text:
    F. W. Cook Brewing Company, Appellant, v. Mary Goldblatt et al., Appellees.
    1. Appeal and error, § 1361

      —when not error to permit filing of additional pleas at time of trial. In an action on a guaranty contract, held not error for court to permit the defendant to file a plea of non est factum after the trial had begun, where the request to file such plea was not made until after plaintiff, by leave of court, had filed an additional count to his declaration.
    2. Appeal and error, § 1361

      —when not error to permit defendant to file additional pleas. The right to file additional pleas is a matter in the discretion of the trial court, and unless the court has abused this discretion it is not error to permit such pleas to be filed.
    3. Guaranty, § 22

      —what questions relating to alteration of contract are for court and jury. In an action on a guaranty contract, where the defense is that there was a material alteration of the contract by ■ the attachment of a rider thereto after the contract was signed by the defendants, held on conflicting evidence that the question whether a rider was attached before or after the contract was signed was for the jury, but the question whether the attachment of the rider after the contract was signed was such a material alteration as will avoid the contract is for the court.
    4. Guaranty, § 37

      —when instruction erroneous as submitting a question of law. In an action on a guaranty contract, where the defense is that there was a material alteration of the contract by the attachment of a rider thereto and also the filling in of blanks in the contract after it was signed by the defendants, an instruction submitting to the jury the question whether there was an alteration of the contract, held erroneous as submitting to the jury a question of law, where under the instruction, the jury might have determined that the filling in of the blanks constituted a material alteration.
    5. Guaranty, § 22

      —when filling in blanks not an alteration of contract. Where a party signs a contract of guaranty in blank and delivers it, the party to whom it is delivered has the right to fill in the blanks, and by so doing he does not alter the contract if he filled the blanks in accordance with the agreement of the parties.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed October 16, 1913.

      Gillespie & Fitzgerald, for appellant.
    John G. Friedmeyer and Stevens & Herndon, for appellees.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Plaintiff brings this action against defendants upon an alleged contract of guaranty whereby it is claimed defendants guarantied the financial responsibility of Joseph Goldblatt according to an agreement entered into between Goldblatt and plaintiff whereby plaintiff contracted to sell the products of its brewery to Goldblatt exclusively in Springfield, Illinois, and by which agreement plaintiff sold its beer to G-oldblatt at certain stipulated prices on the conditions named in said agreement.

The alleged contract of guaranty upon which this action is based guaranties the payment by Goldblatt for all the products of plaintiff’s brewery bought by him.

To the declaration as originally filed by plaintiff, defendants pleaded only the general issue, afterwards by leave of the court, one additional count was filed, after the case had been called for trial and after plaintiff had filed the additional count, defendants obtained leave to file a plea of non est factum. The trial resulted in a verdict and judgment for defendants, from which judgment plaintiff prosecutes this appeal.

Appellant insists that the court erred in granting leave to defendants to file the plea of non est factum after the trial had begun. This request to file this plea was not made until after the additional count to the declaration had been filed by plaintiff; the filing of this additional count gave to the defendants the further right to plead as they had the right to set up any matter after the filing of this additional count that they might see fit that would be a proper defense to this action. But notwithstanding defendants might do this as a matter of right, the right to file additional pleas is a matter in the discretion of the trial court, and unless the court has abused this discretion it is not error to do so. The court properly permitted this plea to be filed.

The evidence is conflicting as to whether or not the, contract of guaranty, which is partially written and partially printed, had the blanks which are now filled with writing filled in at the time the contract was signed by all the sureties. Dr. Compton, one of the defendants, testifies that none of those blanks were filled in at the time he signed the contract.

The only defense offered to this action is that the contract made with Goldblatt which these defendants guarantied should be performed by Goldblatt was changed and a material alteration made therein after it was signed by the defendants. The evidence discloses that the contract between Goldblatt and the contract of guaranty are all upon a single sheet of paper, and the defendants insist that when they signed this contract of guaranty it consisted of but the one single1 sheet of paper.

As the contract now appears in the record it has pasted thereto a slip of paper which is designated as a rider. This rider is in the following language:

“Springfield, Ill., August 26, 1910. The sureties on this bond hereto attached agree that the above bond shall cover the amount of beer, on hand at Springfield, August 15,1910, and a car of beer shipped from Evansville, Indiana, August 13, 1910, the cash net value of, the same amounting to $1,289.57, the cases and bottles belonging to the F. W. Cook Brewing Company, the above being the correct amount. Signed:
F. W. Cook Brewing Company,
By Enw. B. Pregler.
Joseph Goldblatt.”

The contract without this rider only guarantied the payment of the accounts of Goldblatt with the plaintiff which might accrue after the date of that contract, August 26, 1910, and the defendants insist that the attaching of this rider to the contract, whereby it rendered them liable not only for future shipments of beer to Goldblatt but also for that that had been shipped to him on August 13th and August 15th as stated in this rider, and that by attaching this rider to the original contract the plaintiff made such a material alteration in the contract of guaranty that it avoids the contract which they did sign. Plaintiff, on the other hand, insists that the rider was fastened to and made a part of this contract of guaranty before it was signed by the defendants. The evidence upon this question is very conflicting and it is impossible to reconcile it; it became and was a question for the jury to determine whether the rider was attached before or after the contract was signed by the defendants, and that question must be left to the jury under proper instructions by the court.

If this rider was attached before the contract was signed then the defendants are liable, if it was not so attached then the attaching of it to the contract was such a material alteration as will avoid their contract and they cannot be held liable thereunder. The question as to whether or not the rider was attached before or after the signing of the contract was, as above stated, a question for the jury, but the question as to whether or not the attaching of the rider, if it was attached after the contract was signed, was such a material alteration as will avoid the contract is one for the determination of the court and not for the jury. The court, however, gave to the jury on behalf of the defendants the following instruction:

“The court instructs the jury that if you find from a preponderance of the evidence that said contract between Goldblatt and said brewing company had been materially altered, changed or added to since the signing of the said contract of guarantee by the defendants herein without the knowledge or consent of said defendants and that said defendants have not acquiesced in any such alteration, change or addition, if any, then you should return a verdict for the defendants.”

If the defendant Compton had not testified that no blanks in the contract were filled at the time he signed it, then the only question as to the material alteration in this contract would be whether the rider was attached before or after the contract was signed, and the only question that should properly have been submitted to the jury was whether or not this rider was so attached, and if it was so attached, the question of its materiality was for the court and not for the jury. If the jury did determine in their deliberations that the rider was attached after the contract was signed by the defendants then they must also have determined that there was a material alteration, and if there had been no evidence of any other additions to this contract we would be inclined to hold that the giving of this instruction was not error, but with the evidence of Compton that no blanks were filled at the time the contract was signed, the question as to a material alteration of the contract was not alone with the attaching of the rider so far as the submitting of the question to the jury was concerned, although they might have found in their deliberations that the rider was attached when the contract was signed they might under this instruction have determined that the filling in of the blanks, if they believed they were filled in after the contract was signed, was a material alteration of this contract, while the law is that if the party signs a contract of this character in blank and delivers it, the party to whom it is delivered has the right to fill in these blanks, and by doing so he does not ¿liter the contract if he filled the blanks in accordance with the agreement of the parties. By giving this instruction to the jury the court submitted to it a question of law, and the judgment must therefore be reversed and the cause remanded. The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Philbrick

license: Public Domain

text:
    Andrew J. Miller, Appellee, v. Assureds’ National Mutual Fire Insurance Company of Decatur, Illinois, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 705

      —when plea of failure of consideration for reinsurance contract demurrable. In an action to recover on a fire insurance policy, the contract being an agreement to reinsure the risks of another company, with conditions requiring the policy holder to assign to the defendant whatever claim he might have against such other company for unearned premiums and pay the balance in cash, action of court in sustaining demurrers to defendant’s pleas of failure of consideration setting up that the agreement on the part of plaintiff to assign his claim against the former company without in any way averring that no assignment of the claim was made, held not error.

      Appeal from the Circuit Court of Macon county; the Hon. William G. Cochean, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 16, 1913.
    Rehearing denied December 3, 1913.

      Certiorari granted by Supreme Court.
    Statement of the Case.
    Action by Andrew J. Miller against Assureds’ National Mutual Fire Insurance Company of Decatur, Illinois, a corporation, to recover on a policy of fire insurance reinsuring the risk of another company. From a judgment in favor of plaintiff for two thousand one hundred and seventy-three dollars, defendant appeals.
    This is the second appeal of this case to this court. Upon the former appeal the judgment of the trial court was reversed and the cause remanded. The former opinion was written by Mr. Justice Puterbaugh, and the facts are fully stated in the former opinion found in 164 Ill. App. 237.
    McGinley & Wiley and Gillespie & Fitzgerald, for appellant.
    Sheridan & Gruber and Leforgee, Vail & Miller, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic ancl section number.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

2. Witnesses, § 298 —when character evidence as to reputation for truth and veracity not too remote to impeach witness. To impeach the character of witnesses for their truth and veracity, evidence offered to show their reputation at a place where they resided two years prior to the time of the facts involved in controversy, held admissible, and action of court in sustaining an objection to such evidence because too remote, held error, though not prejudicial error.

3. Appeal and error, § 1455 —when error in sustaining demurrer to plea cannot he complained of. Defendant cannot complain that trial court improperly sustained a demurrer to his plea where he was permitted upon the trial to introduce evidence which could only have been proper under his plea.


text:
    Charles E. Moran, Appellant, v. A. B. Dennis and Oliver Morgan, Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholeield, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Charles E. Moran against A. B. Dennis and Oliver Morgan, in assumpsit, to recover a certain sum alleged to be due to plaintiff from defendants by reason of the defendants procuring the release of a mortgage which plaintiff had assumed as a prior grantee. From an order sustaining a demurrer to plaintiff’s declaration, plaintiff appeals.

      Abstract of the Decision.
    Mortgages, § 270

      —when declaration in assumpsit for wrongful release of mortgage states a cause of action. Declaration in assumpsit against two defendants to recover a sum claimed to he due to plaintiff hy reason of the wrongful release of a mortgage, alleging that plaintiff was a grantee of mortgagor and was compelled to pay the mortgage by reason of a clause in his deed assuming the mortgage, that one of the defendants, a subsequent grantee, who also assumed the mortgage wrongfully procured the other defendant, the mortgagee, to execute a release thereof, thereby depriving the plaintiff of the right to pursue the property and foreclose the mortgage, held to state a cause of action, and that the action of the court in sustaining a demurrer to the declaration was error.
    G. W. Salmans, for appellant.
    A. B. Dennis, for appellees.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


text:
    Otto Hermanson, Plaintiff in Error, v. Louis Shaffer, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Vermilion county; the Hon. Mobton W. Thompson, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Otto Hermanson against Louis Shaffer, chief of police of the city of Danville, to recover damages for false imprisonment, it being alleged that defendant imprisoned and detained plaintiff in prison without reasonable or probable cause. From a judgment in favor of defendant on a directed verdict, plaintiff brings error.
    Abstract of the Decision.
    1. Arrest, § 25

      —necessity of warrant. Ample authority is vested in the police of a city to arrest a person in the act of violating an ordinance without a warrant having been issued therefor.
    2. Arrest, § 25

      —when police officer may arrest without a warrant being issued. A patrolman finding a person in a city traveling from house to house with Ms satchel containing boxes and bottles therein, apparently in the act of peddling, in violation of an ordinance, may arrest him without a warrant being issued therefor.
    3. False imprisonment, § 26

      —burden of proof. In an action for false imprisonment it is incumbent upon the plaintiff to show that there was no reasonable ground or cause to believe the plaintiff guilty of the charge for which he was arrested and imprisoned.
    4. False imprisonment, § 30

      —when direction of verdict for defendant proper. In an action for false imprisonment, a directed verdict to find for defendant held not error, where from the evidence the only conclusion that can he arrived at is that there was reasonable cause to believe that plaintiff was guilty of the charge for which he was arrested.
    5. False imprisonment, § 28

      —proof sufficient to bar recovery. In an action for false imprisonment, the record of the judgment of the police magistrate showing that plaintiff pleaded guilty to the charge for which he was arrested, and testimony of the police magistrate to the same effect, held to be sufficient proof alone to bar a recovery.
    6. Arrest, § 22

      —power of city to detain person arrested in custody over night. A person arrested and taken to a city prison at a late hour is not entitled to an immediate trial; the city has a right to hold him in custody until the city is able to secure witnesses and prepare for trial, and under R. S. c. 24, art. VI, § 12,. J. & A. 1355, it is not unlawful to confine him in the city prison until the following morning to await his trial.
    F. L. Draper, for plaintiff in error.
    J. B. Mann, for defendant in error.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


text:
    Sarah E. Hemmick, Administratrix, Plaintiff in Error, v. Baltimore and Ohio Southwestern Railroad Company, Defendant in Error.
    1. Master and servant, § 98

      —when declaration does not show action to be based on Federal Compensation Act. In an action against a railroad company to recover for the death of an engineer, where the declaration is not based upon the Federal Compensation Act and does not aver that the company was doing an interstate commerce business and does not allege any acts showing that the company is controlled by or comes within the provisions of the Federal act, the Federal act has no application to the action, but the action is controlled wholly by the decisions of the State courts.
    2. Master and servant, § 118

      —when release executed to railroad company constitutes a bar to action for death of engineer. In an action against a railroad company to recover damages for the death of plaintiff’s intestate while employed by the defendant company as an engineer, a release executed by plaintiff to the company’s relief department, of which deceased was a member, releasing all rights and claims against the company arising from the death of deceased for a sum of money provided to be paid by reason of deceased being a member of such department, held properly admissible in evidence and to constitute a complete bar to the action.
    Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Alonzo Hoff and Albert Salzenstein, for plaintiff in error.
    Graham & Graham, for defendant in error; Edward Barton, of counsel.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action brought by plaintiff against defendant to recover for the death of her husband who was killed in a railroad accident on the defendant’s railroad. The declaration consists of several counts charging negligence against the defendant in various forms which resulted in the death of plaintiff’s husband. Plaintiff’s husband was an engineer in the employ of the defendant and was killed while performing the duties of engineer, by reason of the train upon which he was engineer running into an open switch thereby causing a collision with cars upon the switch track. The deceased was killed either by reason of the impact of the collision or by the reason of jumping from his engine after his train had gone into the open switch and upon the siding.

The defendant Company provided a relief department known as the Baltimore and Ohio Railroad Relief Department; the deceased was a member of this department, and by reason of being a member of this department and maintaining his membership therein, the widow and child were paid twenty-five hundred dollars; upon the payment of this sum, the following release was executed and delivered to the defendant Company:

The Baltimore and Ohio Railroad Co.
Relief Department.
Release on Account of Death Benefit.
Whereas, David O. Hemmick, deceased, lately in the service of The Baltimore and Ohio Southwestern Railroad Company, was a member of the Relief fund of the Relief Department the then Baltimore and Ohio Railroad Company under Application No. 505672, and the Death Benefit payable from said Relief Department on account of such membership, amounting to TWENTY-FIVE HUNDRED Dollars ($2500.00) with unpaid Disablement Benefit amounting to... .Dollars ($......).., is upon the condition of the execution of this Release, as provided in the said application, payable to his widow, Sarah R. Hemmick, and Lenora Mildred Hemmick.
Now, therefore, we, the undersigned, do hereby acknowledge that the payment of the said amount by the said Relief Department as aforesaid, which payment is hereby acknowledged, is in full satisfaction and discharge of all claims or demands on account of, or arising from, the death of said deceased, which we now have, or may, or can hereafter have against The Baltimore and Ohio Railroad Company, operating the said Relief Department, and The Baltimore and Ohio Southwestern Railroad Company, and the Baltimore and Ohio Railroad Company, * * ° and do hereby release and forever discharge The Baltimore and Ohio Southwestern Railroad Company, The Baltimore and Ohio Railroad Company, and the said other companies from all said claims and demands.

The undersigned hereby admits that under the terms of the said application and the regulations of the Relief Department, the acceptance of the said benefits of itself operates as a full release of all the claims of the undersigned for damages by reason of said injuries against any of the said companies above referred to.

Witness our hands and seals this 25th day of March, A. D., 1911.

In the presence of:

Notwithstanding the receipt of the twenty-five hundred dollars provided for in this release, the payment of which is not denied, plaintiff contends she is entitled to recover for the death of her husband if caused by the negligence of the defendant Company.

The cause was tried below, and after the evidence of the plaintiff was heard a motion was made by defendant to direct a verdict in its behalf; this motion was denied. Defendant then offered in evidence the release above set forth, which was admitted by the court, and, after all the evidence was heard, the motion to direct a verdict for the defendant was renewed, and the motion sustained, and the jury directed to return a verdict for the defendant, holding that the release, the execution of which was not denied, was a bar to this action. Plaintiff insists that the court erred in admitting this release in evidence, and in directing a verdict for the defendant, and prosecutes this appeal.

From the view taken by this court upon this record, it is unnecessary to discuss or determine any of the questions raised excepting those relating to this release and the rulings of the court thereon.

The declaration is not based upon the Federal Compensation Act, and does not aver that the defendant Company was doing an interstate commerce business, does not allege any acts showing that the defendant Company is controlled by or comes within the provision of the Federal Compensation Act; consequently, the Federal act has no application to the case at bar, and it must be controlled wholly by the decisions of the State courts. Luken v. Lake Shore & M. S. Ry. Co., 248 Ill. 377.

The deceased having become a member of the relief department of the defendant Company, and plaintiff having received the amount of money provided to be paid by reason of her husband being a member of that department, and having received the same from the defendant Company, and executed a release for the same and releasing all rights and claims against the defendant Company, that release is a complete bar to the prosecution of this action under Eckman v. Chicago, B. & Q. R. Co., 169 Ill. 312; Pennsylvania Co. v. Chapman, 220 Ill. 428.

The trial court did not err in admitting the release in evidence or in directing a verdict for the defendant, and its judgment is therefore affirmed.

'Affirmed.


text:
    City of Jacksonville, Appellee, v. John Vieira et al., Appellants.
    1. Intoxicating liquors, § 167

      —when hill by city will not lie to restrain violation of an ordinance. Bill cannot be maintained by a city for a temporary injunction to restrain persons from keeping and occupying premises for the purpose of storing and taking orders for the sale of intoxicating liquors in violation of a city ordinance, where the city has made no attempt to prosecute either of the defendants for a violation of the ordinance in the city courts, to indict by the grand jury or to prosecute by information before the County Court.
    2. Intoxicating liquors, § 167

      —when hill will not lie to close place kept for storing and taking orders for the sale of, in violation of ordinance. Before a bill in chancery will lie to close as a nuisance, a place- kept by defendants for storing and taking orders for the sale of intoxicating liquors in violation of a city ordinance, the defendants are entitled to a trial by a jury upon the questions whether or not liquors were sold in violation of the ordinance, whether they kept, maintained and stored such liquors in violation of the ordinance, and whether the premises were occupied for such purpose.
    Thompson, J. dissenting.
    Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 16, 1913.

      Thomas F. Ferns, for appellants; Adams, Nelms & Reisch, of counsel.
    William N. Hairgrove, for appellee.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

The City of Jacksonville filed its bill in chancery alleging that the defendants were the owners of certain real estate described in said bill and located in the City of Jacksonville; that on said real estate was a two-story brick building occupied by one of the defendants and that the room so occupied by the defendant Vieira was used for the purpose of storing and taking orders for the sale of intoxicating liquors; that by reason thereof said building was at that time and prior thereto a common nuisance alleging that said Vieira would continue to occupy said room in said building for the purpose of so taking orders for the sale and storing of intoxicating liquors unless restrained by the People’s writ of injunction as prayed for in said bill; that the acts of the said defendants were in violation of an ordinance of the City of Jacksonville regarding the sale and giving away of intoxicating liquors, duly passed by said City of Jacksonville and then in force.

Upon the filing of this bill a temporary injunction was issued restraining the defendants from keeping and occupying said premises for the illegal use as aforesaid and from therein taking orders or permitting people to there congregate for the purpose of drinking, bartering, exchanging or in any manner using intoxicating liquors. The defendants entered a motion to dissolve the temporary writ of injunction issued upon said bill and upon hearing upon said motion the same was denied, and from the order denying the motion to dissolve this injunction the defendants have prosecuted an appeal to this court.

The only questions raised by this appeal are, whether or not the City of Jacksonville has the power or authority under the law to file a bill for injunction regarding the sale or giving away of intoxicating liquors or keeping places where the same may be stored, sold or drunk upon the premises, and whether a bill in chancery is the proper remedy to restrain a violation of this ordinance without any other remedy having been resorted to. No attempt was made upon the part of the City of Jacksonville to prosecute either of the defendants in an action at law for the violation of the ordinances which it is insisted were being violated before the filing of this bill but this is an original prosecution commenced by way of injunction to restrain the doing of certain acts which it is insisted by appellee create a nuisance and that the city has the power to abate a nuisance by a bill in chancery. Appellee relies upon the case of Stead v. Fortner, 255 Ill. 477, as authority for this proceeding. The Fortner case is distinguishable from the one at bar from the fact that local authorities had tried in every way possible to prosecute at law the alleged violations of the law for selling intoxicating liquors in anti-saloon territory in the city of Shelbyville, Illinois, where the case arose. The proper authorities had presented the matter to the grand jury for indictment and the grand jury of the county had refused to indict; they also filed informations in the County Court of Shelby county and the County Court refused to issue warrants upon the information, and after having failed to secure a prosecution in every way possible in an action at law resort was then had to a bill in chancery, and it was sustained. In the case at bar there has been no attempt in any way to prosecute either for a violation of the ordinances in the city courts, to indict by the grand jury, or to prosecute by information before the County Court. The prosecution in the Fortner case, supra, was not for a violation of a city ordinance, but for a violation of the Dramshop Act, and the bill was filed by the State’s Attorney of Shelby County and the Attorney General of the State of Illinois and prosecuted in the name of the Attorney General, only after a complete failure to secure prosecutions at law; consequently, the Fortner case cannot be considered authority for this prosecution, and we have been cited to no authority by appellee in which a bill in chancery will lie at the first instance to restrain a violation of an ordinance of a city.

The question as to whether or not liquors were sold in violation of the ordinance, whether they were kept, maintained and stored in violation of the ordinance, and whether the premises were occupied for such purposes is a question of fact and upon these questions the defendant is entitled to a trial by jury, and cannot be deprived of such trial by the filing of a bill in chancery by the city of Jacksonville. The ordinance which it is insisted was being violated provides that upon the conviction of any person keeping or maintaining premises where intoxicating liquors are sold in violation of the ordinance, it shall be part of the judgment of the conviction that the place shall be kept shut until a bond with sufficient security in the sum of one thousand dollars shall be provided conditioned that no further violation of the law will be committed at such place, and until either a conviction is had or a sufficient showing-made that the officers whose duty it is to enforce the ordinances refuse to obey the law and that no conviction or trial can be had by reason thereof, a bill in chancery will not lie.

In Finegan v. Allen, 46 Ill. App. 553, the Appellate Court of the First District held that an injunction will not be issued to restrain the violation of a city ordinance, that the enforcement of a city ordinance is not one of the functions of a court of chancery, and in People v. Condon, 102 Ill. App. 449, that a bill will not lie to restrain the commission of criminal acts, and we fully agree with that court upon this question; and the Supreme Court in Poyer v. Village of Des Plaines, 123 Ill. 111 and Yates v. Village of Batavia, 79 Ill. 500, have further held that a court of equity will not restrain by injunction offenders of a violation of an ordinance of the city; and before a bill in chancery will lie to close the place of the defendants as a nuisance, defendants are entitled to a trial by jury upon the question of fact as to whether or not the place is kept in violation of the ordinance and contrary to its provisions.

The motion to dissolve this injunction should have been allowed; to deny it was error. The order of the court denying the motion is therefore reversed, set aside and held for naught, and the cause is remanded to the trial court with directions to enter an order dissolving the temporary injunction.

Reversed and remanded with directions.

Mr. Justice Thompson dissents.


text:
    C. E. Hoxworth, Appellant, v. Walter Kepple, Appellee.
    (Not to be reported in full.)
    Appeal from the County Court of McDonough county; the Hon. Conbad G. Gumbart, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by C. E. Hoxworth against Walter Kepple to recover back money paid for hay on account of the hay being damaged and a mistake in measuring same and for breach of warranty for the quality thereof. Suit was commenced before a justice of the peace, where plaintiff recovered judgment.. Defendant then appealed to the County Court; where judgment was rendered in favor of defendant on a directed verdict, from which judgment plaintiff appeals.

      Abstract of the Decision.
    Auctions and auctioneers, § 6

      —when purchaser of hay at auction sale cannot complain of amount paid for. Where a person purchases hay at an auction sale at so much a ton, it being announced at the time of the sale that the hay had been measured by disinterested persons and that bidders not satisfied with such measurements would be given opportunity to remeasure the same, held that the purchaser cannot complain that he did not get the full amount paid for where he voluntarily settles for the hay after he had ample opportunity to ascertain the amount thereof before making payment.
    Vose & Creel, for appellant.
    Flack & Lawyer, for appellee.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


text:
    G. W. Bryant, Appellee, v. Vandalia Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Moultrie county; the Hon. William G. Cochean, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by G. W. Bryant against Vandalia Railroad Company to recover for services rendered to defendant by plaintiff as station agent. Suit was commenced before a justice of the peace and plaintiff recovered a judgment. Defendant then appealed to the Circuit Court where judgment was rendered in favor of plaintiff for one hundred and thirty-five dollars, and from that judgment defendant appeals.

      Abstract of the Decision.
    1. Master and servant, § 71

      —when station agent for railroad company not chargeable with loss resulting from mistake in sale of tickets. Where a station agent in the employ of a railroad company makes a mistake in selling excursion tickets at a price below the tariff rates, in an action by such agent against the railroad company for wages held that the company cannot charge him with the less occasioned by the sale of the tickets, where the proof shows that the agent used his best judgment and every available effort for the purpose of ascertaining the rate, and after consulting the traveling passenger agent ®f the company availed himself of every means at his command to ascertain the correct fare.
    2. Master and servant, § 88

      —allowance of attorney’s fees in an action for wages. Under the statute entitling plaintiff to attorney’s fees in an action for wages, where trial is by jury, the question as to the amount of attorney’s fees is for the court; but before such fees may be allowed it is necessary that the jury should find that the amount due was the amount demanded of defendant in the written demand made by plaintiff, and -find that the amount was due for labor, wages, etc.
    3. Master and servant, § 88

      —when submission to jury of question as to amount of attorney’s fees is error. In an action by a station agent against a railroad company to recover wages, where demand is made under R. S. 1909, c. 13, ¶ 13, J. & A. ¶ 5285, to recover attorney’s fees held error for the court to submit to the jury the question of the amount of attorney’s fees and judgment rendered on a general verdict for wages including attorney’s fees reversed.
    4. Master and servant, § 88

      —persons entitled to attorney’s fees in action for toages. R. S. 1909, c. 13, ¶ 13, J. & A. ¶ 5285, permitting a recovery of attorney’s fees in an action for wages, held broad enough in its terms to permit the recovery of attorney's fees by a person employed by a railroad company as station agent.
    ' Outten, Ewing, McCullough & Wierman and E. J. Miller, for appellant.
    John E. Jennings, for appellee.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


text:
    Mary Kaminiski, Administratrix, Appellee, v. Corn Products Refining Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Roads and bridqes, § 184

      —when owner of abutting property liable for maintaining a public nuisance in highway. Where an owner of property abutting on a public highway maintains in the highway a box used to connect pipes from city water works with pipes leading from the highway to the property, such box having been constructed by a former owner of the property, held, in an action against the owner for the death of a person alleged to have been caused by the defective condition of such box while driving on the highway, that the only theory upon which plaintiff could recover would be that the maintaining of such box in the highway for the use of defendant was a public nuisance and that defendant was negligent in failing to abate same.

      Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed.
    Opinion filed October 16, 1913.
    Rehearing denied December 3, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Mary Kaminiski, administratrix of the estate of Frank Kaminiski, deceased, against Corn Products Refining Company, a corporation, to recover for the death of the deceased alleged to have been caused by the defendant unlawfully and negligently maintaining a certain box in a highway in such a condition that deceased in driving along the highway ran over and upon the same and was thrown from his wagon and killed. From a judgment in favor of plaintiff for seven thousand dollars, defendant appeals.
    Page, Wead, Hunter & Scully, for appellant.
    Prettyman, Velde & Prettyman, for appellee.

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

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

2. Roads and bridges, § 196 —when teamster guilty of contributory negligence in avoiding obstruction in highway. In an action against an abutting owner on a public highway to recover for the death of plaintiff’s intestate alleged to have been caused by defendant maintaining an obstruction in the highway by reason whereof deceased fell from his wagon and was killed, a verdict in favor of plaintiff held, not sustained by the evidence, the evidence showing that deceased was guilty of contributory negligence in driving his team.


text:
    William J. Jones, Appellee, v. Cincinnati, Hamilton and Dayton Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by William J. Jones against Cincinnati, Hamilton and Dayton Railway Company, a corporation, to recover for the loss of a trunk ®and its contents as baggage. The trunk was placed in defendant’s depot and during the night the depot was broken into, the trunk rifled and its contents taken. From a judgment in fayor of plaintiff for $58.55, defendant appeals.
    Outten, Ewing, McCullough & Wierman, for appellant.
    Chester Allan Smith, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Abstract of the Decision.

1. Carriers, § 544*—when liable for baggage stolen from baggage room. In an action to recover for the loss of baggage which was stolen from plaintiff’s trunk while stored in defendant’s depot at night, a verdict in favor of plaintiff was sustained, the evidence showing that entrance was made through the ticket office and waiting room to the baggage room and the door leading from the waiting room to the baggage room was unlocked.

2. Carriers, § 541*—what constitutes proper baggage. Contents of a trunk consisting of passenger’s wearing apparel, together with other personal property as he had or was used by him, articles and trinkets, of no considerable value, for his grandchildren and a small amount of jewelry which had belonged to his deceased wife, held, to constitute baggage.


text:
    John W. Neal, Appellant, v. Fletcher G. Burch, Appellee.
    Libel and slander, § 100—when declaration avers defamation actionable per se. In an action for slander, a declaration charging that defendant spoke and published concerning plaintiff that he with others had sworn to a lie, had sworn falsely and that affidavit is false, held, to aver language actionable per se under R. S. c. 126, J. & A. ¶ 10576, without averring that the statements were made of and concerning any judicial proceeding or of and concerning any action, time or place or regarding any matter which required that an affidavit should he made by the plaintiff.
    Appeal from the Circuit Court of Morgan county; the Hon. Owen p. Thompson, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 16, 1913.
    William N. Hairgrove, for appellant.
    M. T. Layman, for appellee.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action for slander brought by the plaintiff against the defendant. The declaration charges that the defendant made, spoke and published of and concerning the plaintiff certain false, slanderous, malicious and defamatory words, as follows:

“They (meaning the plaintiff) have sworn to a lie. They (meaning plaintiff as well as others) have sworn falsely. This affidavit (meaning the affidavit signed and sworn to by plaintiff) is false. He (meaning plaintiff as well as others) has sworn to a lie.” meaning and intending thereby that in making a certain affidavit the plaintiff had sworn falsely, also that plaintiff had perjured himself, he had sworn to a lie. The affidavit in which this matter is alleged to have been made was presented to the city counsel of the city of Waverly, Illinois, regarding a pavement in that city. Defendant demurred to the declaration, and the demurrer was sustained by the court. Plaintiff elected to stand by his declaration, and judgment was entered thereon, in bar of action and for costs. Plaintiff prosecutes this appeal.

The only question raised by this appeal is the sufficiency of the declaration.

While at common law the language averred in this declaration was not actionable per se, the statute of this State upon slander and libel (Chapter 126, Hurd’s Revised Statutes, J. & A. ¶ 10576) is as follows:

“It shall be deemed slander and shall be actionable to charge any person with swearing falsely or with having sworn falsely or having used, uttered or published words of, to or concerning any person which in their common acceptation amount to such charge, whether the words be spoken in conversation of and concerning a judicial proceeding or not.”

Under this statute it was not necessary to charge that the statements were made of and concerning any judicial proceeding or of and concerning any action, time or place or regarding any matter which required that an affidavit should be made by the plaintiff; the statute makes the uttering and publishing of the language averred in this declaration actionable per se. Sanford v. Gaddis, 13 Ill. 329. The demurrer admits the uttering and publishing of the words as alleged in the declaration. The declaration is sufficient to require defendants to plead thereto, and it was error for the court to sustain the demurrer, and by reason of the error of the court the judgment is reversed and the cause remanded with directions to the trial court to overrule the demurrer.

Reversed and remanded ivith directions.


text:
    Edward Moss, Appellee, v. Estate of Joseph Redmon, Appellant.
    1. Bills and notes, § 451

      —when finding of jury on question of payment of promissory note sustained by the evidence. In an action on a promissory note and to have the same allowed against the estate of the deceased maker, the evidence being conflicting on the question whether the note had been paid by the deceased, held, that a verdict in favor of plaintiff was not manifestly against the weight of the evidence, and that the evidence was sufficient to sustain the verdict.
    2. Bills and notes, § 426

      —what evidence inadmissible to show payment. In an action on a promissory note and to have the same allowed as a claim against the estate of the maker, evidence offered by defendant that plaintiff was present in a proceeding to have a conservator appointed for the maker, prior to his death, and did not dispute testimony that the maker was not at that time indebted to any one, held, inadmissible as a circumstance tending to show that plaintiff’s note had been paid, the plaintiff not being a party to that proceeding and not required to dispute the testimony offered to protect his claim.
    Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbbough, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    W. H. Clinton and F. C. Van Seller, for appellant.
    F. T. O’Hair and H. S. Tanner, for appellee.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This cause of action is upon a note of the principal sum of two thousand dollars, of date, December 10, 1902, given by one Joseph Bedmon in his lifetime to Sdward Moss, appellee. Joseph Bedmon died some time during December, 1911, and this note was probated against his estate in the County Court of Edgar county. The payment of the note was resisted by the administrator, and trial was had which resulted in a finding and judgment for the defendant. Appellee appealed to the Circuit Court and upon trial in that court recovered a judgment against the estate of Joseph Bedmon, deceased, for the principal and interest of this note.

The estate prosecutes this appeal and assigns as ■reasons for reversing this judgment that the court erred in the rejection of certain evidence offered by the estate, and for the further reason that the judgment is contrary to the law and evidence.

The facts as disclosed by this record show that Joseph Bedmon in his lifetime borrowed four thousand dollars from one John Moss, the father of appellee, Edward Moss; that he also borrowed from Ed Moss the sum of two thousand dollars which is represented by the note in question; that during the lifetime of Joseph Bedmon, John Bedmon, his son, held a power of attorney for the transaction of the business of Joseph Bedmon; that Ed Moss, appellee herein, was the son-in-law of Joseph Bedmon, deceased; that John Bedmon owed Joseph Bedmon two thousand dollars, and that at that time the note in question was still unpaid, that Joseph Bedmon, during his lifetime, together with John Bedmon and either John or Ed Moss or both of them, met at the Citizens’ National Bank some time during November, 1906, at which time John Bedmon paid his father the two thousand dollars owed by him. That this two thousand dollars was paid by Joseph Bedmon at that time either to Ed Moss in payment of the note in question or to John Moss in payment of the balance of the four thousand dollars which Joseph Redmon owed him, appellant insisting that the money was paid to Ed Moss in consideration and satisfaction of the note upon which this judgment was rendered, appellee contending" that he was not present at the time of this transaction in the Citizens’ Bank and that the money was paid to John Moss in satisfaction of the balance due him on the four thousand dollar note which he held against Joseph Redmon.

Upon the contention of appellant that the judgment is contrary to the evidence, we find upon this record that the evidence upon this question is very conflicting, and cannot be reconciled, the evidence of the appellant supporting his contention and the evidence offered on behalf of appellee supporting his contention. When such a condition exists, it is clearly and solely the province of the jury to determine the questions of fact upon which there is such a conflict of evidence, and the jury by their verdict have found the facts in this case and upon the question as to which note was paid at this meeting in the Citizens’ National Bank against the contention of appellant, and under the familiar rule which has been followed by this court, the verdict should not be disturbed, unless the court can say that the verdict is clearly and manifestly against the weight of the evidence, and we are satisfied that there is sufficient evidence in this record to sustain the verdict of the jury.

■ Upon the contention that the court erred in sustaining the objection to evidence offered on behalf of appellant, the record discloses that prior to the death of Joseph Redmon a conservator was appointed for him by the County Court of Edgar county, that upon hearing upon the application for the appointment of this conservator, Ed Moss was present and testimony was given at that time that Joseph Redmon was not at the time of the appointment of the conservator indebted to anyone, that his debts had all been paid, that Ed Moss sat by in the trial and did not in any manner attempt to dispute or contradict the testimony showing that Joseph Bedrnon was not at that time indebted to any person, and upon the trial in the Circuit Court in this case appellant offered to show that this testimony was given in the trial for the appointment of a conservator and that the same was not contradicted or denied in any way by Ed Moss, contending that thereby he should be estopped from now setting up this claim, and that that evidence was competent as a circumstance tending to show that the note in question had been paid. The court sustained objection to this testimony and we think properly so, as at that time Ed Moss was not required for the purpose of protecting any claim that he might have against the estate to deny or contradict the evidence offered, he was not a party to that proceeding and had no right simply because he held a claim against the estate to offer any evidence therein.

No complaint is made of the giving or refusing of instructions, and finding no reversible error in this record the judgment is affirmed.

Affirmed.


text:
    The Adder Machine Company, Appellant, v. E. A. Ross, Appellee.
    1. Appeal and error, § 1689

      —when want of joinder of issue on plea cannot he urged. Appellant cannot raise the question that no replication had been filed to a plea where the parties proceeded with the trial as though issue had been joined thereon.
    2. Replevin, § 103

      —when plea of property in another not supported by the evidence. In replevin to recover property pledged by plaintiffs agent to defendant as collateral security for a personal loan to the agent, the agent having executed a bill of sale of the property to a third party, a company in which defendant was interested as a partner, held, that a plea of title in such company was not supported by the evidence, the evidence showing that defendant knew that the agent did not own the property, and the company of which defendant was. a partner being chargeable with the knowledge of the defendant, and knowing that the property was transferred solely for the purpose of securing the indebted' ness due from the agent.
    3. Replevin, § 114

      —admissibility of evidence. In replevin to recover property pledged by plaintiff’s agent to defendant to secure a personal loan to the agent, the agent having executed a bill of sale to a company in which defendant was interested as a partner, held, that the bill of sale was admissible under a plea that the title was in the company as tending to contradict the testimony of the agent that he was not the owner of the property, but that it was competent for plaintiff to explain the bill of sale by showing that it was executed as a mortgage solely for the purpose of securing the indebtedness of the agent.
    4. Evidence, § 333

      —when parol evidence admissible to show consideration for written instrument. The rule that evidence cannot be offered to vary or contradict the terms of a written instrument is not violated by the admission of evidence tending to show what the consideration for the instrument was.
    5. Replevin, § 147

      —when refusal of plaintiff’s requested instruction is error. In replevin to recover property pledged by plaintiff’s agent to a third party as collateral security for a personal loan to the agent, refusal to give an instruction for plaintiff instructing the jury “that to entitle plaintiff to recover property replevined, under the issues joined, it is only necessary that it should prove by a preponderance of the evidence that it was the owner of the property in question or entitled to the possession of the same when this suit was commenced and that it had been wrongfully taken from its possession by defendant or that it was wrongfully detained by him,” held error.
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholeield, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    S. F. Schecter and Lindley, Penwell & Lindley, for appellant.
    Dwyer & Dwyer, for appellee.

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

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action of replevin brought by appellant to recover from appellee two adding machines. The trial below resulted in a judgment for defendant.

To the declaration filed appellee filed three pleas, one of non detinet, another non cepit and the other property in the Danville Credit Company. The plea of property in the Danville Credit Company was not filed until after the trial had begun and the record does not show that issue was joined on .this plea, but the parties having proceeded with the trial the same as though issue had been joined, appellant cannot now raise the question that no replication had been filed to this plea.

Appellant was the manufacturer of the two adding machines in question; it had as its agent at Danville, Illinois, one C. A. Simon. Simon finding it necessary to raise money for his own individual purpose, applied to appellee, who was a member of a partnership doing business in Danville under the name of the Danville Credit Company, for a loan of money. Simon had his office in rooms occupied by the Danville Credit Company. At one time he secured fifty dollars, and this sum was afterwards increased by various amounts to two hundred and seventy-five dollars. At the time of the securing of the first fifty dollars, Simon delivered to Boss one of the adding machines in question, and before securing the final amount which he received Boss insisted on securing possession of the other machine as collateral security, and a bill of sale was made by Simon to the Danville Credit Company for the two machines in question.

Appellee, Boss, was familiar with the fact and knew that Simon was not the owner of these machines, that he was the agent of appellant, and had been its agent in the city of Danville and sold these machines for some time prior to the transactions in question, and the bill of sale made by Simon whereby he attempted to transfer the title of this property to the Danville Credit Company in which Boss was a partner does not purport to be a bill of sale by appellant Company, but was made solely by Simon. The Danville Credit Company, of which appellee was a partner, was bound by the information had by Eoss, and with this knowledge and knowing that the transfer was made of these machines solely for the purpose of securing the indebtedness due from Simon, the Danville Credit Company obtained no title by reason of this bill of sale, and therefore the plea of title in the Danville Credit Company is not supported by the evidence in this record.

Upon the contention that the court erred in admitting the bill of sale in evidence, under the plea that the title was in the Danville Credit Company, it was admissible as tending to contradict the testimony of Simon that he was not the owner of the machines, that he had possession of and held the machines only as the agent of appellant, and there was no error in the admission of the bill of sale; and having been properly admitted the court did not err in permitting evidence to be offered to explain the bill of sale. While the bill of sale purported to be a complete transfer of the title upon its face it was competent to show that it was made and executed as a mortgage solely for the purpose of securing the indebtedness of Simon. The rule that evidence cannot be offered to vary or contradict the terms of a written instrument is not violated by the admission of evidence tending to show what the consideration for the instrument was; appellant not being a party to this instrument was not bound by its contents. The greater weight of the evidence in this record shows that Eoss was the party, with whom Simon was dealing, and that the possession of the machines was delivered to him. The record shows conclusively that the title to this property was in appellant and fails to show any power or authority in Simon as agent of appellant to pledge this property for the purpose of securing his personal indebtedness.

The evidence failing to support any of the pleas filed by appellee, the judgment is so clearly and manifestly against the weight of the evidence that it must be set aside.

Plaintiff requested the following instruction:

“The Court instructs the jury that to entitle plaintiff to recover property replevined, under the issues joined, it is only necessary that it should prove by a preponderance of the evidence that it was the owner of the property in question or entitled to the possession of the same when this suit was commenced and that it had been wrongfully taken from its possession by defendant or that it was then wrongfully detained by him.”

This instruction was refused by the court. The instruction correctly states the principle of law applicable to the facts in this case and should have been given to the jury. The court erred in refusing it.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    George H. Lovekamp, Appellant, v. John F. Cummings, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by George H. Lovekamp against John F. Cummings for damages alleged to have been sustained by plaintiff by reason of the alleged failure and refusal of defendant to complete and fulfil an alleged contract for the sale of á farm owned by defendant .and claimed to have been sold to plaintiff upon a contract of purchase. From a judgment in favor of defendant, plaintiff appeals.
    Abstract of the Decision.
    Appeal and error, § 528*—necessity of submitting questions of law or fact to trial court to preserve questions for review. . Where a . cause is submitted to the trial court without a jury, and no questions of law or fact are submitted to the court to be passed upon by it, the record preserves no questions to be passed upon by the court of review.
    Edward C. Knotts and Peebles & Peebles, for appellant.
    D. R. Kinder and A. J. Duggan, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


text:
    Angie Andrews, Appellee, v. City of White Hall, Appellant.
    1. Municipal corporations, § 993

      —duty to keep sidewalk free from obstruction. It is the duty of a city to keep and maintain its sidewalks free from obstruction and dangerous places for their entire width for the use of pedestrians while in the exercise of due care and caution.
    2. Municipal corporations, § 1098

      —when evidence sufficient to sustain verdict for injuries to pedestrian resulting from falling over obstruction on sidewalk. In an action against a city to recover for personal injuries sustained by plaintiff by falling over an obstruction on a sidewalk in front of a grocery store, evidence held sufficient to sustain a verdict for the plaintiff, where the evidence shows that the obstruction was placed upon the sidewalk by the* keeper of the store and the city had permitted the obstruction for a sufficient length of time to be charged with notice thereof.
    3. Municipal corporations, § 1053—care required of persons using street with knowledge- of obstructions. In an action against a city to recover for personal injuries sustained by a woman falling over an obstruction on a sidewalk, held that although plaintiff may have known of the existence of the obstruction in the street it was not negligence per se for her to use the street or to attempt to pass the obstruction, that the law only required of her that she use such due care and caution as would be commensurate with her knowledge of the conditions and surroundings existing at the time, and that whether she did use such care and caution is wholly a question for the jury.
    4. Appeal and error, § 1561

      —when refusal of requested instructions not error. Not error for court to refuse a requested instruction fully covered by others given, though such instruction contains a correct proposition of law.
    5. Appeal and error, § 1623

      —when error in the exclusion of evidence harmless. Appellant cannot complain of error of trial court in sustaining objections to evidence offered by it where such evidence was permitted to go to the jury at other times.
    Appeal from the Circuit Court of Greene county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    W. L. Winn and Thomas Henshaw, for appellant.
    Norman L. Jones and D. J. Sullivan, for appellee.

      See Illinois Notes Digest, Yols. XI to XV* same topic and section number.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is an action by appellee against appellant to recover for injuries received by appellee by reason of falling over an obstruction on the sidewalk under the control of appellant, alleged to have been negligently permitted to be and remain on said side walk by appellant. The trial below resulted in a judgment for twelve hundred and fifty dollars.

Appellee on the evening of the injury went from her home to the grocery store of one Piper to do some shopping; this store is located on the west side of Main street in the City of White Hall. Appellee on the evening of the accident approached the store from the north entering the store at a door located in the middle of the building, did her shopping, and on leaving the store attempted to go south on Main street. The store was lighted with electric lights. The sidewalk which was of cement was about seven feet wide and was six or eight inches lower than the floor of the storeroom. In front of the store and south of the door at the middle entrance, Piper had placed three steps or shelves for the purpose of displaying his goods. The frame work of these steps extended out on to the sidewalk 351/2 inches, covering nearly the half of the sidewalk. This obstruction had been there for a considerable length of time, was piled with goods from the store in the daytime but was left to remain in its position over night. No question is made but what the shelving or steps had been there a sufficient length of time for appellant to have known of its existence or that the same had been there for such -a reasonable length of time as to be constructive notice to appellant. On leaving the store and attempting to turn south upon this sidewalk appellee struck her foot or limb against the bottom step of this shelving. She was thrown down and severely injured.

Appellant insists on a reversal of the judgment and as grounds .therefor insists that the proof does not show any negligence on the part of appellant but that it establishes conclusively that appellee was not in the exercise of due care and caution for her own safety. Appellant insists also that the court erred in the giving and refusing of instructions.

There is no attempt on the part of the appellant to contradict the proof that these steps or shelving was upon the sidewalk or that it covered nearly three feet of the space of the sidewalk, and upon this proof there can be no contention that it was not an obstruction to the free use of the sidewalk; and upon what theory appellant contends that the permitting of this obstruction to be and remain upon the sidewalk as the proof shows was not negligence, we are unable to comprehend.

It is the duty of. the city to keep and maintain its sidewalks free from obstruction and dangerous places for their entire width for the use of pedestrians while in the exercise of due care and caution, and the only question of fact left for determination in this case is whether or not appellee was in the exercise of due care and caution for her own safety.

Appellant insists that appellee had been in the habit of visiting this store of evenings two or three times a week for a long space of time, that she knew this obstruction was kept and maintained upon this sidewalk by Piper, and that the lights in the store and upon the street were amply sufficient to permit it to be easily discovered and seen by anyone passing along the street while in the exercise of due care and caution for their safety, and that the proof is conclusive that appellee was not in the exercise of due care and caution.

The accident happened after night. While it is not disputed that the lights in the store were burning brightly and afforded sufficient light for anyone passing upon or along the sidewalk to see this obstruction, the question as to whether or not the lights were burning in the street is disputed. Appellee, on the other hand, insists that although the lights in the store were burning, the obstruction over which appellee fell was at the side of the store and that appellee in leaving the brightly lighted store going upon the street was not able until her eye became accustomed to the darkness to readily discern and see the obstruction, and that by passing from the brilliantly lighted store into the darkness the obstruction could not be readily discerned. What the evidence upon these questions established and the determination of the fact as to whether appellee was in the exercise of due care was for the jury.

Although appellee may have known of the existence of this obstruction, it was not negligence per se for her to use the street or to attempt to pass the obstruction; the law only required of her that she use such due care and caution as would be commensurate with her knowledge of the conditions and surroundings existing at the time, and whether she did this was wholly a question of fact for the jury, and we are not prepared to say that the finding of the jury upon this question is clearly and manifestly against the evidence, and unless we are able to do so, under the familiar rule adopted by the courts, then verdict should not be disturbed.

With regard to the error which appellant urges the court committed in sustaining objections to evidence offered by it and overruling objections made by it to appellee’s testimony, after a careful examination of this record we are satisfied that appellant was not injured by any rulings of the court in regard to the admission of evidence, as the evidence to which objections were made by appellant and sustained was permitted to go to the jury at other times.

Upon the question of the refused instruction offered by appellant, the court did not commit any error, as the law presented by this instruction was fully given to the jury by other instructions. But appellant insists that it was entitled to have these instructions given where they' contain correct propositions of law although other instructions were given containing the same propositions, and insists on this although to give this instruction would have been to duplicate portions of other instructions given, it insists upon this under the rule that appellants were entitled to have the jury fully instructed. While that is the rule, appellants were not entitled to duplicate their instructions in this manner and the refusal to give them was not error; and we find no error in the'giving or refusing of any of the instructions, the jury was fully and amply instructed upon all propositions involved in this case.

There being no reversible error in this record, the judgment is affirmed.

Affirmed.


text:
    Winifred O’Farrell, Appellant, v. Malinda Vickerage and E. F. O’Farrell, Appellees.
    1. Appeal and error, § 1810

      —when Appellate Court may enter final judgment. Where the cause was heard by the trial court, the jury having been waived, the Appellate Court is empowered to render final judgment without remanding the cause.
    2. Attachment, § 312—when finding of trial court as to ownership of property not sustained by the evidence. In an attachment proceeding in which the wife of the. attachment defendant inter-pleaded claiming ownership of the property, a finding by the trial court of property in the attachment defendant held not warranted by the evidence, it appearing, that the property was purchased by the wife with her own money, that the property was in her possession at the time of the levy, that the wife was not liable on the indebtedness for which the attachment suit was brought, and that the Appellate Court on a former appeal of the cause found that the property belonged to her on substantially the same record as upon the present appeal, so far as the evidence is concerned.
    Appeal from the City Court of Pana; the Hon. Paul McWilliams, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed with judgment here.
    Opinion filed October 16, 1913.
    W. H. Chew and E. A. Humphrey, for appellant.
    J. E. Hogar and McQuigg & Dowell, for appellees.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This is the second appeal of this case to this court. The opinion filed upon the first hearing (163 Ill. App. 519) contains a statement of facts and what the evidence proved upon the first trial. At that time the judgment in favor of appellee herein was reversed and the cause remanded for a new trial. Upon calling the case for trial after the cause was reinstated in the trial court, a stipulation was entered into submitting the cause to the court without a jury upon the record of the testimony taken in the first hearing, and so far as this record discloses we find no other or different testimony, and the record is now before this court substantially as it was upon the former hearing with the exception that the case was tried before the court and propositions of law submitted to it instead of submitting the questions of fact to the jury upon the instructions. The former judgment was in favor of the defendant, and a jury not having been waived, upon the reversal of that judgment we were compelled to remand the cause for a new trial, but as the cause now appears, the jury having been waived, this court is empowered to render final judgment without remanding the cause.

From the finding of facts and conclusions arrived at by this court upon the former appeal, all of the property that was contained in the car which was intended to be shipped by appellant to her home in Oklahoma was found to belong to her by this court, and there is no proof that the husband of appellant furnished any money or provided any funds for the purchase of any property contained in this car. The property was at the time of the levying of the attachment writ in the possession of appellant and was taken from her by the officers levying this writ. Her possession was prima facie ownership, and in addition to this prima facie evidence of ownership, as stated in our former opinion, the record discloses that the money and proceeds which were furnished and used for the purchase of the property involved was furnished and provided by appellant; that the indebtedness for which the attachment suit is brought by appellee herein against the husband of appellant was not occasioned and was in no way induced by reason of the fact that appellant’s husband was apparently the head of the family, and was to that extent and that alone at one time in the possession of this property, but the indebtedness which was created in favor of appellee against .the husband of appellant grew out of personal transactions between appellee and the husband of appellant, who was a lawyer, and the misappropriation of funds of appellee by appellant’s husband for which appellant was in no way responsible and of which she had no knowledge. It is contended by appellee that a portion of the funds used in the purchase of the property in question was originally furnished by the husband of appellant; even if this be conceded, the proof is that it was furnished or given her long before the husband of appellant became indebted to appellee and prior to that time it is of no concern to appellee what he did with his money.

The finding of the trial court and the judgment rendered upon that finding is not warranted by the evidence in this record, and being clearly and manifestly against the weight of the evidence, the judgment is reversed and final judgment will be rendered in this court, there having already been four trials of this cause.

The finding of this court will be that the inter-pleader, Winifred O’Farrell, is the owner of and entitled to the possession of the property in question, and judgment will be rendered in this court finding appellant to be the owner of the property in question and awarding its possession to her, and judgment against appellee and for all costs.

Reversed with final judgment in this court.


text:
    Callie P. Bristow, Administratrix, Appellant, v. St. Louis, Springfield and Peoria Railroad Company, Appellee.
    Corporations, § 487

      —who are agents of a railroad company upon •whom process may he served. Under the statute permitting a railroad company to he sued in any county through which it operates a line of railroad, or where it maintains an office, or has an agent for the transaction of its business, the fact that agents of railroad companies other than the one against which suit is brought sell tickets by which persons may travel over the defendant company’s line does not constitute them agents of the latter company so that process may be served upon them.
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Charles S. Gibbs and Oscar J. Putting, for appellant.
    LeForgee, Vail & Miller and George W. Burton, for appellee.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the conrt.

Plaintiff’s intestate received injuries in an accident on the line of appellee’s railroad near the city of Staunton, Macoupin county, Illinois. This action is brought in Macon county, Illinois, under the statute, which permits a railroad to be sued in any county through which it operates a line of railroad, or where it maintains an office or has an agent for the transaction of its business, and the summons in this case was served upon one Lloyd C. Bundy, as assistant ticket agent, and upon Clarence Hill, as ticket agent, for appellee company. Appellee filed a plea to the jurisdiction of the court, the plea alleging that the parties upon whom this summons was served were not at that time and had not been agent or agents of appellee Company. Issue was joined on this plea, a trial was had before the conrt without the intervention of a jury, the issues were found in favor of the defendants and the writ quashed.

The facts as disclosed by the record show that the St. Louis, Springfield and Peoria Railroad Company, appellee, is a corporation owning, controlling and operating a line of railroad from Bast St. Louis to Peoria through the city of Spring-field; that it had no line of railroad in the county of Macon; that the persons on whom this summons was served as agents for appellee Company were in the employ of a corporation owning and operating a line of railroad from the city of Springfield, Illinois, through the county of Macon and city of Decatur to the city of Danville, Illinois; that these two lines of railroad are independent corporations, that they are operated as a part of the system commonly known as the Illinois Traction System. There is no corporation by the name of Illinois Traction System, and although this name is used to designate a system of connecting railroads it is not a corporation, and does not own or control any railroads. The record further discloses that Mr. Hill and Mr. Bundy were- employed by a Company operating from Decatur, Illinois, to Danville, Illinois, that they were not employed by appellee Company and did not represent them in any way. The theory upon which appellant contended that they were agents of appellee Company is because they sold tickets at Decatur by which parties were entitled to travel over both of these lines of railroad from Decatur to any point of destination thereon designated by the ticket, and that this constitutes the parties agents of appellee Company. Further, that the two lines were operated under the name of the Illinois Traction System. The proof that these parties at Decatur were authorized to sell a ticket upon which parties might ride upon the line of railroad which they did represent and arriving at the end of that line were entitled to ride upon another railroad to the. point of destination to which the ticket was sold is not sufficient to and does not show agency on behalf of the second or connecting railroad. It is universally known that railroads operating wholly within one State sell tickets permitting passengers to travel through various States, take and receive shipments of freight to be carried in foreign States by railroads not authorized to do business in Illinois, and to hold that this constituted the agent selling such ticket or receiving such freight an agent of every line of railroad over which the ticket authorized the passenger to travel ór the freight to be shipped would be to hold that' such corporations were violating the laws of this State regarding foreign corporations doing business in this State.

The finding and judgment of the trial court that the parties upon whom this summons was served were not agents of the appellee Company is fully sustained by the proof, and the judgment should be and is affirmed.

Affirmed.


text:
    Sleepy Eye Milling Company, Appellee, v. Conrad Hartman and Conrad Hartman, Jr., trading as Conrad Hartman & Son, Appellants.
    1. Corporations, § 710—what does not constitute transaction of business in this State by an unlicensed foreign corporation. A foreign corporation by employing a general broker to sell its products in this State does not maintain an agent in this State so as to constitute the transaction of business in this State without a license and thereby preclude it from suing in the courts of this State on the contract of sale, the preponderance of the evidence showing that the contract was made and accepted in its home State.
    2. Set-off and recoupment, § 9

      —when claim for damages arising out of one contract cannot be recouped against liability on another contract. In an action by seller on two contracts for the sale of flour to recover for loss resulting from the buyer’s refusal to accept all the flour contracted for after the buyer had received and used a part of the flour delivered under the first contract, the buyer rejecting flour on account of the inferior grade of the flour accepted, and claiming damages to his business by reason thereof, held that the damages sustained by the buyer, if any, were chargeable wholly to the flour received under the first contract, and not having received any of the flour covered by the second contract no such loss or damage could be shown thereunder by way of recoupment.
    3. Set-off and recoupment, § 9

      —tohen claim for damage cannot be set of or recouped. A claim for unliquidated damages arising out of a breach of contract cannot be set off in an action to recover on another contract, and a claim for damages arising out of a former contract cannot be recovered by recoupment.

      4. Sales, § 305

      —rights of seller in making resale when buyer has refused to accept the goods. Where a buyer of flour refuses to accept the same it is the duty of the seller to resell it, and in so doing, he is not confined to the market at the place it was contracted to be delivered to the buyer even though it might have sold for a greater sum at that place, unless the resale was made at a different place with the' intention of injuring the buyer or with knowledge that by making sales at other places a less price would be received.
    5. Sales, § 146

      —right of buyer to reject flour when purchased under two contracts of sale. The mere fact that flour shipped to buyer under one contract of sale was not of the quality of grade or standard purchased does not justify the conclusion that a second shipment under another contract of sale was of the same grade or character as the first.
    6. Sales, § 282

      —what evidence incompetent to show inferior quality of flour sold. In an action by a milling company on a contract for the sale of flour to recover for loss sustained by refusal of buyer to accept the flour, the buyer rejecting the flour on account of its inferior quality, evidence offered by the defendant to show that the plaintiff Company was in the hands of a receiver, and that the flour was degraded and its efficiency damaged by the plaintiff Company to enable certain persons to purchase the flouring mill at a reduced price at the receiver’s sale, held, incompetent as having no bearing on the question at issue.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Smith & Friedmeyer, for appellants.
    Alonzo Hoff, for appellee.

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

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This "is an action brought by plaintiff to recover from defendants for shipments of flour purchased by defendants from plaintiff and which defendants refused to receive or accept, and which were afterwards sold by plaintiff, for account of defendants, at a loss. This action is to recover that loss. The trial below resulted in a judgment against defendants for $1,-835.06.

The defendants are halters in the city of Springfield. Plaintiff is a corporation located in Minnesota, manufacturing flour. There were two contracts for purchase of flour by defendants from the plaintiff, the first one was a purchase of six hundred barrels at a contract price of $5.35 per barrel.; the second, made considerable time after the first, was a purchase of sixteen hundred barrels at a price of $5.50 per barrel. Prior to these purchases, defendants had been using a flour manufactured by plaintiff known as the Sleepy Eye Cream flour. Defendants received four hundred and twenty-five barrels of flour under the first contract of purchase, and used the same in their bakery at Springfield. This flour not proving satisfactory, and as defendants contend, and not fulfilling the contract of purchase, they refused to accept or receive the remaining one hundred and seventy-five barrels of that purchase, and after their experience with this first purchase or shipment they then notified plaintiff that they could not accept or receive the second purchase of sixteen hundred barrels, and repudiated that contract. Plaintiff shipped the flour in accordance with their contract to Springfield, Illinois, and after defendants had refused to receive or accept it on its arrival at Springfield, plaintiff reshipped all of the last purchase and one hundred and seventy-five barrels of the first purchase to St. Louis, Missouri, and various points in Indiana and Ohio and sold the same upon the market. Their loss upon the sale of the first contract was $175, their loss on the second contract was $1,835.-06.

The declaration is upon both these contracts, alleging the purchase by defendants and the failure to receive and accept the same, and the reshipment by plaintiff and loss sustained. Defendants pleaded that the plaintiff was a foreign corporation not licensed to do business in this State, that by reason thereof no recovery could be had; they also allege by their pleas that the flour contracted for by them was a brand of flour of well known reputation and had heretofore been of a certain standard and-grade, and that -tliey were entitled to receive that grade of flour which they had contracted for, and that the shipment of flour made by plaintiff was not of that grade'or standard, by reason thereof defendants were injured in their business by reason of the attempt to use the poor grade of flour which they had accepted under the first-contract of purchase, and they claim this damage by way of recoupment and set-off.

The trial court refused to permit defendants to show damage to their business as a set-off against the purchase of this flour and denied them the right to recoup any such damages. Defendants insist that this action of the court was such error as to require a reversal of this case. They insist also that the judgment is erroneous because the evidence shows that the plaintiff corporation was not licensed to do business in this State, and that they maintained an agent in this State for the sale of their flour, which constituted the transaction of business in the State of Illinois without a license. They also insist that the judgment is erroneous for the reason that it is not sustained by the evidence, and that the court erred in the admission and rejection of evidence and in the giving and refusing of instructions.

Upon the contention that the plaintiff Company is a foreign corporation and not licensed to do business in this State, the contention is untenable for the reason that the record discloses that the contract of sale was made and the acceptance of the same was done in the State of Minnesota at the home of the plaintiff corporation and not in Springfield, Illinois, and the evidence does not disclose that plaintiff had or maintained any agent in the State of Illinois through whom these contracts were made, but that the party who defendants insist was an agent and through whom the contracts were made was a general broker, not only handling the flour of the plaintiff Company but of other mills, and the greater weight and perponderance of the evidence discloses that the contract was not made in the State of Illinois. The statute of this State regarding foreign corporations cannot be applied. Black-Clawson Co. v. Carlyle Paper Co., 133 Ill. App. 61; Havens & Geddes Co. v. Diamond, 93 Ill. App. 557.

There is no contention that defendants ever examined or handled in any way any of the flour shipped under the second contract of purchase, but as to the condition, standard and value of that flour they rely wholly upon their experience with the first shipment. Their business was not, and it cannot be contended that their business was in any way injured or damaged by reason of the second contract or shipment of flour under that contract, as none of it was used by defendants, and the damage, if any was sustained, is wholly chargeable to the flour received and accepted under the first shipment; and under this state of facts no such loss or damage could be shown by way of recoupment in an action to recover for the second contract of purchase, and the court did not err in rejecting this evidence. A claim for unliquidated damages arising out of a breach of contract cannot be set off in an action to recover on another contract and the damage claimed having grown out of a former contract cannot be recovered by recoupment. Keegan v. Kinnare, 123 Ill. 281; Clause v. Bullock Printing Press Co., 118 Ill. 612.

The defendants do not attempt in any way to contradict or deny the amount of the loss sustained by plaintiff upon the resale of this flour, but insist that it was its duty and plaintiff was required to have sold this flour in the city of Springfield, instead of making the shipment to other points; this position cannot be maintained under the law. After defendants had refused to accept or receive this flour it then became the duty of the plaintiff to resell it, and they were not, in so doing, confined to the market at Springfield, even though the flour might have been sold for a greater sum in the city of Springfield than it did at the points where plaintiff shipped it, unless such reshipment and sale was done with the intention of injuring the defendants or with the knowledge that by making sales at other places a less price would be received.

Defendants do not attempt to deny or dispute the amount of the loss sustained by plaintiffs by reason of the resale of this flour or that the resale of the flour purchased by defendants under the second contract amounting to $1,835.06; the judgment recovered by plaintiff is only for this. amount and it is evident that by their verdict the jury did not allow plaintiff any damage occasioned by the refusal of the defendants to accept the balance of the shipment under the first contract, and it is further evident that the jury allowed to the defendants all damages claimed by them under the first contract of purchase, and the ruling of the court concerning the claim of set-off or recoupment has not prejudiced the defendants. The mere fact that the flour shipped by plaintiff to the defendants under the first contract of purchase was not the quality of grade or standard purchased would not justify the conclusion arrived at by the defendants that the second shipment was of the same grade or character as the first. The preponderance of the evidence is that the grade of flour shipped by plaintiff under the second contract of purchase was first-class flour and the quality of the usual grade and fully up to the standard contracted for by defendants.

The defendants also insist that the court erred in refusing to permit them to show that the mill of the plaintiff Company was in the hands of a receiver, and that the flour manufactured by it and shipped under these contracts was purposely degraded and its efficiency damaged by the plaintiff Company for the purpose of permitting certain parties to purchase the plaintiff’s mill at a receiver’s sale at a greatly reduced price; this evidence could have had no bearing upon the questions at issue in this case, and was wholly incompetent for the purpose for which it was offered, and was properly rejected by the trial court.

Although considerable criticism is made of the instructions' given and refused, upon careful examination of the instructions given, modified and refused in this case, we find that the criticism is not warranted, and that the jury was fully and correctly instructed upon all propositions involved, and that the court committed no reversible error therein.

Finding no error in this record prejudicial to the defendants, the judgment is affirmed.

Affirmed.


text:
    E. K. Byerly, Appellee, v. Wilbur Jones and John White, Appellants.
    1. Property, § 11

      —when standing corn is personal property. Corn standing in the field after it has matured and before it has been husked is personal property.
    2. Sales, § 433

      —when subsequent purchaser of corn entitled thereto in replevin as against a prior purchaser. In replevin against two defendants to recover the possession of standing corn alleged to have been sold to plaintiff by a tenant prior to the execution of a bill of sale thereof by the tenant to a third person who had placed one of the defendants in possession and had afterwards executed a bill of sale to the other defendant, refusal of court to give a peremptory instruction for defendant held error, the plaintiff never having taken possession of the corn, but wholly relied upon plaintiff to husk and deliver it, and the defendants having taken possession under the bill of sale which was bona fide and executed without any knowledge of plaintiff’s claim.
    Appealed from the Circuit Court of Vermilion county; the Hon. William B. Sciiolpield, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.

      Charles Troup, for appellants.
    A. B. Dennis, for appellee.

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

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Appellee was a grain buyer operating an elevator at Gatlin, Illinois. He claims to have purchased from Charles B. Fuller, a tenant on a farm belonging to Arthur Findley, twenty acres of corn at a price of fifty cents per bushel. He further contends that Fuller had been authorized by his landlord, Findley, to sell the entire field of com and divide the money, and that he paid Fuller one hundred and eighty dollars on his share of this corn at various times after he bought the corn. At the time of the purchase of the com by appellee from Fuller the corn was standing in the field unhusked, and it was part of the agreement that Fuller was to husk the com at the proper time and deliver it to appellee at his elevator at Gatlin. Fuller delivered to appellee in all four loads of this com. Fuller was indebted at that time to the Danville National Bank, and he also owed a rent note which was in the hands of George H. Milemore, and he executed to one Balph B. Holmes, trustee, a bill of sale of all of his property for the stated consideration of twelve hundred dollars. Upon the execution of this bill of sale, Holmes, as trustee, took possession of all the property described therein, including, the com standing in the field and unhusked, and placed the property in the possession of one Wilbur Jones, one of the appellants herein; Holmes trustee, afterwards executed a bill of sale to John White, appellant herein.

Appellee replevined the com, making White and Jones defendants in the replevin suit. He recovered a judgment below and appellants appealed therefrom.

The facts in this case are not disputed so far as they in any way materially affect the rights of the parties herein, and as a consequence thereof the only question involved is one of law. Although appellee made the first attempt to purchase the property from Fuller, the corn was then matured in the field and only needed to be husked to be delivered, and it was therefore personal property. Appellee never in any way attempted to take possession of this corn, but relied wholly upon the promise of Fuller to husk and deliver it to him and he was not to have possession until it was so delivered to him at his elevator in Gatlin. Holmes, on the other hand, as soon as he obtained a bill of sale for this property reduced it to possession; he had no notice whatever of any interest that appellee claimed to have therein by reason of the pretended purchase by him. The sale to Holmes and from Holmes to White were bona fide sales without any knowledge whatever of the claim of appellee, and they having reduced their purchase to possession and secured absolute control over the property are the owners of that property as against appellee in this replevin suit. The trial court should have given the peremptory instruction to the jury as requested by defendants; to refuse it was error. Davis v. Shepherd, 87 Ill. App. 467.

The judgment is reversed and the cause remanded.

Reversed and remanded.