clay Manufacturing Company et al., Appellees.
    1. Drainage—orders of drainage district to pay money construed. Where all the money raised by a first assessment to pay for construction work by a drainage district has been paid out and orders to pay contractors “out of moneys in the treasury not otherwise appropriated” are given at the time a second levy is made for the purpose of meeting the debts represented by the orders, such orders will be construed as being intended to be paid out of the funds to be raised by the second levy and as not to be cashed until all other existing debts have been paid.
    2. Drainage—purchaser of drainage district order tahes with notice of illegality. One who receives or one who purchases orders for money issued by a drainage district is put upon notice as to the legality of the proceedings of the commissioners in issuing them.
    3. Contribution—purchaser of invalid drainage district orders cannot require other creditors to contribute. Where a drainage district lets contracts to several contractors, paying some of them in full by money obtained from an assessment and giving orders on the treasury to others that are to be paid by money obtained by a second levy, and such levy is declared invalid, a purchaser of the orders cannot require the contractors who are paid in full to contribute to his loss by compelling them to repay into the treasury such portions of their payments as will equalize the claims of all the creditors.

      4. Dbainage—when purchaser of drainage district orders cannot recover of payee. -Where a drainage district issues- orders on its treasury to contractors and the assessment levy to pay the orders is declared invalid, a purchaser of the orders cannot maintain a bill to require the payees to repay the money received from him, since the orders are not negotiable and the remedy, if any, is at law.
    5. Dbainage—when district is necessary party defendant. Where a drainage district issues orders on its treasury to contractors and an assessment levy to pay them is declared invalid, a purchaser of the orders cannot maintain a bill to require contractors to contribute who have been paid in full under a prior levy, and that the amounts of the orders be declared to be an existing indebtedness of the drainage district, and that the payees be required to repay the amounts received, unless the drainage district is made a party defendant.
    6. Dbainage—when district is necessary party defendant. Where a drainage district issues orders on its treasury to contractors and the assessment levy to pay the orders is declared invalid, on a bill by a purchaser of the orders to require contractors who have been paid in full by a prior assessment to contribute to his loss and that the amount of the orders be declared to be an existing indebtedness against the drainage district, the indebtedness cannot be declared to exist if the drainage district is not made a party defendant.
    7. Equity—when 5ill is multifarious. Where a drainage district issues orders on its treasury to contractors and an assessment levy to pay them is declared invalid, a bill by a purchaser of the orders to require contractors to contribute who have been paid in full under a prior levy, and to have it declared that the amount of the orders is an existing indebtedness of the drainage district and that the payees of the order be required to repay the amount received, is multifarious.
    Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Hogan & Wallace, for appellant.
    Taylor & Taylor, for appellees.
   Me. Justice Creighton

delivered the opinion of the court.

This was a bill in chancery filed in the Circuit Court of Christian County, alleging in substance that an assessment was levied by the drainage commissioners of Drainage District Number 2, of $4,033.80, for .the purpose of defraying the cost of putting in drains within said district; that a contract was let for the work of excavating, and the placing of tile drains; that a contract was let to the Wm. E. Dee Clay Manufacturing Company to furnish a portion of the tile, and other parties who are named in the bill secured other portions of the contract; that after the contracts had been let it became apparent that an additional assessment would be necessary to raise sufficient money to complete the work of the drainage undertaken; that the commissioners of the district levied an additional assessment of $2,472 to meet this deficit; that said sum was levied against the property of the district, but that before the payment of the second levy had been made, a bill in chancery was filed by certain taxpayers owning lands in the district to enjoin the collection of the second levy; that the said second levy was perpetually enjoined by a decree, affirmed by the supreme court on appeal. Drainage Com’rs Dist. No. 2 v. Kinney, 233 Ill. 67. The bill then sets forth at length the names and the amounts of money received by each of the appellees from the first or valid levy; that after the payments above referred to, an order was issued to the Wm. E. Dee Clay Manufacturing Company for the sum of $698.17 for tile, “out of the moneys in the treasury not otherwise appropriated;” that at the same time the drainage commissioners issued to the Stoneware Pipe Co., an order in the same language, for the sum of $1,167 for tile, and tó W. P. Jones & Bro., an order, in the same form, in the sum of $361.26, for “tiling in full;” that these orders were transferred to appellant; that by reason of the decree holding said second assessment to be null and void, there was no money in the treasury of the said district wherewith to pay said above mentioned orders, and there exists no means at law by which same can be collected, or by which the said commissioners could Ipvy a tax or assessment and collect the same wherewith to pay said orders; that by reason of the invalidity of the said orders, no consideration passed from the appellees, 'Wm. Dee Clay Manufacturing Company, Stoneware Pipe Co. or W. P. Jones & Bro. to appellant, appellant having paid valuable considerations therefor; that by reason of the failure of the consideration as aforesaid, the appellees last mentioned became and were indebted in equity to appellant for the sum paid to each of them respectively.

The bill further alleges that by virtue of the invalidity of said second assessment there exists a deficiency in the treasury of the said drainage district, in the sum of $2,472, but that under the law there is no conditions and by reason of the fact certain other par-means to enforce the same; that by reason of these ties also contracting with the drainage district have been paid in full out of the original assessment, it is inequitable and unjust that a portion of the contractors should be paid in full and other contractors receive nothing; that those receiving payment in full should be required to repay into the treasury of the district, such portions of said sums as will equalize the indebtedness; that the loss should be equally distributed among all of the creditors.

The prayer of the bill is, that the said W. E. Dee Clay Manufacturing Company, the Stoneware Pipe Co. and W. P. Jones & Bro. may Tie decreed to pay to appellant the sums above mentioned as having been paid to them for their respective orders, and that the amount of the orders issued to the said parties last above named be declared to be an existing indebtedness against the drainage district; that the other defendants, appellees here, who were paid out of the first assessment, be decreed to pay into court a sum sufficient to equalize the claims of all of the creditors, leaving all creditors sharing equally the loss. The drainage district was not made a party to this proceeding.

To the bill, demurrers, both general and special, were filed. The court sustained the demurrers, and dismissed the bill for want of equity. From the decree so dismissing the bill, this appeal was perfected.

In the outset we find it necessary to eliminate from consideration the question as to the liability of the drainage district to have the orders mentioned in the bill declared an existing indebtedness against it, for the reason the drainage district was not made a party defendant, and was not brought into court.

In considering the question of the liability of the several creditors who have received their pay in full, to contribute to the loss sustained by appellant, it will be necessary to examine the language of the orders issued by the commissioners and sold to appellant. The following is a copy of the form in which all of said orders appear, viz.:

“The Treasurer of said Commissioners of Highways will pay-or order, -Dollars for-out of moneys in the treasury not otherwise appropriated.”

As to the date of the issuance of these orders, the averments of the bill are as follows s

“That out of the first assessment there was the following disbursements” (mentioning each defendant creditor and the amount of the order and date of payment, and then appears the following): “Your orator further represents that afterwards, to-wit, and pending litigation relative to said second assessment, the following orders were issued” (here setting forth each of the orders now belonging to appellant).

Thus we learn from the bill that at the date of the issuance of the orders now owned by appellant, all the money raised by the first assessment had not only been paid out, but the second levy had been made for the express purpose of meeting the debts represented by the orders held by appellant. The only proper construction to be given to the language of the orders, in the light of all the facts known at the time, is that these orders were intended to be paid out of the funds to be raised by the second levy. The commissioners seem to have contemplated, in drawing these orders, that they would not be cashed until all other existing debts had been paid, and it is to be presumed that the payees in the orders so understood at the time.

This drainage district was a g«ast-publie corporation, and had certain powers that it might legally perform. One of its powers was the levying of an assessment to defray the cost of constructing the drains contemplated by their organization. Before making such assessment they were, however, to ascertain in the manner pointed out by the statute, the necessary expense incident to this improvement. Had they pursued this course and determined the whole of the expense before making the levy, they would have been clearly within the purview of their rights. Failing to do that, but contracting a debt beyond the amount of the assessment, they were powerless to make other or further levies for the purpose. The commissioners acted, no doubt, in good faith in issuing the orders. The contractors, no doubt, acted in good faith in receiving the orders, and the appellant acted in good faith, we have no doubt, in receiving the orders when it bought them from the appellees. The validity of the orders, however, depended upon the legality of each step taken in the proceedings by the commissioners. The law puts one who receives, or one who purchases, orders issued by a drainage district upon his notice as to the legality of the proceedings of the commissioners in issuing them. The law requires that a record be kept and that all of the proceedings of the commissioners be recorded therein, so that anyone inr terested may determine for himself as to the validity of the orders issued by them.

The fact that the first assessment and group of orders proved to be valid, and enabled the holders thereof to receive cash from the treasury, is no reason, in our judgment, why the receivers of such orders should be held to contribute to the less fortunate.

The first class of creditors were in no way or manner associated with the last class. The last class of creditors were in no way connected with or interested in the contract or work of the first class. Each contracted for himself. Each performed the contract for himself and each exercised his judgment, in theory of law, as to the validity of the orders, that satisfied and paid his contract price. Having’ stood independent, without any privity in connection with these contracts up to the time, the court held the second assessment void, we can see no good reason in equity or good conscience, why they should now he called upon to share the loss with the appellant.

The further prayer of appellant’s bill is, that the Wm. E. Dee Clay Manufacturing Co., the Stoneware Pipe Co. and W. P. Jones & Bro. may be decreed to pay to the appellant the said sums above mentioned as having been paid to them for their respective orders.

There seem to be two valid legal objections interposed to the granting of such a decree.

This class of orders has been held to be non-negotiable. In the case of People v. Johnson, 100 Ill. 537, the court said:

“We regard the rule well settled, by considerations of public policy as well as by a decided preponderance of authority, that warrants or orders drawn by one municipal officer upon another, in the disbursement of the funds of the municipality and payment of its indebtedness, are not to be regarded as negotiable or commercial paper.” And it seems the indorser is not liable to the buyer of such orders in the absence of fraud. In Smith v. Myers, 207 Ill. 126, the supreme court said: “Upon a mere contract for the payment of money or the performance of any other covenant, where the instrument is not such as comes within the definition of a negotiable instrument, one by merely signing his name upon the back thereof does not become either a guarantor or an endorser, within the law merchant.” In 21 Am. & Eng. Ency. of Law, p. 28, we find the following: “Where warrants are transferred by endorsement, the endorser does not incur the liabilities of an endorser of a negotiable bill or note.”

This proposition is also upheld in the following:

“There is no implied warranty or guaranty on the sale of municipal bonds; and where, on a sale of such bonds their invalidity not having been determined, the seller stated that he believed the bonds were valid, and the buyer, after notice that the town claimed that the bonds were invalid, sued the town for the value thereof and their invalidity was determined, the buyer could not recover the price on the ground of false representations by the seller as to their validity.” 28 Cyc. p. 1614.

There is no allegation of fraud or deception in the sale of the orders in question. They were purchased pending the litigation questioning their validity, of which appellant had notice.

The second reason why the decree should not be granted as against the appellees, is that if there exists a legal liability to recover upon these indorsements, appellant should apply to a court of law.

Still another reason why the action of the chancellor should be approved is that the appellant failed to make the drainage district, the principal debtor, a party to the proceeding.

For the reasons above stated and the further fact that the bill is multifarious we conclude the demurrer was properly sustained and the bill properly dismissed. The action of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Creighton

text:
    Mabel Diehl and Dorothy Diehl, by Martha D. Smith, Guardian, Appellees, v. Mutual Life Insurance Company of New York, Appellant.
    1. Insurance—when answers in application are representations. Where a policy of life insurance states that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, answers to health questions in the application are representations.
    2. Insurance—effect of untrue representations. Representations in an application for life insurance made in good faith, even though untrue, will not prevent a recovery; to avail as a defense, the company must aver and prove the representations were false and that the applicant knew them to be false at the time he made them.
    3. Insurance—company has burden to prove misrepresentations were knowingly, made. Where a life insurance company alleges in special pleas that the insured made misrepresentations in his answers to health questions in the application, and that he knew at the time they were false, the burden of establishing such facts rests upon the company.
    4. Insurance—company delivering policy with knowledge that insured is ill is bound. Where an applicant for life insurance does not state that he has had asthma, if the company delivers the policy with the knowledge of its agent and general manager that the insured is then suffering with asthma, the concealment will not defeat a recovery on the policy.
    5. Insurance—evidence insufficient to show insured’s knowledge of disease. An applicant for life insurance stated that he was in good health and had had no serious illness. Two days later an attack of asthma, as supposed, developed, the company delivered the policy with knowledge of such fact. The insured died four months later from tuberculosis and an action was brought on the policy. The examining physician of the company had found no evidence of the disease and he stated that no one knows when it starts and it often terminates fatally in from three to six weeks. The insured’s physician found no evidence of the disease when he diagnosed the case as asthma, and it was a week later that he discovered the tuberculosis. Held, there was no sufficient evidence that insured knew he had tuberculosis when he made application, and a peremptory instruction was properly refused. 1
    Appeal from the Circuit Court of Coles county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Emery Andrews, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    James W. & Edward C. Craig, for appelles.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit to recover on a life insurance policy issued by appellant upon the life of one Albert L. Diehl, filed in the Circuit Court of Coles County. The declaration contained one count, and avers that on the 22nd day of August, 1910, appellant issued and delivered to said Albert L. Diehl a life insurance policy in the sum of $1,000 and that thereby the appellant agreed to pay to the appellees herein, upon the death of the said Albert L. Diehl, the said sum, in accordance with the terms and conditions of the said policy; that on the 12th day of December, 1910, the insured departed this life, and alleges that proof of death was furnished to appellant on the 29th day of the same month, and alleges a breach of the contract of insurance.

Appellant filed a plea of the general issue and ten special pleas, charging misrepresentation, deceit, and fraud, in the procurement of the insurance policy.

Issue was joined upon these pleas and the cause was heard by the court and a jury and verdict and judgment in the sum of $1,050 was rendered in favor of the appellees, from which judgment this appeal has been perfected.

Ten assignments of error are made upon this record. In our view, however, it will not be necessary to discuss all of them at length. The principal question arising under the issues in the case is whether or not the insured obtained the issuance of the policy of insurance by fraud and deceit in this, that he knowingly, falsely, and with intent to deceive the appellant company, represented in his application for the insurance, that he had had no illness, disease or accident since childhood except a case of typhoid fever and loss of one eye; that he was then in good health and had never raised or spat blood; that at the time he received the policy he was in good health, and that he had not consulted a physician in five years.

By reference to the policy and application introduced in evidence, we find inserted therein the following provision: “All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties and no such statement of the insured shall avoid or be used in defense to a claim under this policy unless contained in the written application herefor, a copy of which is indorsed hereon, or attached hereto.” The language here used clearly shows that the statements made in the application by the assured are representations and not warranties. We find this rule discussed at length in Illinois Masons’ Benev. Soc. v. Winthrop, 85 Ill. 537, and the same conclusion is announced in Minnesota Mut. Life Ins. Co. v. Link, 230 Ill. 273, where it is said: 11 There is a material and substantial difference between the legal effect of a warranty and a representation. A representation must relate to a material matter and it is only required to be substantially true, while a warranty must be literally true and its materiality cannot be called in question. It is said that warranties enter into and are made a part of the contract while representations are merely inducements to it. Whether the alleged false answers are warranties or mere representations is a question to be determined from a construction of the contract, which should be in accordance with the expressed intention of the parties.”

Representations in an application for insurance made in good faith, even though untrue will not prevent a recovery. To avail as a defense, the defense must aver and prove the representations in an application for insurance are false and that the applicant knew them to be false at the time he made them. This proposition is supported by the following authorities: Continental Life Ins. Co. v. Rogers, 119 Ill. 474; Globe Mut. Life Ins. Ass’n. v. Wagner, 188 Ill. 133, and Provident Sav. Life Assur. Soc. v. Cannon, 103 Ill. App. 536.

It is therefore to be determined from the evidence in this case whether or not the misrepresentations complained of were made by the insured, and if the insured knew at the time they were false. The burden of establishing these facts, as alleged in the special pleas, rests upon the appellant.

The undisputed evidence in the case shows that Albert L. Diehl a man about thirty-seven years of age, resided with his family in Mattoon, and appeared to be a healthy, robust man, six feet in height and weighing from 190 to 220 pounds; that he made the application for insurance in question, was examined by appellant’s medical examiner and by him passed as a suitable risk for insurance, on the 22nd day of August, 1910; that up to this time, with the exception of a case of typhoid fever, the loss of an eye and a minor affection of his back and at times colds and asthma, assured was not known to have suffered from any other disease or accident, and there is no statement, fact or circumstance appearing in this record that he, on the date of his application and policy, knew himself to be afflicted in any manner, except asthma and that, from the evidence, did not appear to be at all serious.

On the night of the 24th day of August, 1910, the assured took sick and sent for Dr. Eichardson. When the doctor appeared he found the assured suffering from asthma and treated him for same and continued this treatment under the belief that it was a case of asthma until about the 31st day of August, 1910, and at that time the doctor decided to make a further test. On or about the first day of September, 1910, he took a sample of the sputum and sent it to the State Board of Health at Springfield, for examination, and on the fifth day of the same month received from the State Board of Health a reply, disclosing the fact, positively, that the assured was suffering from tuberculosis.

The typhoid fever and the injury to the eye were mentioned in the application for the insurance. The attack of asthma on the 24th day of August came to the knowledge of Mr. Stump, appellant’s agent, on the 28th day of that month, and he notified the general manager of appellant at Terre Haute, Ind., that the assured was sick with asthma and asked whether or not he should deliver the policy. The general manager of appellant directed the agent to deliver the policy and he did so on the 29th day of August. The minor injury to the back and the occasional cold from which deceased had suffered, are neither of sufficient consequence to require further attention.

As to the asthma, the appellant had notice before the policy was delivered, and in the face of that notice, delivered the same. The appellant cannot insist upon a forfeiture of the policy for a cause which was within the knowledge of its agent and general manager at the time the policy was delivered. Security Trust Co. v. Tarpey, 182 Ill. 52; Globe Mut. Life Ins. Ass’n v. Ahern, 191 Ill. 167. This doctrine is supported by a long line of authorities in our own state.

The appellant indulges in the presumption that the assured was suffering with pulmonary trouble, and had knowledge of the same at the date of his application. This presumption is not supported by the evidence. In fact, we fail to find any evidence that the assured was suffering from tuberculosis on the 22nd day of August, when he signed the application, or in fact, that he was, at that date, afflicted with tuberculosis. Dr. Cleaves Bennett, the examining surgeon of the appellant, a physician described as having great experience in matters of this character, was acting as the examining officer for ten or twelve life insurance companies. He testified that he had known the assured for about fifteen years and stated the assured was “big, robust, powerful man,” that he gave him the usual careful examination as required by the appellant and recommended him for insurance. The doctor further testified: “I examined his heart and lungs by placing my ear at his heart, and listening to the heart beat, also feeling his pulse. I examined his lungs by listening on each side of his chest, both in front and behind. He had no coat or vest on and was at Ms place of business. On the 22nd day of August I found no evidence of tuberculosis.” This doctor further testified that, as an expert, he had known cases of tuberculosis where the patient died in from three to six weeks from the time when the patient was apparently in good health; that no one can know just when it starts.

The evidence of Dr. Bennett, as to the time which may intervene between the first appearance of this character of disease and death, is fully supported by the evidence of Dr. B. J. Coultas, and he further says that tuberculosis germs may lurk in the system and the person not know it; that a person might have consumption and, apparently, not be in a serious condition and the disease might cause the rupture of a blood vessel, and that patients have gone in twenty-four hours, or less time.

Dr. E. E. Bichardson, in his testimony, agreed with the other physicians, and also testified that he found no evidence of tuberculosis upon his examination of the assured on the 22nd day of August or thereafter until the 31st day of August or the first of September, and he then began to suspect that such might be the trouble.

The evidence of these physicians is- practically all of the evidence offered upon that subject. So far as the rights of the parties to this proceeding are concerned, it is not important whether the disease was of long standing or of short duration,' unless the evidence shows that the assured knew at the time he signed the application for the insurance that he had the disease, from which he afterwards died. Is it reasonable to conclude that the assured knew that he was suffering from tuberculosis on the 22nd day of August, when it had not sufficiently developed so that physicians of - skill and experience, when making a special examination, could detect the slightest symptom of such disease? We tMnk not.

In Minnesota Mut. Life Ins. Co. v. Link, 230 Ill. 273, on page 276, the court in discussing a question similar in character make use of the following language: “A person may have diseases of the presence of which in his system he has and can have no knowledge and which even skillful physicians are unable to discover after a most searching examination.”

We reach the conclusion, from the reason given above, that the peremptory instruction asked by the appellant was properly refused, and not finding any reversible error in the other instructions or the rulings of the court upon the exclusion or admission of testimony, and believing that substantial justice has been done in this cause, the judgment of the circuit court is affirmed.

Affirmed.


text:
    Leonard W. Ingham, Administrator, Appellant, v. James H. Mitchell, Appellee.
    1. Witnesses—qualification. Witnesses are qualified to testify as to the rental value of certain farm land where it appears that they are experienced farmers, well acquainted with the productive value of land in the neighborhood and that one of them had cultivated some of the land in question.
    2. Assumpsit—when no averment xohether rental contract was express or implied. On assumpsit for the rental value of certain land, where there is no averment whether the rental contract was an express or implied agreement, it cannot be urged that plaintiff’s evidence as to rental value is inadmissible because he has not shown that there was no express contract.
    3. Assumpsit—when proposition that an express rental contract existed need not be negatived by plaintiff. In an action for the rental value of certain land, where there is no averment whether the rental contract was an express or implied agreement, plaintiff need not negative the proposition that there was an express contract, but may proceed on the theory that there was none.
    4. Evidence—burden of proof. Where in an action for the rental value of certain land there is no averment in the declaration whether the rental contract was express or implied and defendant raises the question of an express contract by a plea, he assumes the affirmative of the proposition.

      5. Bill ot exceptions—when shown to contain all the evidence. It cannot be urged that a bill of exceptions fails to show that it contains all the evidence introduced where it recites that “the abové and foregoing is all the evidence heard, offered or considered by the court on the trial of this cause.”
    6. Costs—against administrator. It is error to render judgment against plaintiff, administrator, for costs, and to award execution thereon, since the judgment should provide that costs are to be paid in due course of administration.
    Appeal from the County Court of DeWitt county; the Hon. Heed C. Hill, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    George K. Ingham, for appellant.
    Herrick & Herrick and Edward J. Sweeney, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in assumpsit commenced by appellant ag’ainst appellee in the County Court of DeWitt County. The declaration contains one count, to which appellee filed the general issue and notice of set-off and payment. At the close of the evidence, the court, upon the motion of the appellee, gave the jury an instruction peremptorily directing them to find the issues for the defendant, appellee, which they accordingly did, and after overruling motion for new trial, judgment was entered in accordance with the verdict, and the appellant perfected his appeal.

Upon the trial of the cause, the following stipulation of fact was entered into by the parties to the proceeding, and filed as a part of the evidence herein, as follows: “that the plaintiff is the administrator de bonis non of the estate of Lillian Stock, deceased; that Lillian Stock, deceased, was from the beginning of the year 1903 down to the time of her death, in November, 1908, the owner of the following described land: 62% acres off of the full North side of the South half of the Southwest quarter of Section 30, and that she also, from about the beginning of the year 1905, was the owner of an undivided one-third interest in and to 62% acres off of the full South side of 160 acres off of the full North end of the Northwest one-fourth of Section 31, all of said land being in Township 19 North, Range 3 East of the 3rd P. M. in DeWitt County, Ill.; that as to the land last described, in which Lillian Stock had an undivided one-third interest, that the defendant, as tenant in common with her, also had an undivided one-third interest in the same land and that at the time of the beginning of this suit, and at the time of the death of Lillian Stock, the defendant was the owner of the other undivided one-third; that the tract first above described is a strip of land that was occupied and farmed by the defendant during the years 1904-5-6 and 7, as the tenant of Lillian Stock, and for the collection of the rent of which, this suit is in part brought.”

This stipulation admits the ownership of the lands in question to be in the deceased. Admits the administration upon the estate and the tenancy of appellee for the years 1904, 5, 6 and 7, and that this suit is for the collection of the rent upon said premises.

Appellant sought to show the rental value of the premises, for the years it was occupied by appellee, by the introduction of witnesses who rented and managed lands of similar character in the neighborhood where the lands here involved are located, and the following, among other questions, was asked: “Now, then, tell the jury what was the reasonable, usual and customary rental value during the years 1904, ’05, ’06 and ’07, of lands of the character and kind stipulated as the lands known as the ‘Mitchell land’ in the locality where it is situated?”

The following objections' were interposed to the question, viz.: that no sufficient foundation was laid; that it was immaterial and incompetent and irrelevant; that the witness was not qualified to answer the question and that the plaintiff is required to prove there was no express contract between plaintiff’s intestate and the defendant, and the court sustained the objections.

The objections seem to be based upon two grounds. One that the witnesses have not qualified, and the other that the appellant had not shown, as a negative proposition, that there was no express contract between appellee and the deceased.

As to the first objection the record in this case shows that both witnesses who were to testify were experienced farmers, well acquainted with the productive value of lands in the neighborhood of the farm in question, and one of them had cultivated some of the land in question for a period. Therefore, we conclude that the qualifications necessary to enable men to form a judgment of the rental value before taking the witness stand had been shown.

As to the second objection, appellee seems to base it upon a theory that appellant would not be permitted to produce parol evidence under the quantum meruit rule until he had first made proof that no express contract for the rent existed.

Under the stipulation in this case it was not necessary for the appellant to make any proof in order to recover, except the rental value of the premises in question. Every other material and necessary allegation of the declaration is embraced in the stipulation. There is no averment in the declaration of the appellant as to whether the rental contract was an implied or express agreement. Consequently it was not incumbent upon the appellant to negative the proposition that there was an express contract. The objection cannot be sustained upon that ground. The first time the question of an express contract appears in the record is when appellee pleads to the declaration. The appellant had the right, and evidently did, proceed upon the theory that there was no express contract. Appellee, having raised the Question of an express contract by Ms plea filed, assumed the affirmative of that proposition, and it was Ms duty to support it by evidence, if he desired to do so.

In this view of the case we are inclined to tMnk the appellant was correct. If so, then it follows that the court erred in sustaining the objections of appellee and excluding the evidence as to the rental value offered on the part of appellant.

It is urged by appellee that the court cannot review the evidence introduced in this case because, as he alleges, the bill of exceptions fails to show that it contains all of the evidence introduced upon the hearing.

The bill of exceptions, on page 38, contains the following statement:

“The above and foregoing is all of the evidence heard, offered or considered by the court on the trial of tMs cause.” Appellee is, therefore, in error as to the contents of the record on this question.

The court rendered judgment against the appellant administrator, and awarded execution thereon. This was error. In the early case of Welch v. Wallace 8 Ill. (3 Gilm.) 491, the court says: “the judgment should provide that costs are to be paid in due course of administration.” And in the cases of Paschall v. Hailman, 9 Ill. (4 Gilm.) 285; Turney v. Gates, 12 Ill. 141; Darling v. McDonald, 101 Ill. 370, tMs rule is supported and upheld.

The judgment is reversed and the cause is remanded to the County Court of DeWitt County.

Reversed and remcmded.


text:
    Vespasian Warner, Executor, Appellant, v. Minnie W. Mettler et al., Appellee.
    1. Chancery—commencement of suit. A chancery suit is not commenced within the provisions of R. S. c. 22, §§ 4, 8, 9, relating to the commencement of such a suit, where an executor’s report is marked “In Chancery” and placed upon the files without petition or bill in chancery, without prayer for relief or summons and without complainants or defendants.
    2. Chanceby—limits of relief. Relief under a bill in chancery must be confined within the limits of the prayer of the bill.
    3. Chanceby — sufficiency of facts. Sufficient facts must be stated in a bill in chancery that issue may be made by the proper pleading.
    4. Chancery—when proceeding not within practice act. Where an executor’s report is marked “In Chancery” and placed upon the files without petition or bill in chancery, without prayer for relief of summons and without complainants or defendants, the proceeding does not come within the Chancery Practice Act, providing that under certain circumstances chancery courts are open to deal with wills, estates, trusts and proceedings of that character.
    5. Chanceby—jurisdiction. The trial court does not acquire jurisdiction of the subject-matter of proceedings where an executor’s report is marked “In Chancery” and placed upon the files without petition or bill in chancery, without prayer for relief or summons and without complainants or defendants.
    Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Rehearing denied and opinion modified December 20, 1912.
    John Fuller, for appellant.
    Underwood & Smyser, Herrick & Herrick, Fred Ball and Ingham & Ingham, for appellee; Arthur W. Underwood, of counsel.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a report, according to the title of the case, “of Vespasian Warner, executor, of the last will and testament of John Warner, deceased, and testamentary trustee of the estate of said John Warner, deceased,” filed to the November term, 1911, of the DeWitt County Circuit Court, and designated “In Chancery,—Report of said testamentary trustee.”

This instrument first recites the death of John Warner; the appointment of appellant, by the will of the deceased, as executor and testamentary trustee, and sets out at length each clause of the said will, and further recites the fact that said will was admitted to probate and that appellant was, by the county court, appointed executor thereof without bond on the 29th day of January, 1906; that he then assumed the duties, and filed in the said county court an inventory of all of the property in which the estate had any interest; that on the 6th day of April, 1906, the widow of the said John Warner, deceased, filed a bill in the Circuit Court of said DeWitt County, praying that the antenuptial agreement mentioned in the said will be set aside and she be decreed to have dower and homestead in the lands of the deceased, as his widow, and also recited at length the disposition of the said proceeding.

The document further alleges that the said circuit court, on two different occasions, entered rules on appellant, as such executor, to file reports, in the case of the said widow against appellant, and recited at length the reports so filed, and also states that on the 4th day of October, 1907, Minnie W. Mettler and Arabella W. Bell filed in the said circuit court a bill praying for a partition of the lands of the said deceased, and that proceeding is set forth at length, and also quotes, at length, a report as ordered made in said partition proceeding.

The instrument then sets forth what purports to be an itemized statement of receipts and disbursements received and made by him from March 1, 1910, to November 30, 1911, and concludes with a prayer that he may be directed, as such executor and testamentary trustee, to pay to Messrs. Fuller & Crea as attorneys for the estate, the sum of $15,000 or such part of said sum as may be allowed by the court, for their services, which may be paid out of any money then held by him, or that may thereafter be received by him in such capacity.

It further appears that the following notice wad served: “To Mrs. Minnie W. Mettler and Mrs. Arabella W. Bell:

“Ton and each of you are hereby notified that on the 11th day of December, A. D. 1911, I, as Testamentary Trustee of the Estate of John Warner, deceased, filed in the circuit court of DeWitt county,, Illinois, a report as such Trustee, to December 1, 1911, and shall ask the court to approve the same.
“Vespasian Warner,
“Testamentary Trustee of the Estate of John Warner, deceased.”

Objections to the jurisdiction of the court were filed by the appellees, setting forth the following: “That this court is without power either to approve or disapprove said report for the reason that it is without jurisdiction to enter any order or decree of any kind whatever in the matter of said report; that said report is not filed in any suit or proceeding pending in this court; that said Vespasian Warner as trustee of the estate of John Warner deceased, is not acting as such trustee by virtue of any appointment of this court or any other court, but claims to be acting solely as testamentary trustee by virtue of the provisions of the will of said John Warner, deceased.”

Other objections were also filed at the same time, objecting to the allowance of some of the items in the report.

Upon the motion of the appellees the objections were, by the court, sustained, and the report ordered stricken from the files. To the sustaining of which motion, and said order of the court directing the instrument stricken from the files, the appellant excepted, prayed for and was granted an appeal, and has thus brought the record before us.

The report is not, in form or substance, a bill in chancery. It will be observed that there is no complainant, orator or petitioner; that no, not one, person is named as a party defendant; that no recitations or averments or complaints or statements, upon which issue could be joined, are set forth in the entire paper, unless the pleader anticipated that the correctness of his sworn report could be questioned; that there is no prayer for relief or prayer for summons. No relief was sought and no summons was ever issued. It will be further noticed that the causes recited were as to other suits and proceedings had between the executor and the widow and heirs over different subject-matter, and had no proper place in this report. The paper filed herein is a very voluminous executor’s report of the moneys received and expended by the appellant, between the dates named above, simply that and nothing more.

The question arising here is, can a report in a decedent’s estate be marked “In Chancery” and be placed upon the files, without petition or bill in chancery, or without prayer for relief or summons, or without complainants or defendants, and come within the provisions of our Chancery Act, which defines the commencement of a chancery suit in the following language (Sec. 4, chap. 22, R. S.): “The mode of commencing suits in chancery shall be by filing a bill of complaint with the clerk of the proper court, setting forth the nature of the complaint.”

Section 8, of the same chapter, provides: “Upon the filing of every bill, the clerk of the court shall issue a summons, tested, dated and sealed, as a summons in common law suits.” Section 9 of the same chapter provides that every summons shall be made returnable to the next term of the court.

The pleader in the case at bar seems to have ignored all of the provisions of the statute in his effort to present to the court what he terms a report of the testamentary trustee under the name of chancery.

An inspection of the record does not disclose that the appellant was ever appointed a testamentary trustee by the circuit court from which he brought this appeal. He was, however, appointed executor of the will by the Probate Court of DeWitt County, where all of the proceedings relating to that estate are, we presume, to be found.

To better determine the proper construction of the sections of the statute above quoted, we call attention to the case of Hodgen v. Guttery, 58 Ill. 431, where the supreme court says: “The statute has declared that a suit in chancery may be brought by filing a bill in the office of the clerk of the circuit court. The eighth section of the Chancery Act provides for the mode of publication, which is substituted for the service by summons. The fifth section authorizes the clerk, on the filing of the bill, to issue a summons for the defendant. The sixth section declares what the summons shall contain, and the seventh the manner of service. It will thus be seen that a summons cannot issue until the bill is filed. It is only upon its being filed with the clerk that the suit is commenced, or the summons can issue. Such is the statutory requirement. This act regulates and establishes the practice in such cases, and it alone confers power on the clerk to act, and he must conform to its' provisions. Until the bill is filed no suit is pending, and until it is commenced the clerk can neither legally issue process nor make publication.”

The relief which may be granted under a bill in chancery must always be confined within the limits of the prayer of the bill. This doctrine is recognized and enforced in the case of Ellis v. Sisson, 96 Ill. 106.

The first paragraph of section 10 of Puterbaugh’s Chancery Practice, says: “The bill must also contain a prayer for relief. This must depend upon the facts of each case and the nature of the relief sought. * * * .Unless there is a prayer, there can be no relief for the complainant.”

Facts sufficient must be stated in a bill so that issue may be made by a proper pleading. This rule of chancery practice is supported by the opinion in the case of Campbell v. Powers, 139 Ill. 128.

Under the facts shown here, can it be said that the trial court had jurisdiction?

The statute provides in paragraph 220 of chapter 37, B. S., entitled “Courts,” that probate courts shall have original jurisdiction in all matters of probate, the settlement of estates of deceased persons, the appointment of guardians and conservators, and settlements of their accounts.

The will of the deceased, John Warner, was probated in the Probate Court of DeWitt County, and appellant qualified as executor, filed an inventory of the assets of the estate and made partial reports of his actings and doings as such executor, in that court.

We have a provision of the statute whereby, under certain circumstances, the probate court may certify the estates of deceased persons, or the report of the administrator or executor, or guardian, to the circuit court but this case does not come within that category.

Under our Chancery Practice Act, our courts of chancery are open, under certain circumstances by a proper proceeding, to deal with wills, estates, trusts and proceedings of that character, hut in all such cases, so far as we have been able to find, the suit must he commenced by a bill in chancery, setting forth sufficient facts, and naming persons who are called upon as defendants, and concluding with a prayer for relief and summons. But this proceeding does not fall within that class.

It is urged by appellant that the appellees, having filed objections special to the jurisdiction of the court, and others as to items shown in the report, and having been given notice of the filing of the report, they thereby conferred jurisdiction over their persons upon the court.

The rule is well established that a defendant who appears and pleads without limiting his appearance, gives the court jurisdiction over his person. That however is not the question here involved. The question here is, can an executor, who is a testamentary trustee, after proceeding for years with the administration of the estate, of his own motion, whether moved by good or ill motives, by simply filing a report as such trustee on the chancery side of the circuit court, without assigning any reason, or bringing himself within any of the provisions of the statute, and without observing any of the statutory requirements of pleadings, confer jurisdiction upon the circuit court, and then compel it to pass on his acts and doings as such trustee? If such be the law, it would tend to work great confusion, sometimes great hardship, and leave the way open for great wrong to be perpetrated upon estates, when administered by dishonest officers.

We are unable to agree with the contention of appellant.

We do not think the circuit court acquired jurisdiction of the subject-matter.

The action of the trial court was correct, and it is. hereby affirmed.

Affirmed.


text:
    The People for use of County of De Witt, Appellee, v. Joseph T. Maddox, Appellant.
    1. Evidence—where witness may use writing to refresh recollection. In an action by a county against a public officer for money retained as commissions, a deputy who kept the books is properly permitted to testify from’ a memoranda where he recognizes the figures as his own and states that it was a correct copy of the books when made and that he does not know where the original is though he has made a careful search for it.
    2. Evidence—directing a verdict. In an action by the county against its treasurer for fees which under the. law should not have been withheld, there being no legal evidence for the defense, it is not error to direct a verdict for plaintiff.
    3. Counties—county cannot collect from treasurer more than he is entitled to collect. In an action by the county against its treasurer for commissions received from a drainage district, it cannot recover more than the treasurer was entitled to collect. ,

      4. Interest—when not awarded. In an action by the county against its treasurer for commissions from drainage districts, where the parties have not held back the funds wilfully but have honestly sought to have their legal rights determined, interest is not charged in determining the judgment. Certiorari denied by Supreme Court (making opinion final).
    Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.
    John Fuller and Herrick & Herrick, for appellant.
    Lemon & Lemon and Edward J. Sweeney, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This case was before us at a former term, and the opinion therein contains a full statement and history of the case. The cause was remanded to the circuit court for error found in the record, and was again tried by the said court and a judgment rendered •against the appellant in the sum of $800,000 in debt, and $1,825 in damages. Thereupon appellant prayed and was granted an appeal, and by this appeal the record is again brought before us.

Many errors are assigned as ground for reversal of the judgment. The most important, however, are those relating to the questions of fact, the action of the trial court in admitting evidence and in granting, at the close of all of the evidence, a peremptory instruction directing a verdict in favor of the appellee county.

Upon the trial of the case, it is complained, the court erred in admitting statements of the principal witness William Price, and particularly as to the admissibility of his evidence relating to exhibits 12 and 12% and to their introduction in evidence. The reeord discloses the fact that the witness William Price was the deputy treasurer and clerk of the appellant during his entire term in office, and that a part of his duties were to collect and keep a book account of the taxes and special assessments of the several drainage districts mentioned in this proceeding, and that as such officer he did collect and enter in the book all taxes, and special assessments as they became due and were paid, which book was furnished by the drainage commissioners, and also made reports to the drainage commissioners from time to time, setting out at length the receipts and disbursements, and in each instance making charges and taking credits for appellant, and as an item of credit in favor of appellant, two per cent, was charged against each respective district on the amount collected, as commissions; that each entry in the book was correct; that the book was in court at the former trial and that he had not seen it since then; that he had made diligent search for the book and was unable to find it. The witness was then presented with a memoranda which he identified as having been made by him at the request of someone connected with the case, which said memoranda was marked as “Plaintiff’s Exhibit 12.” The witness said that he recognized the writing and figures appearing upon the memoranda as having been made by himself, and that it was a correct copy of the book; that he knew it was correct when he made it; that he made and either gave or mailed annual reports to the said drainage commissioners; that the items in the reports were taken from the book and were correct; that he could not state from memory the items of the commissions retained by appellant, but that altogether they amounted to around the sum of $1,700, being a little more than that sum, but the odd dollars he could not remember. The memoranda marked “Plaintiff’s Exhibit 12” is in the words and figures following:

“’03 & ’04 ................ 351.71
05 ........................ >? 342.86
06 ........................ 26.20
1905 Latteral .............. 238.34
1906 Latteral .............. 705.98
’05-’06 Clintonia........... 211.45
1776.54
Nov. 7, ’06 Nov 20/06”

We have carefully compared this memoranda with the reports, figures and evidence in the record, and find it to be strongly supported. The only variance that we are able to find is a difference of six cents in the amount opposite “05 Regular,” which appears to be entered on one of the other instruments at $342.80, when it should be $342.86. This is most likely an error in transcribing, but is too small a matter to be worthy of consideration and in our calculations will consider it as given above.

The rule as to permitting a witness to assist his recollection by a memoranda, is laid down in Green-leaf on Evidence, vol. 1, sec. 437, and is as follows:

“Where the witness recollects having seen the writing before, and although he has now no independent recollection of the facts mentioned in it, yet he remembers that at the time he saw it he knew its contents to be correct,” then, it would seem,'he might use the memoranda to assist his recollection.

In Diamond Glue Co. v. Wietzychowski, 227 Ill. 338, the rule is announced, as follows: “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 afterward that he had a perfect recollection of them.” And in O. S. Richardson Fueling Co. v. Seymour, 235 Ill. 319, the court held as follows: In an action to recover the price of coal delivered to a steamer the delivery receipts for which had been turned over to counsel for defendants and lost, the tug boat captain who delivered the coal was permitted to read from a book the entries showing dates and amounts of the deliveries, where he testified that the entries were made by him at the time of the delivery and that he knows them to be true, though he had no independent recollection of the amount of coal, outside of what was shown on his book.

It is clear, from the authorities above cited, that the witness Price might properly have read from the memoranda made by him under the circumstances testified to by him.

Numerous objections were made to the witness Price being permitted to refresh his memory by reference to the memoranda during the course of his examination, but when the memoranda was marked “Plaintiff’s Exhibit 12” and offered and received in evidence, at the close of the evidence of Mr. Price, we fail to find any objection offered thereto by the appellant. Whether this was an oversight we are unable to say. In order to receive the benefit of any error in that respect, it was necessary that an objection be made by appellant. Later in the trial, when Plaintiff’s Exhibit 12 and 12% were jointly offered in evidence, objection was made by appellant and overruled and exception noted. Exhibit 12 having been before that already received in evidence, without objection, to receive number 12 again, when coupled with number 12% could not prejudice appellant so far as number 12 was concerned. Exhibit 12% was a note of nine words in abbreviated form, which referred to the amount of drainage tax collected by appellant, the substance of which had been testified to orally by appellant and Mr. Price, and shown by reports made by appellant to the drainage commissioners. Under these circumstances, even conceding that Exhibit 12% was erroneously admitted, we are at a loss to see how appellant was prejudiced thereby.

Upon this trial the appellant took the witness stand and among other things testified that his salary had been fixed by the board of supervisors at $1,500 and his deputy hire at four hundred dollars and that both had been paid; that he had never turned over any of the commissions for collecting the drainage taxes, to the county, and that the amount of commissions received by him in the four years amounted to “about $1,700” or “maybe a little better than that;” that his deputy, Mr. Price, kept the books and made the reports to the drainage commissioners. All of the reports made to the drainage commissioners appear in the record in this case, except one. These reports accurately support the testimony of Mr. Price. It will also be remembered that Mr. Price and appellant, in their statements of the total amount of collections for commissions, placed the amount at about $1,700 or around that sum, a sum only slightly below the amount fixed in the judgment.

Under the law it was the duty of the treasurer to turn over to the appellee county all fees earned and collected in excess of his salary and deputy hire.

In our view the appellee should recover in this case, and a peremptory instruction to the jury in favor of the appellee was proper, because no legal evidence that could be considered as a defense was offered.

The question of the amount of the judgment is the only just cause of complaint in this record.

We make up the account as follows:

Total amount of commissions received by appellant, ........................... $1,776.48

Overcharge in' fees in lateral district for 1906 ................................" 205.98

Leaving a balance due appellee of......$1,570.50

And for this sum a judgment should have been entered.

It will be seen that in making up this account we have eliminated $205.98. That amount being in excess of the fees provided by paragraph 148 of chapter 42 of Hurd’s Revised Statute of 1911, regulating the amount that treasurers may receive from drainage districts as compensation, and fixing the sum at not exceeding five hundred dollars for any one drainage district for any one year. In the item of $705.98, reported as fees or commissions from taxes collected for one lateral district for the year 1906, being above the sum of five hundred dollars we have deducted the excess of $205.98, as the county, appellee, was not entitled to judgment for it.

In this character of proceeding, where the parties have not held back the funds wilfully but have honestly sought to have their legal rights determined, interest should not be charged, and for that reason we have eliminated the item of $48.52, interest, in our statement.

.The judgment being excessive to the amount of $254.50, it will be affirmed at the cost of appellee on remittitur of that sum within ten days, otherwise it will be reversed and remanded because the judgment is for an excessive sum.

Reversed and remanded.