text:
    Sotir Simonoff for use of Illio Simonoff, Plaintiff in Error, v. Granite City National Bank, Defendant in Error.
    1. Bills and notes—What is effect of Negotiable Instruments Act on questions of acceptance and payment. The law as codified in the Negotiable Instruments Act, sec. 61, in 1907 (J. & A. 1[ 7700), governing the questions of acceptance and payment of bills of exchange, is practically the same as was the law in this State prior to that codification.
    2. Bills and notes, § 7

      —when instrument is foreign bill of exchange. Whether or not an instrument is a bill of exchange, so called, or a check depends on its character rather than what it may be designated on its face, and where an instrument was drawn by a domestic bank upon a bank in Prance, for payment by the latter bank of a certain sum to a certain payee named therein, held that such instrument was a foreign bill of exchange.
    3. Bills and notes, § 271*—necessity of presentment for pay-

      merit to drawee to charge drawer. Whether an instrument be a bill of exchange or a check, under the Negotiable Instruments Act, sec. 185 (J. & A. If 7825), such instrument must be presented for payment to the drawee thereon before the payee can recover against the drawer thereof, or he must show some valid reason why he did not present such instrument and that his failure to present same has caused no damage to the drawer.
    4. Bills and notes, § 271

      —what is not available as defense for failure to present foreign bill for payment. The fact that the country to which the payee of a bill of exchange belpngs was in war and that the payee was drafted in the army is not a sufficient reason for failure of said payee to present such bill of exchange to the drawee thereon for payment, as provided by the Negotiable Instruments Act (J. & A. Tf 7640 et seq.), to enable such payee to recover against the drawer of such bill of exchange.
    5. Assumpsit, action of, § 72*—when special count necessary. Recovery by the payee of a bill of exchange against the drawer thereof upon the theory that it was not necessary for such payee to present such bill of exchange to the drawee thereon for payment can only be had under a special count alleging the reasons for failure to present such bill of exchange to such drawee, as under the common counts evidence on this theory would not be proper.
    6. Appeal and erbob, § 1455*—when improper sustaining of demurrer to special count is harmless error. Where a special count filed by the payee of a bill of exchange against the drawer thereof alleged that it was known to said drawer that said payee had failed to present said bill of exchange to the drawee thereon for payment, and that so knowing said drawer promised said payee to pay him the amount of said bill of exchange, held that no injury was caused such payee by the ruling of the court sustaining a demurrer to said count for the reason that the evidence wholly failed to support the allegations of said count.
    7. Bills and notes, § 271*—when’bank may not be compelled to take up bill of exchange issued by it. The law does not compel a bank to take up a bill of exchange issued by it except on the terms provided by the statute, and where said terms were not complied with and no sufficient reason was shown for failing to comply therewith, such bank should not be compelled to take up such bill of exchange at a depreciated value and thereby suffer a loss.
    Error to the Circuit Court of Madison county; the Hon. Louis Bernbeuter, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed.
    Opinion filed November 13, 1916.

      M. R. Sullivan and Morgan Le Masters, for plaintiff in error.
    Edward J. Vaughn, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section ptimber.

      See Illinois Notes Digest, Vois. XI to XYt and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

An action in assumpsit was brought by plaintiff in error for the use of Illio Simonoff, his brother, against the Granite City National Bank, defendant in error, at the October term, 1915, of the Circuit Court of Madison county, to recover the value of 7,700 francs according to the rate of exchange on July 18, 1914.

The declaration as originally filed consisted of the common counts and a special count, which special count was afterwards withdrawn by plaintiff in error. Thereafter on the trial of said cause had by the court, the jury being waived, a special count was filed by leave of court. A demurrer was sustained to said special count, thereby leaving only the common counts, to which there had been filed the plea of the general issue.

The court found the issues in favor of plaintiff in error, and rendered judgment against defendant in error for $1,378.30, from said judgment plaintiff in error prosecutes this writ of error, cross errors being also assigned by defendant in error.

On May 16, 1914, the Simonoffs purchased at defendant in error’s bank at Granite City, Illinois, three checks or bills of exchange on Paris, for 4,000, 2,000 and 1,700 francs respectively, making a total of 7,700 francs. Illio Simonoff, the beneficial plaintiff, paid for these three bills of exchange $1,507.22, and on his direction said bills of exchange were-made payable to Sotir Simonoff, who was about to depart for his home country in Macedonia.

The evidence further discloses that on the arrival of plaintiff in error in Macedonia he was drafted into the military service of his country, and thereafter gave said hills of exchange to one Theodore Illoff, who was about to leave that country for Granite City, Illinois, with directions to deliver the same to Illio Simonoff, the beneficial plaintiff. The checks were delivered by Illoff to the beneficial plaintiff about July 14, 1914. Said bills of exchange had never been indorsed by plaintiff in error and had never by him or any one else been presented to the bank at Paris, on which said bills of exchange were drawn, for payment.

The record further discloses that when said bills of exchange were purchased, defendant in error’s bank advised its New York correspondent, the Hoover National Bank, of the issue of said bills of exchange, with, direction to said bank to protect the same with the drawee bank in Paris, and credit was given by the defendant in error to the Hoover National Bank for the amount received for said bills of exchange, less some $12 charged for issuing the same.

The record also discloses that on July 18,1914, being some two or three days after said bills of exchange were delivered to the beneficial plaintiff by the witness Illoff, he, said beneficial plaintiff, applied to defendant in error bank to have returned to him the money which he had paid therefor. This the defendant in error did not do. The evidence is conflicting as to just what transpired between the beneficial plaintiff end the officers of the defendant in error bank. The fair preponderance of the evidence tends to prove that the beneficial plaintiff was insisting on defendant in error taking up said bills of exchange and returning to him the full amount he had paid when said bills of exchange were purchased.

Bequests for a return of the money paid by him for said bills of exchange were made by the beneficial plaintiff from time to time, covering a period of- from July, 1914, to September, 1915. The beneficial plaintiff testified that on one occasion in the year 1914 he applied to defendant in error for a return of the money which he had paid for the bills of exchange, and that he was told by one of the officers of the bank that he should come back in six or seven months and get his. money, and on another occasion that they would have to write to New York and that when the officers of the bank could hear from New York they would return him his money. Plaintiff in error is corroborated to some extent by witnesses who accompanied him, as to these conversations. On the other hand, the officers of the bank testified that they never agreed to ¡return to the beneficial plaintiff the money which he had paid for said bills of exchange, but that they agreed to take the same up at their then valuation, but that the beneficial plaintiff was not willing to dispose of them on that basis.

The evidence further discloses that on account of the European war, Paris exchange dropped several points, and that at the time of the trial the 7,700 francs for which $1,507.22 had been paid were worth only $1,378.30, the amount for which the trial court gave judgment.

The principal ground relied on by plaintiff in error for a reversal of the judgment in this case is that the trial court erred in not rendering judgment in his favor for the value of the three bills of exchange computed at the rate of exchange on July 18, 1914, with interest thereon from that date to the date of the trial, instead of rendering judgment for the value of said bills of exchange on the date of the trial, as was done by the trial court. On the part of defendant in error, it is urged that the court erred in rendering judgment against it.

We will take up the proposition made by defendant in error first, for if it is right in its contention, on the pleas as they now stand, plaintiff in error must show his right of recovery on the common counts, as both of the special counts are out of the case, the first being voluntarily withdrawn and a demurrer having been sustained to the second. It is necessary, therefore, to determine the rights of the legal plaintiff, the payee, in said bills of exchange against defendant in error, the drawer thereof.

Under the provisions of section 61 of the Negotiable Instruments Act (J. & A. ¶ 7700), the defendant in error, as the drawer of the bills of exchange in question, undertakes that said bills of exchange will be accepted and paid by the drawee bank in Paris, and if not so accepted and paid and the necessary proceedings of dishonor be taken, defendant in error as the drawer of the said bills of exchange will be compelled to pay the amount thereof to plaintiff in error, the payee thereof.

No contention is made by plaintiff in error that he has complied with the provisions of said statute. It is, however, insisted by him that this is not necessary, and that he has a right, notwithstanding the provision of the statute, to demand and enforce payment against defendant in error without having presented said bills of exchange for payment as provided by statute. The law as codified governing this question is practically the same as was the law in this State prior to the codification, made in 1907. Montelius v. Charles, 76 Ill. 303; Industrial Bank of Chicago v. Bowes, 165 Ill. 70.

In Montelius v. Charles, supra, at page 306, the court says: ‘1 The law is settled, by an unbroken line of decisions, that all drafts, whether foreign or inland bills, must be presented to the drawee within a reasonable time, and in case of nonpayment, notice must be given promptly to the drawer, to charge him.” In Industrial Bank of Chicago v. Bowes, supra, at page 75, the court says: “The general rule is, that the holder, in order to charge the drawer in case of dishonor, is bound to present the check for payment within a reasonable time, and give notice to the drawer within a like reasonable time, otherwise the delay will be at his own peril.”

A distinction is sought to be drawn by plaintiff in error between bills of exchange and checks, and in some parts of his argument he seems to contend that the instruments in question were checks rather than foreign bills of exchange. Whether or not an instrument is a bill of exchange, so called, or a check, depends on its character rather than on what it may be designated on its face. In our opinion the instruments in question are unquestionably foreign bills of exchange.

If, however, it should be conceded that plaintiff in error is correct in his conclusion that the instruments in question are checks instead of bills of exchange, it would not affect the rights of the parties on the record in this case.

Section 185 of the Negotiable Instruments Act (J. & A. ¶ 7825) provides: “A check must be presented for payment within a reasonable time after issuance, and notice of dishonor given to the drawer as provided for in bills of exchange or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.” So, on the theory of plaintiff in error that the instruments in question were checks, rather than bills of exchange, he would still under the law be required to present the instruments for payment to the drawee thereon before he can recover against the drawer of such checks, or he must show some valid reason why he did not present said checks, and that his failure to present the same has caused no damage to the drawer.

This proof has not been made. The only reason assigned by plaintiff in error as to why he did not present said bills of exchange to the drawee for payment is that his country was in war and he was drafted in the army. This, however, is not a sufficient reason under the evidence in this case for the failure of plaintiff in error to present said instruments for payment as provided by statute. Then, too, for plaintiff in error to recover on the theory that it was not necessary for him to present said bills of exchange to the drawee for payment, he must do so under a special count, alleging the reasons for such failure, as under the common counts evidence on this theory would not be proper.

It is next contended by plaintiff in error that the court erred in sustaining a demurrer to the special count filed by him by leave of court on the trial of said cause. Said special count alleges that it was known to defendant in error that plaintiff in error had failed to present said bills of exchange for payment in Paris, and that knowing the same, defendant in error promised plaintiff in error to pay him the amount of said checks. No injury was caused plaintiff in error by the ruling of the court on the demurrer in question for the reason that the evidence in the case, we think, wholly fails to support the allegations of said special count of said declaration. The beneficial plaintiff testified that on July 18,1914, when he received the bills of exchange from Theodore Illoff, who brought them to him from his brother Sotir Simonoff, that he went to deféndant in error’s bank and requested a return of his money, and that the witness Meditch, who was in charge of the foreign exchange department of the defendant’s bank, said to him to come back in six or seven months and get his money. The beneficial plaintiff testified that the next time he called at defendant’s bank he took with him the witness George Gliroff, this being some seven or eight days subsequent to the visit he made on July 18,1914, and that at that time the witness Meditch said to him that they were willing to pay after the time has come. “The time has not come yet, when the time comes, come get your money.” According to the testimony the beneficial plaintiff did not return to the bank after that time until the spring or summer of 1915.

Referring now to the testimony of George Gliroff, who the beneficial plaintiff testified accompanied him to defendant in error’s bank the second time he went there after he received the bills of exchange from Theodore Illoff. This witness testified that the beneficial plaintiff gave the checks to some clerk and talked with the witness Meditch; that Meditch, referred to by this witness as “Jim,” said for Illio Simonoff, the beneficial plaintiff, “to wait a couple of days, come back after a couple of days and get your money. Jim told Louis to come back after a few days to get his money, and I then left Louis.” According, therefore, to the testimony of Gliroff, who acted as interpreter for the beneficial plaintiff, the witness Meditch, who was in charge of the foreign exchange of defendant in error’s bank, said to plaintiff in error that if he would come back in two days, or a few days, he could get his money. This testimony is corroborative of the testimony of the witness Meditch, who stated: “I told bim (referring to the beneficial plaintiff) we might redeem them (the bills of exchange) as an accommodation to him, not that we were legally obligated to, but he must wait two days. I must get the rate cards from New York, we had no cards.”

The record further discloses that after this conversation the beneficial plaintiff did not apply again to the defendant in error or its officers to take up the bills of exchange in question. We are therefore conclusively drawn to the conclusion that at no time did the defendant in error or its officers agree to pay plaintiff in error or the beneficial plaintiff the amount paid for said bills of exchange, or to do other than to take them up at the'current rate of exchange. This conclusion is in keeping with the ordinary rules of banking and the commercial world. No bank with safety could undertake to sell foreign exchange at the current rate on the day the sale was made and thereafter be compelled to take up said bills of exchange, should the holder thereof conclude not to present the same for payment, at the same rate sold at, without reference to whether or not said rate of exchange had fluctuated. The law, however, does not compel a bank to take up a bill of exchange issued by it except on the terms provided by the statute, that is, where the bill of exchange has been presented for payment, payment has been refused, and notice of dishonor has been given as provided by law. Plaintiff in error has not brought himself within this rule. Plaintiff in error as the holder and payee of said bills of exchange, so far as the record discloses, may at any time present the same for payment at the drawee bank in Paris, where it will be paid- according to its terms, or he can dispose of the same in the commercial market at the current rates of exchange. There is no good reason either in law or good conscience why defendant in error should be compelled to take up said bills of exchange at their depreciated value and thereby suffer a loss as it would have to do if so required.

The judgment of the trial court will be reversed, and as our holding is that no recovery can be had in this action, the cause will not be remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    James Monk, Appellant, v. Caseyville Railway Company, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by James Monk, plaintiff, against the Casey-ville Railway Company, defendant, to recover damages alleged to have been caused by reason of an embankment constructed and maintained across lands of plaintiff without having sufficient openings through such embankment to allow the water coming from such lands to properly drain off.
    Plaintiff owned thirty-seven acres of land known as the American Bottoms in St. Clair county, and it was through this tract of land that defendant constructed its railroad and built the embankment complained of by plaintiff. This land frequently overflowed. Plaintiff himself testified: “There is a lake or natural stream that flows through my land. It flows from Lansdowne through my land into the big lake. This embankment of the defendant railway company is built across that lake and they did not leave opening enough. They only put in a 36-inch pipe, and a 36-inch pipe will not drain a lake 200 feet wide and 8 or 9 feet deep.” Defendant’s railroad cut plaintiff’s tract of land into two parts, one part lying on the north side of the track and the other on the south. The contention of plaintiff was that his crops were damaged on account of the water overflowing his land and that this condition obtained on both sides of the embankment. The land owned by plaintiff through which defendant’s railroad was constructed was practically flat, and the land had very little fall.
    The second instruction was with reference to the credibility of witnesses and the weight to be given to their testimony. This instruction concluded by instructing the jury that if it appeared that any witness had knowingly or wilfully testified falsely to any material fact, the jury had the right to disregard the testimony of such witness, except in so far as it was corroborated by other credible testimony or by facts and circumstances proven on the trial.
    The third instruction was to the effect that if the jury believed from the evidence that the lands of plaintiff had, prior to the construction of the embankment by the defendant, been subject to overflow, and if they believed the crops of plaintiff to have been injured and destroyed in the same manner and to as great an extent before as after the embankment had been constructed by defendant, they should find the defendant not guilty.
    Defendant’s fifth instruction was as follows: “The court instructs the jury that the plaintiff is seeking to recover in this suit for damages caused by the surface water being obstructed or interfered with by the embankment of the defendant; that even though you may believe from the evidence that said embankment did interfere with water coming upon the land of the plaintiff, and even though you may believe that because thereof plaintiff was so injured, yet, unless you may believe further from the evidence that the said water was surface water, your verdict should .be for the defendant.”
    Defendant’s sixth instruction was as follows: “The court instructs you that the defendant corporation is a railroad corporation, acting under legal authority and power to construct, maintain and operate its railway over and upon the lands in question; that in the construction, operation and maintenance of its railway and embankments it is not a guarantor that its railway and embankments will be so constructed as to carry off or permit the carrying off of all the surface waters which might occur at times of such extraordinary and exceptional rainfall as has never occurred before, or such extraordinary or exceptional rainfalls, which, though they have occurred, may not reasonably be expected to recur."
    M. Millard and O. W. Wiedemann, for appellant.
    A. H. Baer, for appellee.
    Abstract of the Decision.
    1. Railroads, § 350

      —when evidence is sufficient to show that construction of embankment over stream is not cause of overflow. In an action for damages against a railroad company for overflowing of lands, claimed to have been due to a railroad embankment, constructed through said lands, where the evidence showed the embankment was built across a lake or natural stream eight or nine feet deep with a 36-inch pipe running through the embankment, by reason of which the water sometimes stood higher on one side and sometimes higher on the other side, with quite a current through the pipe, and the lands of the plaintiff on either side of the embankment were practically flat with little fall, so that at times of heavy rainfall all of the lands in that locality were flooded, held that the jury were warranted in finding that the embankment did not cause the water to back on the plaintiff’s land, but that the overflow was on account of natural conditions.
    2. 'Instructions, § 96*—when not erroneous on right of jury to discredit testimony of witness testifying falsely. An instruction in effect that if the jury believe from the evidence that any witness has wilfully testified falsely to any material fact they may discredit his testimony except in so far as corroborated by other credible testimony or by the facts and circumstances appearing on the trial, held not erroneous.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vain. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number, •

   Mr. Justice Boggs

delivered the opinion of the court.

3. Railroads, § 352 —when instruction in action for damages for overflowing of land caused by embankment is not erroneous. In an action for damages for overflowing of lands claimed to have been due to a railroad embankment, where an instruction was given to the effect that if the jury believe from the evidence that tho plaintiff’s lands had, prior to the construction of said embankment by the defendant, been subject to overflow and the crops of plaintiff to have been injured and destroyed in the same manner and to as great an extent before as after the construction of said embankment, they should find the defendant not guilty, held said instruction was faulty in form but there was no error in giving same, as if the jury found from the evidence the matters stated in said instruction it would have been their duty to have found the defendant not guilty.

4. Appeal and error, § 1552*—when giving of ambiguous instruction is harmless error. Where an instruction is not clear in its statements and its meaning is somewhat ambiguous, but no particular error therein is' pointed out by counsel whereby such instruction could have injured the party against whom the verdict was rendered, and under the evidence the jury could not have been misled thereby to such party’s hurt, the giving of such an instruction is not ground for reversal.

5. Instructions, § 63*—when not erroneous as assuming facts. The giving of an instruction on behalf of a defendant to the effdct that the defendant was a railroad corporation and as such had the right and legal authority to construct its railroad across the land's of the plaintiff was not erroneous as assuming facts, where the plaintiff himself had testified that he had sold the right of way to the defendant for railway purposes.

6. Railroads, § 352*—when instruction as to nonliability of for overflow due to construction of embankment over stream is not seriously erroneous. An instruction given on behalf of a railroad company sued for damages for overflowing of the plaintiff’s lands, stating that “in the construction, operation and maintenance of its railway and embankments it is not a guarantor that its railway and embankments will be so constructed as to carry off or permit the carrying off of all the surface waters which might occur at times of such extraordinary and exceptional rainfall as,has never occurred before, or such extraordinary or exceptional rainfalls which, though they have occurred, may not reasonably be expected to recur,”" held not seriously erroneous.

7. Appeal and error, § 1752*—when judgment affirmed because of defective abstract. Where an abstract is tendered on an appeal which, wholly fails to comply with the rules laid down by the Appellate Court covering the preparation of abstracts, as when it fails to abstract the pleadings or refer to the same, and the index refers to the record alone and not to the abstract, affirmance of the judgment without consideration of the case on its merits is warranted.

8. Appeal and ebbob, § 1712 —what errors are waived. Errors assigned but not argued are taken as waived under the rules of court.


text:
    John Wendzenski, Appellee, v. Madison Coal Corporation and William Turton, Appellants.
    1. Mines and minerals, § 125

      —When judgment for plaintiff in action on common-law counts by employee against mine manager for personal injuries is erroneous. Where a miner, holding a certificate of competency from the State Board, brought action against his employer, who had rejected the Compensation Act, and his employer’s mine manager for damages for injuries due to an explosion caused by said miner trying to ram a cartridge which he had prepared into a hole bored by him, the tamping rod striking against sulphur, known both by him and by defendants to be in the vein of coal, or some hard substance, held that a judgment for the plaintiff could not be sustained under common-law counts against the mine manager as he was entitled to the defenses of contributory negligence, assumed risk and fellow-servant, and the evidence showed that plaintiff was not in the exercise of ordinary care for his own safety.
    2. Workmen’s Compensation Act, § 2

      —what is effect of refusal of employer to come under as to mine manager. While the election by an employer not to pay compensation under the Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, j[ 5475(1) et seg.] would take away from such employer the defenses of contributory negligence, assumed risk and fellow-servant, such election would not under that act have such effect as to the employer’s mine manager joined as a codefendant.
    3. Mines and minerals, § 125

      —when assumed risk and contributory negligence are not available as defenses. Where a count under the statute against an employer and his mine manager charged a wilful violation of the provisions of the mining statute with reference to the duties of such manager (J. & A. If 7494), held that the defenses of contributory negligence or assumed risk would not be available either to said employer, who had elected not to pay compensation under the Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, Ü 5475(1) et seq.], or to said mine manager.
    4. Mines and minerals, § 107

      —duty of mine manager to give special instructions with reference to placing and discharging of blasting shots. Paragraph 14, subd. (a), sec. 20 (J. & A. if 7494), of the Mining Statute, requiring a mine manager to give “special instructions concerning the storage and handling of explosives in the mine,” should not he limited to other storage and handling than in charging and blasting, but should he held to be broad enough to cover special instructions with reference to the placing and discharging of the blasting shots.
    5. Mines and minerals, § 107

      —when mine manager is not relieved from duty to give special instructions concerning storage and handling of explosives. The fact that a miner has a certificate of competency from the State Board does not relieve the mine manager from his duty under the mining statute to give to such miner special instructions concerning the storage and handling of explosives in the mine, where such' manager has knowledge that such miner is inexperienced in the handling of explosives and placing and blasting of shots in the mine.
    6. Mines and minerals, § 173

      —when evidence sufficient to sustain verdict for plaintiff in action by miner against employer and manager for injuries. Where, in an action by a miner against his employer and his employer’s mine manager for damages under section 20 of the Mining Act (J. & A. If 7494), because of injuries received while at work in the mine, the evidence tended to show that such miner; although holding a competency certificate from the State Board, was inexperienced in handling explosives and placing and firing of shots, and it was practically admitted by the defendants that said miner had received no instructions from them concerning such work, held that a verdict in favor of the plaintiff was not against the manifest weight of the evidence.
    7. Appeal and error, § 1666

      -—when question of joinder of defendants cannot be raised on appeal. After plea of the general issue and overruling of a demurrer raising the question of joinder of defendants, such question cannot be raised on appeal.

      8. Mutes and minerals, § 138

      —when mine manager may be joined with master as defendant in action for personal injuries. It is proper practice to join the servant with the master in an action by a miner against his employer and his employer’s mine manager lor damages for injuries while at work in the mine.
    9. Mines and minerals, § 45

      —when mine manager liable for violation of provisions of mining act. The Mining Act, sec. 29 (J. & A. If 7503), gives a right of action for violation of its provisions against the mine manager as well as against the mine operator.
    10. Instructions, § 38

      —when giving in language of statute is not error. Where an instruction was in the language of the statute and was applicable to the facts in the case, the giving of same was not error.
    11. Mines and minerals, § 191

      —when instruction in action by miner against owner and mine manager for personal injuries is not erroneous. Where an instruction in an action for damages for personal injuries by a miner against his employer and his employer’s mine manager was, in effect, that even though plaintiff had a certificate of competency from the State Board, such certificate would not relieve defendants from the duties imposed on them by law, held that said instruction laid down a correct principle of law and was applicable to the facts in the case, and the court did not err in giving same.
    12. Mines and minerals, § 188

      —when instruction in action by miner against owner and mine manager for personal injuries is not erroneous as directing a verdict. Where, in an action for damages for personal injuries by a miner against his employer and his employer’s mine manager, an instruction was given, in effect, that “if plaintiff had proven his case as alleged in the declaration that the mere fact of his having a miner’s certificate of competency would not prevent him from recovering in his said suit,” held that such instruction did not direct a verdict and the court did not err in giving same. -
    13. Judgment, § 203

      —when judgment based on good count should be sustained. A verdict and judgment should be sustained if there is one good count supported by the evidence, although other counts in the declaration may not be good or may not be supported by the evidence.
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.

      Burton & Burton, for appellants; John G. Brennan, of counsel.
    William M. P. Smith and Terry, G-ueltig & Powell, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topiu and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

This is an appeal prosecuted from a judgment of $15,000 rendered in the Circuit Court of Madison county, Becember 15, 1915, in favor of John Wendzenski, a coal miner, against the Madison Coal Corporation and William Turton, its mine manager. An amended declaration was filed by appellee consisting of three counts. The first count charged, in substance, that appellee was employed by appellant coal company as a coal miner; that part of his duties as such miner consisted of drilling and preparing holes to be charged with explosives and in handling explosives and placing such explosives in such holes preparatory to shooting down coal; that, contrary to the statute, said company, by its mine manag’er and assistant mine manager, wilfully failed to instruct appellee concerning the handling of explosives, which appellee was required to handle in blasting down the coal; that on account of the failure to so instruct appellee, appellee not realizing the danger, attempted to tamp a cartridge into place, and in doing so forced the tamping rod against a piece of sulphur or impurity in the coal, thereby causing an explosion which resulted in, the loss of the sight of both eyes and otherwise caused appellee to be permanently scarred and disfigured.

The second count is a common-law count and charges that appellee was a foreigner unacquainted with the English language and inexperienced in the use of powder for blasting purposes, and that he was not properly instructed in the handling of powder as an explosive and in placing explosives preparatory to shooting down coal, which facts were known to appellants, or by the exercise of due care could have been known, etc.

The third count is also a common-law count and charges the violation of duty to appellee in failing to instruct him regarding the danger of tamping powder cartridges or loose powder into a hole, the side of which was partly composed of. sulphur or hard matter found in the coal seam in said mine. A general and special demurrer filed to said amended declaration was overruled and thereupon appellants entered a plea of not guilty.

Prior to pleading, appellants caused said proceeding to be removed to the United States District Court -for the Southern District of Illinois. Said court held it had no jurisdiction of said cause for the reason that certain of the defendants thereto were residents of this State and remanded the same to the Circuit Court of Madison county. A trial was had in said Circuit Court, resulting in a verdict and judgment against appellants, as above set forth. Before the verdict was returned, said suit was dismissed as to defendant Anderson, assistant mine manager.

The evidence discloses that appellee was bom in Poland; that he was some thirty-four years of age, and that his occupation had been that of a miner, and that he had worked for some two or three years in coal mines in Europe at the face, and had bored holes for firing shots, but had never fired such shots, as the evidence disclosed that in Europe, while the shots were prepared by coal miners, they were fired by regular shot firers.

The evidence further discloses that upon his arrival in the United States he came at once to Illinois where he obtainéd a certificate of competency as a practical miner from the State Examining Board. Shortly thereafter he was employed by appellant, the Madison Coal Corporation, and worked at the face of appellant’s mine, doing the work óf an ordinary coal miner until October 20, 1913, when he received his injury.

The evidence of appellee further tends to prove that he had no knowledge with reference to the handling of explosives or the preparing and firing of shots for the blasting down of coal as they were prepared and fired in appellant’s mine; that he received no instructions from the mine manager or assistant mine manager of appellant coal company, with reference to the handling of explosives, or with reference to the placing and firing of shots to blast down the coal, and that while trying to ram a cartridge which he had prepared into a hole hored by him, an explosion was caused by the tamping rod striking against sulphur or some hard substance, and by reason of such explosion appellee lost the sight of both eyes and was otherwise disfigured.

Appellee’s evidence is further to the effect that he did not know about said vein of coal containing sulphur, but that said fact was known to appellant coal company -and William Turton, its mine manager. There is no serious dispute with reference to these matters and no great conflict in the evidence in regard thereto, the contention of appellants being, that inasmuch as appellee was a certified miner, that appellants were under no duty to instruct him with reference to the handling of explosives in connection with the placing and firing of shots, as not more than two pounds of powder were used for any one blast in appellant coal corporation’s mine.

The evidence further discloses that the appellant, Madison Coal Corporation, had elected not to pay compensation under the Workmen’s Compensation Act.

The principal ground relied on by appellants for a reversal of this case is that no right of recovery against them is disclosed by the record, and that the court erred in refusing to give appellants’ peremptory instruction, directing the jury to find them not guilty.

There were three counts in the declaration. Two common-law counts and one statutory count. We are inclined to hold that this judgment cannot be sustained as to either of the common-law counts, for the reason that, as to those counts, appellant William Turton is entitled to his common-law defenses of contributory negligence, assumed risk and fellow-servant, as the evidence shows that appellee was not in the exercise of ordinary care for his own safety prior to and at the time he received his injury, and that in part, at least, appellee’s negligence contributed to his injury. That being true, a right of recovery is not shown against William Turton, the mine manager. While the election of the appellant, the Madison Coal Corporation, not to pay compensation under the Workmen’s Compensation Act would take away from it the defenses of contributory negligence, assumed risk and fellow-servant, its said election would not have that effect as to William Turton, its mine manager. Section 3, subd. (a) of the Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, ¶ 5475 (3)], provides as follows: “In any action to recover damages against an employer, engaged in any of the occupations, enterprises or businesses enumerated in paragraph (b) of this section, who shall elect not to provide and pay compensation to any employee, according to the provisions of this act, it shall not be a defense that: First, the employee assumed the risks of the employment; second, the injury or death'1 was caused in whole or in part by the negligence of a fellow-servant; or third, the injury or death was approximately caused by the contributory negligence of the employee.”

“Subd. (b). The provisions of paragraph (a) of this section shall only apply to an employer engaged in any of the following occupations,” etc.

The question to be determined then is whether or not, on the record in this case, the verdict and judgment can be sustained on the statutory count. A wilful violation of the provisions of the mining statute with reference to the duties of the mine manager being charged in said count, the defenses of contributory negligence or assumed risk would not be available either to appellant coal company, or to William Turton, its mine manager. Kellyville Coal Co. v. Strine, 217 Ill. 516; Davis v. Illinois Collieries Co., 232 Ill. 284; Peebles v. O’Gara Coal Co., 239 Ill. 370; Waschow v. Kelly Coal Co., 245 Ill. 516; Wilkerson v. Willis Coal & Mining Co., 158 Ill. App. 620.

The contention of appellants is that the provisions of the statute to the effect “that the mine manager shall give special attention to and instruction concerning the storage and handling of explosives in the mine” does not have reference to instructions to certified miners with reference to the time and manner of placing and discharging the blasting shots; that this provision with reference to instructions relative to the handling of explosives in the mine has to do with their storage and handling other than the handling by miners in charging and blasting the shots.

Subdivision (a) of section 20 of the Mining Statute, being section 20 of chapter 93, Hurd’s ¡Revised Statutes (J. & A. ^ 7494), contains fifteen paragraphs specifying what shall be the duty of the mine manager. Among them is paragraph 14 above quoted. Subdivision (b) of section 20 contains three paragraphs under the heading: “The mine manager shall have power,” paragraph 2 thereof being to the effect that the mine, manager shall have power “To prescribe special rules concerning the proper storage and handling of explosives in the mine and concerning the time and manner of placing and discharging the blasting shots, and it shall be unlawful for any miner to fire shots except according to such rules.” Appellants insist, in order to give meaning to the provisions of paragraph 2 of subdivision (b) of said section above referred to, that paragraph 14 of subdivision (a) should not be construed as having the effect of making it the duty of the mine manager to give special instructions to the miners with reference to the handling of explosives in connection with the placing and blasting of shots.

It will be observed that subdivision (a) provides what “shall be the duty of the mine manager.” Paragraph (b) provides certain powers that the mine manager shall have, among them are 1‘ To prescribe special rules concerning the proper storage and handling of explosives in the mine and concerning the time and manner of placing and discharging the blasting shots,” etc." In other words, paragraph 2 of subdivision (b) of said section 20 makes provision that the mine manager shall have power to prescribe certain rules with reference to the handling of explosives and blasting of shots, which rules when prescribed shall be followed, and making it unlawful for any miner to fire shots, except according to such rule. "We are, therefore, of the opinion that paragraph 14 of subdivision (a) of said section 20 should not be given the limited construction contended for by appellants, but that it should be held to be broad enough to cover special instructions with reference to the placing and discharging of the blasting shots, and this construction, we think, is supported by the Supreme Court in the case of Kulvie v. Bunsen Coal Co., 253 Ill. 386.

In the case cited, the declaration in said cause charged: “That Andrew Kulvie and his buddy, John Wuysik, were coal diggers in defendant’s employment; that the defendant wilfully failed to instruct them concerning the manner of discharging blasting shots in said mine, but ordered and directed them to discharge three certain shots at a place described, but, having wilfully failed to instruct said employees as to the manner of discharging said shots, they fired all three of them at the same time, as one blast, thereby causing an explosion of such force that a large quantity of coal was thrown to and upon Kulvie, instantly killing him.’’ At page 390, the court says: “The Act of 1909 provides that certificates shall be issued to applicants found qualified upon examination, and such certificate shall entitle the holder ‘to be employed as and do the work of miners. ’ The certificate is evidence that the holder possesses the qualifications ‘to do the work of miners, ’ but does not necessarily show that he possesses the practical experience required of a shot firer. Notwithstanding Kulvie’s certificate, there is proof in the record tending to show he did not possess such knowledge and experience. ’ ’ Again, at page 391, the court says: “The proof of defendant in error tended to establish the allegations of the declaration that Kulvie was a coal digger, not a shot firer. The trial court instructed the jury to find for plaintiff in error if fhey believed, from the evidence, deceased and Wuysik were shot firers at the time of the accident. Under the proof the court properly refused to direct a verdict, and rightly submitted to the jury the question whether defendant in error had proven, by a preponderance of the evidence, the allegations of her declaration that they were coal diggers.”

While the facts in the case of Kulvie v. Bunsen Coal Co., supra, are not the same as the facts in this case, at the same time the Supreme Court in construing the provisions of the mining statute relating to the duty of the mine manager with reference to giving instructions concerning the handling of explosives and the placing and blasting of shots is to the effect that unless a miner is a shot firer he is entitled to receive such instructions from the mine manager, where the evidence tends to show that he was not an experienced shot firer, and that the fact that the coal miner may have a certificate from the Mine Examining Board, does not relieve the mine manager from his duty to give instructions concerning the handling of explosives and the placing and blasting of shots in the mine, where the evidence tended to show said miner was inexperienced in reference thereto.

In the case of Bagaini v. Donk Bros. Coal & Coke Co., 199 Ill. App. 76, decided by this court on April 17, 1916, in passing on the question of the duties of the mine manager to give instructions concerning the handling of explosives, etc., this court said: “We are inclined to hold that it is a question of fact to be determined by the jury whether an experienced miner, who holds a certificate as such, under the provisions of the statute, but whose business is not that of an expert shot firer as contemplated by the statute, should be instructed by the mine manager with reference to the handling of explosives, and whether his failure to so instruct said miner is negligence.”

The evidence in this case tends to show that appellee was not experienced in the manner of handling explosives and the placing and firing of shots, and that this fact was brought to the knowledge of the mine manager. We therefore hold that the court did not err in refusing to direct a verdict in favor of appellants, as to the first count of appellee’s declaration.

It is next insisted by appellants that the verdict is against the manifest weight of the evidence. As we have heretofore said, the evidence tended to show that appellee was inexperienced with reference to the handling of explosives and the placing and firing of shots, and that he received no instructions with reference thereto from appellant coal company, or William Turton, its mine manager. In fact, it was insisted throughout the trial by appellants that they were not required to give such instructions where a miner held a certificate from the State Examining Board, and the question as to whether or not the failure to so instruct appellee was wilful or not is not a controverted one, for appellants practically admit that if it was their duty to so instruct him, they have failed to perform the same and did so knowingly. We therefore hold that the verdict of the jury was not against the manifest weight of the evidence.

It is urged by appellants that it was error to join William Turton, the mine manager, with appellant coal corporation. Appellants, having filed a plea of general issue after demurrer raising the question of joinder had been overruled, cannot now raise that question. In Peirce v. Walters, 164 Ill. 560, the Supreme Court at page 565 of the opinion says: “The question as to whether the engineer was properly joined with the receiver cannot now be raised, issue having been taken on the declaration so joining him.” This was a case where a railroad engineer was joined as party defendant with the receiver of said'road.

That it is a proper practice to join the servant with the master in an action on the case of.the character of this one is amply sustained by the Supreme Court of this State, especially where the servant is held to be a. vice principal, as it is with the mine manager. Republic Iron & Steel Co. v. Lee, 227 Ill. 246.

It is also insisted by appellants that there can be no recovery against William Turton, the mine manager, for the reason that the statute giving a right of action for a violation of a provision of the mining statute applies only to the mine operator and not to the mine manager, and in support of this contention they cite the case of Grannon v. Donk Bros. Coal & Coke Co., 259 Ill., page 350. We have examined this case and while the court, in effect, seems to hold that only the coal company operating the mine is liable under the provisions of said act, at the same time, that question was not before the court as the mine manager was not made a party defendant, and the final decision of the case was based on the common-law count of the declaration. The court made no holding with reference to the statutory count charging a wilful violation of the provisions of the statute, so the most that can be said with reference to the language in the opinion with reference to the liability under the provisions of section 29 of said statute (J.. & A. If 7503) is that it was a mere obiter dictum opinion, and not controlling in this case.

This court in the case of People v. Carter, 186 Ill. App. 453, held Carter, the mine manager, liable to the penalties provided in subdivision (a) of said section 29 of the Mining Statute for a wilful violation of the provisions of said act relating to the duties of a mine manager. It would, therefore, seem to follow that if the mine manager is liable criminally under the provisions of subdivision (a) of section 29 of said statute, he should also be held liable in a civil action for damages under provisions of subdivision (c) of said section, giving a civil right for damages to any one injured by a wilful violation of the provisions of the mining statute, relating to the duties of the mine manager.

It is next contended by appellants that the court erred in giving the third and fifth instructions given on behalf of appellee “for the reason that it was calculated to and evidently did mislead the jury.” The third instruction was in the language of the statute and was applicable to the facts in this case, and the court did not err in giving the same. The fifth instruction is to the effect that even though appellee had a certificate of competency issued to him by the miner’s examining board, that said certificate would not relieve appellants from the duties imposed upon them by law. This instruction, we think, lays down a correct principle of law, and was applicable to the facts in this case and the court did not err in giving the same.

It is also insisted that the court erred in giving the sixth instruction given on behalf of appellee, said instruction being to the effect “that if appellee had proven his case as alleged in the declaration that the mere fact of his having a miner’s certificate of competency would not-prevent him from recovering in his said suit.” It is insisted by appellants that this instruction is vitally defective for the reason it permits appellee to recover a verdict if he has proven his case as alleged in the declaration. We do not think the point well taken. This instruction does not direct a verdict and the court did not err in giving the same.

It is next insisted that the court erred in refusing five instructions tendered by appellants and which were refused by the court. The first refused instruction was, in effect, covered by the given instructions on behalf of appellants. No special criticism is made as to the court refusing to give the second, third and fourth of appellants’ refused instructions. It is insisted, however, that the court erred in refusing to give appellants’ fifth refused instruction. This instruction, after quoting parts of sections 19 and 20 of the mining statute, concludes as follows: “The court instructs the jury that the storage and handling mentioned in section 20 refers to the storage and handling of powder mentioned in section 19 (a) and (c).” We do not think the court erred in refusing this instruction for the reasons hereinbefore stated.

Twenty instructions were given on behalf of appellants, which, we think, presented their theory of the case to the jury in all its phases so far as warranted under the law.

It is not contended by appellants that the verdict is excessive. The injury suffered by appellee was a most serious one, being the loss of both eyes.

The evidence being sufficient to support the charge in the first count of appellee’s amended declaration, and it being the settled law of this State that one good count supported by the evidence will sustain a verdict and judgment, although other counts in the declaration may not be good, or may not be supported by the evidence, the judgment should be sustained. Eldorado Coal & Coke Co. v. Swan, 227 Ill. 586; Grannon v. Donk Bros. Coal & Coke Co., 259 Ill. 358.

Finding no reversible error in the record, the judgment will be affirmed.

Judgment affirmed.


text:
    Bone Gap Banking Company, Assignee, Appellee, v. George W. Porter et al. H. J. Strawn, Appellant.
    1. Bills and notes, § 462

      —when instruction in action hy holder on accommodation note is erroneous as assuming facts. Where an action was brought upon an accommodation note given to a copartnership bank and by its cashier indorsed in blank but not negotiated, and which had been turned over, after the bank had ceased to do business, by a majority of said bank’s stockholders and directors to an agent for collection, who delivered same to the plaintiff bank as collateral to a loan made by some of said stockholders and directors, and pleas putting in issue the consideration, assignment and delivery of said note were filed, held' that an instruction given on behalf of the plaintiff to the effect that the fact that said note was indorsed by one agent of the payee bank and “afterwards delivered by another agent of the bank would not make void such delivery; but such a delivery would be legal,” was erroneous, because delivery of the note was a disputed and litigated question in the case, and it was erroneous to assume that said agent for collection was an agent for the purpose of delivery of the note, and to instruct that such delivery would be legal.
    2. Bills and notes, § 462

      —when instruction in action 6y holder on accommodation note is erroneous as assuming facts. Where an action was brought upon an accommodation note given to a co-partnership bank and by its cashier indorsed in blank but not negotiated, and which had been turned over, after the bank had ceased to do business, by a majority of said bank’s stockholders and directors to an agent for collection, who delivered same to the plaintiff bank as collateral to a loan made by some of said stockholders and directors, and pleas were filed putting in issue the consideration, assignment and delivery of such note, held that an instruction to the effect that if the jury believed from the evidence that said note was indorsed in blank by the payee, “then the title to said note passed to the plaintiff by the delivery of the note without further indorsement,” was erroneous for the reason that said instruction assumed the title to the note passed to the plaintiff by delivery without reference to who delivered it or by whose authority it was delivered.
    3. Bills and notes, § 462

      —when instruction directing a verdict for plaintiff is erroneous. Where an action was brought upon an accommodation note given to a copartnership bank and by its cashier indorsed in blank but not negotiated, and which had been turned over, after the bank had ceased to do business, by a majority of said bank’s stockholders and directors to an agent for collection, who delivered same to the plaintiff bank as collateral to a loan made by some of said stockholders and directors, and pleas were filed putting in issue the consideration, assignment and delivery of such note, held that an instruction directing a verdict for the plaintiff unless the makers of said note should prove by a preponderance of the evidence that it was given without consideration was erroneous.
    4. Instructions, § 126

      —when should not be given. An instruction which is abstract in form though correct in its proposition of law should not be given where its tendency would be to mislead the jury.
    5. Banks and banking, § 42

      —what are powers of directors after bank ceases to do business. When a bank ceases to do a banking business, its directors are not authorized to transact a banking business or to borrow money and issue notes securing same for such bank, or to involve the credit of the other stockholders.
    6. Bills and notes, § 461

      —when refusal to direct verdict for defendant is not erroneous. Where an action was brought upon an accommodation note given to a copartnership bank and by its cashier indorsed in blank but not negotiated, and which had been turned over, after the bank had ceased to do business, by a majority of its stockholders and directors to an agent for collection, who delivered same to the plaintiff bank as collateral tó a loan made by some of said stockholders and directors, and pleas were filed putting in issue the consideration, assignment and delivery of such note, held that a peremptory instruction' for the defendants should have been given but for the fact there was some evidence in the record tending to show a ratification by the makers of said note of its purported delivery to the plaintiff and of the plaintiff’s right to enforce its collection, and hence a refusal of such instruction was not erroneous.
    7. Banks and banking, § 42

      —when agent for collection of bank’s assets has no power to pledge assets as collateral security. An agent for collection of a bank’s assets after it has ceased to do business has no authority to pledge such assets as collateral security to a loan made by third persons, even though they were stockholders of the bank.
    8. Bills and notes—when bank holding note as collateral security is not holder in due course for value. A note payable to order is negotiable only by the indorsement of the holder completed by delivery, and where such a note so indorsed, given as accommodation paper, was held by the payee bank and turned over as part of its assets after it had ceased to do business to an agent for collection, who delivered same as collateral security for a loan to third persons by another bank having full knowledge of , all the facts, held that such holder was not a holder in due course for value and could only recover on such note by showing that the makers thereof ratified the placing of the same as such collateral security, and had full knowledge of all the facts in connection therewith at the time said ratification took place.
    Appeal from the Circuit Court of Edwards county; the Hon. Jtjlius C. Kern, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    Julius O. Kern, for appellant.
    Allen E. Walker, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV. and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

The Bone Gap Banking Company recovered a judgment in the Circuit Court of Edwards county, Illinois, against George W. Porter, Flossie A. Porter, C. A. McClure, W. A. Morgan and H. J. Strawn, in the sum of $1,000, from which judgment a joint and several appeal was prayed by said defendants, but which appeal was perfected by H.' J. Strawn alone.

The declaration consists of the common counts and one special count. The special count charges that said above-named defendants executed and delivered to the Bone Gap Banking Company their promissory note in the sum of $1,000, dated March 3,1911, due six months after date, which said note was alleged to have been assigned for value to appellee by said payee and that the same had not been paid. To said declaration a plea of the general issue and several special pleas were filed.

The first special plea is sworn to and puts in issue the assignment of the said note, to appellee by said Bone Gap Bank; the second alleges that said note was given without consideration and that it passed into the possession of appellee, if at all, long after maturity; the third alleges that said note was given without consideration and as accommodation paper only, and also alleges, in substance, that said note passed into the possession of appellee without consideration and not in the regular course of business. The fifth special plea alleges, in effect, that the note in question was held-by the payee, the Bone Gap Bank, up to June 6, 1911, when it became insolvent; that at no time prior to its insolvency or since was said note negotiated by said Bone Gap Bank to appellee or to any one else. Beplications were filed to said special pleas and issue joined, a trial was had resulting in a verdict and judgment in favor of appellee as above set forth.

The Bone Gap Bank, a copartnership composed of sixteen members, ceased doing business on June 6, 1911. It had been a financial failure and from time to time certain of its stockholders rendered it financial assistance by executing accommodation notes to be by it negotiated to raise funds to be used in its banking business. On the next day after the Bone Gap Bank ceased doing business, appellee, as the Bone Gap Banking Company, opened a bank in the same room and has since been operating a bank at said place.

On March 3, 1911, the note in question was executed by the above-named defendants and was delivered to E. A. Morgan, the then cashier of the Bone Gap Bank. Morgan, who was also a stockholder in said bank, resigned as its cashier- on May 8, 1911, and one B. L. Mayne then became its cashier and so remained until it ceased doing business, on June 6, 1911. Mayne became the cashier, of appellee bank when it opened on June 7, 1911.

About June 2, 1911, certain of the directors and stockholders of said Bone Gap Bank, nine in number, realizing its failing condition, entered into a contract with one J. A. Turner for the closing up of said business. The substance of said contract is as follows:

“1st. That the said Bone Gap Bank shall turn over and deliver to said J. A. Turner all of its assets of every description, notes, bills and choses in action for the purpose of having the same collected and realized on as speedily as possible; that Turner was to have as compensation therefor, five per cent, of the amount collected or received by him.

“2nd. That as fast as said assets were collected the same should be used in paying the liabilities of said Bone Gap Bank.

“3rd. It was further provided that said business shall be closed up as speedily as practical and for said purpose of closing said business said Bone Gap Bank should retain its legal existence and when deemed expedient by Gould, Marriott and McClure, who were named as a committee for said purpose, the said Bone Gap Bank should institute suit for the collection of its notes, bills and claims. It was further provided that Turner might settle any of said notes, bills or claims by or without the consent of said committee.”

This contract was signed by Gould, Harms, Drury, Porter, McClure, Marriott, Rude, Gould and Morgan.

The evidence further discloses that E. A. Morgan, while acting as cashier of said Bone Gap Bank, indorsed the note in question in blank but made no attempt to negotiate it either to appellee or to any one else, and that said note remained with said Bone Gap Bank until after it ceased to do business, and passed into the possession of said Turner. In May, 1912, Turner attempted to make a loan from appellee on behalf of said Bone Gap Bank, but appellee refused to make said loan. Thereafter during said month of May, 1912, Ansel Gould, Charles Marriott, Jacob Harms, J. T. Drury and H. E. Rude, certain of the directors and stockholders of the Bone Gap Bank, borrowed $2,000 of appellee. This loan was negotiated by Turner for said parties, and in doing so Turner delivered to appellee, as collateral to said loan, the note in question. Thereafter, in December, 1912, these same parties borrowed of appellee $1,000, and the note in question was again delivered by Turner as collateral to said note. Appellee sought to collect the note in question from said defendants, and on their failure to pay the same this suit was instituted resulting in a judgment as above set forth.

The principal grounds relied on by- appellant for a reversal of this case are that the court erred in refusing to peremptorily instruct the jury to find the issues for appellant and the other of the defendants sued; second, that the court erred in its rulings on the giving and refusing of instructions; third, that the verdict of the jury is against the manifest weight of the evidence. The judgment in this case will have to be reversed by reason of the erroneous rulings of the trial court in the giving and refusing of instructions.

The fourth instruction given on behalf of appellee is as follows:

“The court instructs the jury that as a matter of law that the fact that the note in question in this case was indorsed by the Bone Gap Bank by one of its agents, and afterwards delivered by another agent of the bank would not make void such delivery; but such a delivery would be legal.”

This instruction is erroneous for the reason.that it assumes that Turner, who was appointed by nine of the sixteen stockholders of the Bone Gap Bank after its dissolution to collect its assets, etc., was an agent of the bank for the delivery of said note. This was a disputed and litigated question in the case, and it was error for the court to assume Turner’s agency for said purpose, and also to instruct the jury that the delivery of the note would be legal.

The fifth instruction is as follows:

“The jury are instructed that a note indorsed in blank specifies no indorsee, and a note so indorsed may be negotiated by mere delivery from one person to another ; and if you believe from the evidence in this case that the note in question was indorsed in blank by the payee, then the title to said note passed to the plaintiff by the delivery of the note without further indorsement. ’ ’

This instruction was erroneous for the reason that it assumes that the title to the note in question passed to appellee by delivery without reference to who delivered it or by what authority it was delivered.

The sixth instruction is as follows:

“The jury are instructed that the law implies that every promissory note that is made and delivered, was given for a good and valuable consideration; and in this case, the burden, is upon the defendant to prove by a preponderance of the evidence that the note in question was given without consideration, and unless they have done this the jury should find for the plaintiff.”

This instruction is erroneous for the reason that it directs a verdict for appellee unless the makers of said note should prove by a preponderance of the evidence •that the note was given without consideration, while the record in this case discloses that one of the material issues in the case was whether or not Turner, who was appointed by the nine stockholders to collect the assets of the bank, was authorized to deliver the note in question to appellee as collateral security for the notes given by G-ould, Drury, Marriott, Harms and Eude, above mentioned.

The eighth instruction is abstract in form, and while it states a correct proposition of law it should not have been given in this case as its tendency would be to mislead the jury. The other instructions given on behalf of appellee, we think, are without serious objection.

The second refused instruction offered by appellant and the other defendants in said cause in the trial court was to the effect that, when the Bone Gfap Bank ceased to do a banking business, the directors of said bank were not authorized to transact a banking business, or to borrow money and issue notes securing the same for said bank. This instruction we think states a correct principle of law and one applicable to the facts in this case and should have been given. Bank of Montreal v. Page, 98 Ill. 109. The court did not err in refusing the other of appellant’s refused instructions.

It is strenuously insisted by appellant that the trial court should have given the peremptory instruction offered by the defendants in the trial court directing the jury to find the issues in favor of said defendants. This assignment of error raises the question as to whether or not there was any evidence in the record fairly tending- to warrant a recovery in favor of appellee in this case. Were it not for the fact that there is "some evidence in the record tending to show a ratification by appellant and the other of the makers of the note in question, of the purported delivery of said note to appellee, and of its right to enforce collection thereon, this instruction should have been given, but, in the state of the record, we are unable to see that the failure of the court to give said peremptory instruction is error. In our view of this case, when the Bone Gap Bank ceased doing business as a bank on the evening of June 6, 1911, the authority of the bank officials to borrow money and to involve the credit of the other stockholders in said bank ceased, and there is no evidence in this record even tending to show that appellant and the other of the makers of said note authorized Turner to borrow any money from appellee or any one else for said Bone Gap Bank. Without such authority he could not bind them. Bank of Montreal v. Page, supra.

The contract entered into with- Turner, even if it had been signed by all of the stockholders of said Bone Gap Bank, is not broad enough in its terms to authorize Turner to borrow money for said bank.

The evidence in the record is to the effect that when Turner attempted to borrow money of appellee for the Bone Gap Bank, appellee, through its officers, refused to make any loan whatever to said bank, but did make two different loans to Gould and the other four persons-above named, and attempted to deliver to appellee the note sued on in this case as collateral security for said notes. We know of no rule of law giving Turner that authority. The loan was not made to the bank but to individuals. That being true, Turner certainly would not have authority to pledge the assets of the Bone Gap Bank as collateral for the note of third parties, even though they were stockholders of the bank. It will be further observed that under the evidence in this case appellee was not a holder of the note sued on in due course, as this1 note never was negotiated by the payee. While the evidence is to the effect that Morgan indorsed the name of the bank on said note as its cashier, he never delivered said note while he remained cashier, neither did Mayne, his successor, deliver the same during his term as cashier, which tenn lasted until the bank ceased doing business. Under the Negotiable Instrument Statute, a note payable to order is only negotiated by the indorsement of the holder completed by delivery. Section 48, ch. 98, Hurd’s Revised Statutes (J. & A. ft 7669).

Turner, who next came into possession of the assets of the Bone Gap Bank, had no authority to complete its negotiation by delivering the same as collateral security for the note of the above-named stockholders. We recognize the rule of law that holds liable the makers of accommodation paper in the hands of a holder in due course for value, even though said note passed into the hands of such holder after maturity, and with notice to the holder that it was accommodation paper. Diversy v. Loeb, 22 Ill. 394; Naef v. Potter, 226 Ill. 628; Peacock v. Phillips, 247 Ill. 474.

We are of the opinion, however, that this rule of law does not apply in this case, as appellee is not a holder in due course for value in this case. Appellee had notice that the note in question was part of the assets of the Bone Gap Bank, or was held by said bank as accommodation paper at the time said note came into its possession through Turner. Appellee also had notice that said bank had ceased doing business as a bank at said time, for appellee’s bank opened for business on the morning of June 7, 1911, in the same room occupied by the Bone Gap Bank when it ceased doing business on the evening of June 6, 1911, and Mayne, who was acting for the Bone Gap. Bank as its cashier when it ceased doing business, became the cashier of appellee’s bank when it opened for business on the next day.

We are therefore of the opinion that before appellee can show a right of recovery in this case, it must be able to show by the evidence that the makers of the note sued on ratified the placing of said note with appellee as collateral security for the note given by Anson Gould and the other four-named persons, having full knowledge of all the facts in connection therewith at the time said ratification took place.

For the errors referred to in this opinion the judgment of the trial court is reversed and the cause is remanded.

Reversed and remanded.


text:
    H. L. Angerer and Robert Abeles, Jr., Appellees, v. Southern Traction Company of Illinois et al., Appellants. John D. Vogt, Appellee, v. Southern Traction Company of Illinois et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. Geobsb A. Crow, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed November 13, 1916.
    Rehearing denied and opinion modified and refiled January 13, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Railroad lien proceeding "by H. L. Angerer and Robert Abeles, Jr., complainants, against Southern Traction Company of Illinois, Lorimer & Gallagher Company and Union Trust & Savings Bank of East St. Louis, Illinois, as trustee, defendants, to establish a lien against said traction company for ties alleged to have been furnished said Lorimer & G-allagher Company as general contractors for the construction of a line of railroad for said traction company, and claiming as due the sum of $26,485.84, and intervening petitions by John D. Vogt for a lien for work and labor performed by him in the construction of the right of way, and a lien as judgment creditor. From a decree of the Circuit Court confirming findings of a master to whom the case was referred and rendering a decree in accordance therewith, granting H. L. Angerer, for the use of Robert Abeles, Jr., a lien against said traction company for $33,282.80, and the intervening petitioner, Vogt, a lien for $9,487.99 for work and labor and as judgment creditor for $4,252.83, defendants appeal.

      Abstract of the Decision.
    1. Railroads, § 397

      —who are subcontractors entitled to lien. Where the owner of practically all of the stock and bonds of a railroad corporation, and who was acting as its general agent, entered into a contract with the company for the construction and equipment of its railroad whereby said company agreed to guarantee any contract entered into by him for the building of said road, and on the same day he entered into a contract with a construction company for the construction of a part of said road, and the railroad in an agreement with the latter guaranteed the faithful performance of the contract, which provided that the railroad company “makes itself directly liable” to the construction company and that the latter should “bear the relation and enjoy the rights of a contractor under and by virtue of the lien laws of the State of Illinois,” held that the construction company was a contractor and not a subcontractor, and that those with whom such company contracted for materials were subcontractors and entitled as such to maintain a lien.
    2. Appeal and error, § 488

      —when findings of master may not be objected to on appeal. A finding of fact made by a master in chancery, which is not objected to before the master or excepted to on the hearing before the court, cannot be objected to for the first time in the Appellate Court.
    3. Railroads, § 397

      —when subcontractor entitled to a lien.
      Under the provisions of section 7 of the Railroad Lien Statute (Hurd’s Rev. St. ch. 82, sec. 13 (J. & A. If 7189), a subcontractor has a right to a lien upon giving the proper notice and taking the necessary steps notwithstanding the original contractor has not completed his contract, or has abandoned the same.

      S. W. Baxter, J. E. Hamlin and J. L. Flannigen, for appellant Southern Traction Company of Illinois.
    Joseph W. Moses and John C. Slade, for appellant Union Trust & Savings Bank of East St. Louis; Joseph W. Moses and Henry Jackson Darby, of counsel.
    George B. Logan and Kramer, Kramer & Campbell, for appellees H. L. Angerer and Bobert Abeles, Jr.
    Turner & Holder, for appellee John D. Vogt.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois. Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

4. Assignments, § 31 —when Men of railroad subcontractor is enforceable by his assignee. The lien of a subcontractor under the railroad lien statute is enforceable in equity by the assignee of such contractor suing in the name of the latter, distinguishing the case of Cairo & V. R. Co. v. Fackney, 78 Ill. 116.

5. Limitation oe actions, § 64 —what constitutes statement of new cause of action in amended bill claiming railway subcontract- or’s lien. Where an amended bill claiming a subcontractor’s lien under the railroad lien statute was filed more than three months after the lien had accrued, including therein extra materials not included in the original bill filed within said three months, held that the claimant would not be entitled to a lien for such extras for the reason that, as to them, said amended bill set forth a new cause of action.

6. Interest, § 76 —when not allowed. Unless interest is asked in a bill claiming a lien under the railroad lien statute, the court would not be authorized to decree interest to such claimant.

7. Railroads, § 408 —when .party is not in position to insist upon determination of priority of lien. Where a railroad company, against which and its general contractor, a railroad lien proceeding was instituted for the construction of its road, by a subcontractor, was shown to be in the hands of a receiver, and the general contractor in the bankruptcy court, and a bank, also made a defendant to the proceeding, appeared by its answer to hold certain bonds of said company as collateral security for a loan made by such bank to certain individuals, and appeared to be defendant in another suit in a federal court with reference to the same bonds and had been enjoined from turning them over to anybody, held that aside from the bankruptcy and receivership proceedings the bank was not in a position to insist on a decree giving it a prior lien on the property involved.

8. Appeal and error, § 1666 —when right to raise question as to nonjoinder of party defendant is waived. Where, in a subcontractor’s proceeding under the railroad lien statute, an amended bill was filed after the expiration of three months from the accrual of the lien claimed, making a new defendant a party to such proceeding, who neither by plea in abatement, demurrer nor plea of the statute of limitations raised the question in the trial court of the right to maintain such proceedings by reason of such defendant not having been made a party thereto within the three months specified in said statute, held that such defendant waived the right to raise such question and could not for the first time present the same in the Appellate Court.

9. Railroads—when objection that defendant should have been made party to intervening petition in subcontractor’s proceeding for lien is without merit. Where, in a subcontractor’s proceeding under the railroad lien statute, another subcontractor intervened, claiming also in part as a judgment creditor, an objection on the part of a defendant in the original proceeding, who claimed a lien as a bondholder, that it should have been made a party to .the intervening petition, held to be without merit, since such petition amounted, in effect, to an answer and not to a cross-bill.


text:
    Joseph Bisencon, Appellant, v. Wesley Walters, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action of forcible entry and detainer by Joseph Bisencon, plaintiff, against Wesley Walters, defendant. From a judgment for defendant, plaintiff appeals.
    The land in controversy consisted of some 2.46 acres, sometimes described as Lots 15, 27 and 28 in the Village of Caholda, Illinois. Plaintiff and defendant were both tenants, plaintiff being a tenant of August A. Busch, who claimed to own a tract of about 190 acres, which tract included the 2.46 acres above mentioned, and defendant being a tenant of the widow of Joseph La Valle, who claimed some interest in said above-described premises.
    Abstract of the Decision.
    1. Appeal and error, § 1173

      —What questions reviewed in absence of proposition of la%o. Where trial was had by the court without a jury, and no propositions of law were submitted to be held or refused by the trial court on the hearing, and no question was raised on the pleadings, the only matters to be determined on appeal under the assignment of errors are whether the court erred in its rulings on the evidence and whether the finding of the court was against the manifest weight of the evidence.

      ' Some fifteen or sixteen years prior to the bringing of this suit, defendant went into possession of said premises under the LaValles, who gave him the right to occupy the same on his agreement to clear the land.
    Defendant farmed a part of said premises and raised corn thereon which he sold at the vegetable market. After occupying said premises for a few years, defendant went to Kansas City and stayed there ten years. He afterwards returned, and about eighteen months before suit was brought moved on the premises in question. He erected a house thereon, or, as it is sometimes called by the witnesses, a shack, where the evidence discloses* defendant was living at the time this suit was brought and at the time of the hearing. While plaintiff’s lease covered the 2.46 acres in controversy, he never had farmed it, nor made any use of it. No one molested defendant while building said house or in his occupation of said premises until this suit was brought.
    The LaValles, through whom plaintiff claims, have been in possession of said tract of land during all the time it was practical to have the possession of the same, being for more than sixty years prior to the bringing of this suit.
    L. D. Turner, Jr. and Turner & Holder, for appellant.
    Keefe & Sullivan, for appellee.

      See Illinois Notes Digest, Vola, XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

2. Forcible entry and detainer, § 73 —when evidence as to survey of land is inadmissible. Where, in an action of forcible entry and detainer between two tenants of different landlords, both claiming an interest in the land in dispute, the record showed that a witness was acting as the agent of one of said landlords and that any survey made by him of such land was at the instance of his principal without the presence of the other tenant or his landlord or notice to either, held that the court did not err in refusing to allow said witness to testify with reference to any such survey, especially as the witness was allowed to testify that he caused the tract occupied by his landlord’s tenant, which included as a part of the same the premises in controversy, to be fenced and as agent had rented said tract to such tenant.

3. Forcible entry and detainer, § 67 —what is only issue in action of. In an action of forcible entry and detainer, the possession or the right of possession of the premises is the only matter in controversy, and the evidence should be confined to this issue.

4. Forcible entry and detainer, § 73 —when tax receipts are inadmissible in evidence. In an action of forcible entry and detainer heard by the court without a jury, the court did not err in refusing to consider certain tax receipts offered in evidence by one of the parties tending to show payment by him of taxes on the premises in controversy during certain years preceding the bringing of the suit, as such evidence was not material.

5. Trial, § 77 —when evidence offered in rebuttal may be refused. Material evidence offered in rebuttal may properly be refused, as such evidence should be offered in chief.

6. Forcible entry and detainer, § 84 —when evidence insufficient to show forcible entry or wrongful detention. Evidence held to show that no forcible entry by defendant on the premises in controversy was shown and that he did not wrongfully detain same after obtaining peaceable possession thereof.