text:
    Oscar B. Wylie, Individually and as Trustee, Appellant, v. Allen S. Bushnell et al., Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Habéis, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Bill in chancery filed by Oscar H. Wylie, individually and as trustee under the last will and testament of Sherrill P. Bushnell, deceased, complainant, against Allen S. Bushnell, Caroline Bushnell, Emily J. Wylie, Samuel M. Wylie, Winifred White, Howard Bushnell, Ethel B. Waring, Horace L. Bushnell and Emily Bushnell, defendants, asking that a report of the complainant’s acts and doings as trustee be approved. After the filing of the bill, Allen S. Bushnell filed his bill in chancery in the same court, asking the removal of the complainant as such trustee for reasons set forth in the bill. The two causes were later consolidated for hearing and determination.
    The court’s decree, in which it was first, in general terms, found that appellant had not faithfully performed his duty as trustee, contained special findings, the substance of which is as follows:
    1. That complainant had never made an inventory of the funds that had come into his hands as trustee and had never filed in the County Court any proper inventory as executor from which the amount which should be charged to him as trustee can be ascertained.
    2. That he had never kept any books of accounts as such trustees; that the only data kept by him of his receipts and disbursements as such trustee consisted of letters, statements, receipts and other memoranda kept in envelopes, some of which were originals and some duplicates, from which no reliable statement could be made showing the true condition of his accounts as such trustee.
    3. That a number of reports filed by him in the County Court in the belief that they were correct differed so widely from each other and from the report filed with his bill as to indicate his inability to state a correct account.
    4. That by lack of due diligence a debt of $240 due the estate from a tenant at the time of the death of the testator was lost.
    5. That he released without authority or the consent of the residuary legatees a mortgage and the indebtedness secured thereby due the estate from Allen S. Bushnell and Caroline Bushnell to the amount of $1,250.
    6. That he has never had an appraisement of the personal estate of the testator or paid all the debts of the estate or settled the estate in the County Court, although eight years have passed since the death of the testator, although to do so was necessary in order to determine the amount with which he should charge himself as trustee.
    7. That he has never made any detailed statemfent in writing to the cestuis gue trust of the amounts of his receipts or disbursements as trustee, but has reported to them such facts only verbally and in a general way.
    8. That the report submitted with his bill is not a proper or sufficient report.
    9. That by reason of his failure to discharge his duties as executor and trustee, ill feeling exists between him and some of the cestuis gue trust.

    10. That he has taken credit for $2,117.38 for his services as trustee and that one-half of that amount, or $1,058.69, is adequate.
    11. That he should be removed as such trustee and a suitable person appointed in his stead.
    The decree then ordered that complainant charge himself with the $240 he so negligently failed to collect and with the $1,058.69 with which he has overcharged the fund for his own compensation; that the said Allen S. and Caroline Bushnell pay into court for the benefit of the trust fund the $1,250 which was improperly released to them by complainant, together with accrued interest thereon; that complainant as executor promptly close up the estate in the County Court and then file in the Circuit Court a true inventory of all the property, both real and personal, in his hands as trustee and report, showing in detail clearly every item of money that has come into his hands as such trustee and every item of expenditure of the same with the date when the person to whom and the purpose for which the same was paid up to January 1, 1910, and a second report of the same kind not later than April 1,1915, covering the time from January 1, 1910, to the date of such second report; that upon such inventory and reports being approved, another trustee will be appointed to whom appellant shall turn over and transfer all the funds and property in his hands as trustee, and that he shall then be relieved from the further execution of the trust; that complainant’s bill be dismissed for want of equity and that he personally pay the costs 'of the litigation.
    Abstract of the Decision.
    1. Trusts, § 125

      —when decree for removal of trustee and accounting proper. On a bill to remove a trustee, a decree finding the trustee incompetent to act as such and ordering him to render a proper account, to charge himself with a debt due -the estate, which was lost because of his lack of diligence, with an overcharge for his services, and to turn over the funds in his hands to a new trustee to be appointed by the court, held justified by the evidence and warranted by the law applicable to the facts shown.
    2. Trusts, § 125*—when trustee may he removed. A trustee who is shown to be incompetent to act as such, may be removed though there is no showing that he has been dishonest in the management of the estate.
    3. Executors and administrators—when cancellation of debt by executor fraudulent. The cancellation by an executor of a debt due the estate, though made with the consent of certain legatees, held in fraud of the» rights of the residuary legatees and justifying a decree ordering the debtor to pay such debt to the estate.
    4. Trusts, § 218*—when compensation of trustee reduced. A reduction of a trustee’s compensation for services to half what he had taken credit for, held not an abuse of the discretion lodged in the court, where he was shown to have been guilty of carelessness and lack of diligence in the management of the estate.
    Green & Palmer, for appellant.
    Cloud & Thompson, Beach & Trapp, Schneider & Schneider and Frank Bindley, for appellees.

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

   Mr. Justice Graves

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Martha E. Hurst, Administratrix of the Estate of Uriel Hurst, Appellee, v. Madison Coal Corporation, Appellant.
    1. Negligence, § 166

      —how negligence causing death may he proved. In an action for death, the defendant's negligence, alleged to have been the cause thereof, and the connection between such negligence and the death need not be shown by eyewitnesses, but may be proved by circumstantial evidence.
    2. Negligence, § 191*—when question of law. Negligence and proximate cause are not questions of law unless the evidence leaves no opportunity for two fair minds to differ on what the facts were.
    3. Mines and minerals, § 182*—when negligence and proximate cause questions for jury. In an action for death of a mule driver in a mine, evidence held not so one-sided as to constitute the defendant’s negligence and proximate cause of the injury questions of law for the court.
    4. Mines and minerals, § 150a*—when evidence erroneously admitted. In an action for the death of a mule driver in a mine, caused by his being knocked off his car and run over by it, evidence that a few days thereafter another driver was seen standing on the rear end of his car, instead of on the front end, as was the deceased at the time of the accident, and that the car ran against the mule and bumped him, held prejudicial to the defendant as tending to show that riding on the front end of the car was dangerous, and that the effect thereof was emphasized by improper remarks to the jury by the plaintiff’s attorney.
    5. Mines and minerals, § 191*—when instruction on duty of-mine owner erroneous. In an action for the death of a mule driver in a mine, an instruction as to the duty of a mine owner to furnish safe mules and cars, held erroneous in making no reference to" the connection between such failure of duty and the accident.
    6. Mines and minerals, § 188*—when instruction improper as invading province of jury. An instruction charging that if a mine owner failed to use reasonable care to furnish reasonably safe and sound mules in its mine it was negligent, held erroneous as such question was for the jury.
    7. Mines and minerals, § 191*—when instruction on negligence in furnishing unsafe mule for work erroneous. An instruction permitting a jury to find a mine owner guilty of negligence if it knowingly furnished an unsafe mule for work in its mine, without requiring a finding that such mule was unsafe for the particular purpose for which it was furnished, held erroneous.
    8. Mines and minerals, § 191

      —when instruction on liability of mine otoner for death of servant erroneous. An instruction permitting the jury to find a mine owner liable for the death of a mule driver in its mine if it furnished unsafe mules for hauling cars 'in its mine, without requiring them to find that the particular mule furnished the driver was unsafe, held erroneous, as it permitted a recovery though the negligence might not have been the proximate cause of the death.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Graham & Graham, for appellant.
    William St. J. Wines, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

Appellee’s intestate was killed in the coal mine of appellant. He was a mule driver and at the time of his injuries he was engaged in hauling a loaded coal car along a track in which there was a decline. He was last seen before the accident at the top of the decline, standing on the front end of the car behind the mule. When he was found after the accident he was underneath the car, crumpled up with his head beneath the rear axle or boxing, apparently having been run over by the front wheels of the car. He died soon after he was removed from beneath the car, and never made any statement as to how the accident occurred. It is not claimed that any one saw the accident. The evidence shows that he was an experienced driver, and that he was accustomed to be careful for his own safety. There is evidence tending to show that the mule he drove was old and stiff and accustomed to stumble, that the track was rough, the place dark and the spaces between the ties not filled.

Appellant was not operating under the Workman’s Compensation Act. Appellee obtained a verdict and judgment for $10,000.

Beversal of this judgment is asked for the assigned reasons that the verdict is manifestly against the weight of the evidence; that there is no evidence of negligence on the part, of appellant; that there is no evidence to show that the deceased came to his death as the proximate result of anything, done or left undone by appellant; that, in any event, the question of whether there is any connection shown by the evidence between the. negligence charged and the injury is one of law for the court; that the damages awarded were excessive; that the conduct of counsel for appellee was such as to prejudice the rights of appellant and that the court gave an erroneous instruction.

It is not always necessary or possible for a plaintiff to show negligence by eyewitnesses or to make the connection between the negligence of a defendant and the injury by persons who saw the transaction. It may be proven by circumstantial evidence. If such evidence is sufficient in the eyes of the law to fairly warrant a finding that it exists a verdict based on it will not be set aside on appeal because it is not supported by positive proof. It is for the jury to determine that fact from the evidence. Negligence or proximate cause are not questions of law, unless the evidence leaves no opportunity for two fair minds to differ on what the facts are. Brunnworth v. Kerens-Donnewald Coal Co., 260 Ill. 202; Waschow v. Kelly Coal Co., 245 Ill. 516.

We do not feel warranted in holding that the facts in this case as disclosed by the evidence are so one-sided as to constitute the question of appellant’s negligence, or the question of proximate cause, questions of law for the court.

Our attention is called to two manifest errors in this record. The first is in permitting appellee, over objection, to prove that some days after appellee’s decedent was killed, the witness Joseph Danis observed a driver who was using the same mule used by the deceased when he was injured, at the same place; that such driver was standing on the rear of the car instead of on the front where deceased stood, and that the car ran against the mule and bumped him repeatedly. Whether these circumstances were experiments, or what induced this driver to ride behind instead of in front, or whether the car then being used was the same car or loaded in the same way, or the roadbed was in the same condition, there is no proof. In the argument of appellee’s attorney to the jury he emphasized this evidence, saying that this new driver “rode the hind end of the car because Hurst had been killed there a few days before,” thereby plainly intimating that the new driver thought the place was dangerous. It is impossible to say just what influence this evidence and the argument based upon it had on the jury, but it seems apparent that it must have been prejudicial.

The other fatal error was committed in giving to the jury the first instruction requested by appellee. It was as follows:

“The court instructs the jury with reference to the first count of the declaration that it was the duty of the defendant to use reasonable care to furnish and provide reasonably safe and sound mules for hauling its coal cars in view of the physical conditions of its mine: And in this case, if you believe from a preponderance of the evidence that the defendant failed to perform that duty, as charged in the first count of the declaration, then you may find that such failure, if any, was an act of negligence on the part of the defendant.”

By it the jury are told, in substance, that if appellant did not use reasonable care to furnish “reasonably safe and sound mules for hauling its. coal cars” then the jury could find it guilty of negligence, without any reference being made in the instruction to whether the failure to furnish reasonably safe and sound mules had anything to do with the accident or not. It is further faulty because it advised the jury that such failure to use reasonable care to furnish such reasonably safe and sound mules was negligence, when it was for the jury to determine whether such failure was negligence or not. It was further faulty because it left the jury at liberty to find appellant guilty of negligence if it knowingly furnished a mule that was unsound in some particular that in no way affected its usefulness or safety for the purpose of hauling coal cars. It was further faulty because under this instruction if an unsafe and unsound mule was furnished by appellant to haul coal in the mine on other cars, on other tracks and driven by another driver at another time, it would be proper for the jury to find it guilty of negligence that was the proximate cause of the death of the deceased. It was further faulty because it left the jury to determine what duty the first count in the declaration charged appellant failed to perform.

In cases as close on the facts as this one, it is essential that instructions should correctly state the law.

The judgment of the Circuit Court is reversed and the cause remanded to that court.

Reversed and remanded.


author: Mb. Justice Graves

text:
    George I. Mathews, Appellee, v. Lewis Schuessler and Herman Schuessler, Appellants.
    1. Pleading, § 349

      —when leave to file additional pleas granted. Where issues have been made upon a declaration and plea, it is a matter of discretion with the trial court whether leave to file additional pleas will be allowed, and when such additional pleas present new issues and tend only to confusion and delay, leave to file them should be denied, unless some -showing is made of some reasonable excuse why the same was not filed earlier.
    2. Pleading, § 377*—when plea stricken from files. It is not error to strike from the files a plea that has been filed without leave of court.
    Appeal from the County Court of Scott county; the Hon. F. C. Funk, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    James Callans and J. M. Riggs, for appellants.
    John A. McKeene, for appellee.

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

   Mb. Justice Graves

delivered the opinion of the court.

This case was begun to the January term, 1915, of the County Court of Scott county, which convened on January 11th of that year. On that day appellants filed in that court their plea of the general issue. Thereupon the case was set for trial for January 25, 1915, at 9 o’clock a. m., and court adjourned to that time. On the next day appellants, without leave of court, filed a second plea of want of consideration. On the convening of court on January 25th the second plea so filed was on motion of appellee stricken from the files, and a motion of appellant for leave to file a third plea of failure of consideration was denied. No showing was made why the second and third pleas were not filed with the plea of general issue. The case was tried on the issues made by the declaration and the plea of general issue, and resulted in a verdict for appellee, followed by a judgment for him against appellants for $310.30. Appellants contend that it was error to strike the second plea from the files and to deny their motion for leave to file on the eve of the trial the third plea.

When issues have been made upon a declaration and a plea, it is a matter of discretion with the trial court whether leave to file additional pleas will be allowed, and when such additional pleas present new issues and tend only to confusion and delay, leave to file them should be denied, unless a showing is made of some reasonable excuse why the same was not filed earlier. Davis v. Lang, 153 Ill. 175-180; Wilson v. Wilson, 125 Ill. App. 385-388; Glos v. Patterson, 209 Ill. 448-450; Glos v. Swanson, 227 Ill. 179-181.

It is not error to strike from the files a plea that has been filed without leave of court. Edbrooke v. Cooper, 79 Ill. 582-584; Millikin v. Jones, 77 Ill. 372-374.

Under the facts in this case, there was no error in the rulings complained of. Judgment affirmed.

Affirmed.


text:
    Road District No. 5, Scott County, Illinois, Appellant, v. Scott County Levee & Drainage District, Appellee.
    1. Drainage, § 94

      —when mandamus does not lie to compel commissioners to construct bridge. Where a contractor, having a contract with drainage commissioners for the construction of a levee, dug a ditch across a highway in direct violation of the terms of his contract and against the express instructions of the commissioners, held that a road district, under whose jurisdiction the highway was, could not by mandamus compel the commissioners to construct a bridge across the ditch.
    2. Mandamus, § 6*—when writ of awarded. A writ of mandamus will not be awarded except when a clear right is shown to have the thing done which it is sought thereby to have done.
    Appeal from the Circuit Court of Scott county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1915. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    John McKeene, Ray Anderson and B. H. Matthews; for appellant.
    J. M. Riggs and Williams & Williams, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

Appellant, a road district, filed its petition in the Circuit Court of Scott county for a mandamus to compel appellee, a levee and drainage district, to construct and maintain a bridge or other suitable crossing over a ditch which the petition alleges was excavated across the highway by appellee. Issues were formed on the petition and the answer thereto and, after a hearing, the prayer of the petitioner was denied and judgment was rendered against the petitioner for costs. The petitioner appeals.

The weight of the evidence strongly tends to show that appellee, acting through its duly authorized commissioners, let a contract for the construction of a levee along a line that crossed a highway in the district controlled by appellant, at a point near which it is now sought to compel appellee to build the bridge or crossing in question; that such contract was later assigned to one Fred F. Traut, who proceeded to perform it; that it was understood between Traut and appellee’s commissioners that the work should be performed by the use of a machine called a ‘ drag line, ’ ’ which is “an excavator that operates on the land as distinguished from a dredge boat which floats”; that neither the plans or contract contemplated making any excavation in the roadway, but, on the contrary, it was expressly understood between the commissioners of appellee and Traut, that no excavation should be made therein; that the work was performed by the use of a drag line until it was completed from the starting point to the roadway in question, when the machine was raised and conveyed over the roadway without disturbing it, and the construction of the levee on the other side of the road was commenced and was continued with the drag line until that machine gave out, when Traut, in violation of the express understanding between himself and appellee’s commissioners, undertook to complete the work with a floating dredge which he had been operating on or near the Illinois River; that when he had brought his dredge to the road in question, the commissioners of appellee met Traut and expressly directed him not to cut through the road; that the contract provided that the work should be- done under the direction and subject to the approval of appellee; that in spite of, and contrary to, the express directions of appellee’s commissioners and in their absence, Traut cut a trench through the highway wide enough to permit the passage of his dredge and took it through; that it was not necessary to cut through the road in order to construct the levee according to contract, but was a mere matter of convenience for Traut; that after-wards Traut filled in the cut through the road with earth to about, if not quite, its original height and width; that later an unusual amount of water came down and washed out the fill; that Traut again filled it; that after it was so filled the road was used by the general public for travel and that some weeks after it was filled it again washed out.

The theory of appellant in the frame of its petition, at the trial and in its argument here, is that appellee excavated the cut across the road at the point in question. This the evidence fails to show, but it does show that Traut did it purely for his own convenience and in open violation of the express directions of appellee’s commissioners and in their absence, and when it was not necessary in the doing of the work contracted for. Upon the facts disclosed in this record it cannot be held that a clear right to compel appellee to build the bridge or crossing desired is shown. Under the familiar rule that a writ of mandamus will never be awarded except when a clear right is shown to have the thing sought, done, the writ in this case was properly denied. The authorities cited by appellant to the effect that where excavations across a highway are made by a drainage district it must construct a bridge or suitable crossing over it are not in point. The ditches in those cases were part of the drainage system contemplated by those who formed the district, and were constructed hy the district.

In the case at bar neither appellee nor its commissioners or Traut were authorized to excavate across the road in question. Even if appellee’s commissioners had made or directed Traut to make the excavation complained of, the same not being necessary in the building of the levee, it would still be doubtful if appellee would be liable for such acts, or bound to restore the road, or bridge the excavation, for it has been held that a drainage district is not liable for unauthorized acts of its commissioners. Bradbury v. Vandalia Levee & Drainage Dist., 236 Ill. 36-46.

Considerable has been said in the argument of this case as to who is responsible for diverting the water that runs through the excavation in question, and who is liable to respond in damages for the injury to the road. Those are questions not involved in this litigation, and we do not decide them. What we do hold is that the averments of the petition are not supported by the proof, and that appellant has not by this record shown a clear right to the relief sought by its petition. The judgment of the Circuit Court is therefore affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois ex rel. Margaret Cook, Appellee, v. Alexander Campbell, Appellant.
    1. Bastards, § 22

      —what evidence sufficient to warrant conviction. A preponderance of the evidence is sufficient to warrant a conviction in a bastardy case.
    2. Bastards, § 22*—when evidence sufficient to sustain conviction. Evidence in a bastardy case held sufficiently corroborative of the evidence of the complaining witness to justify a conviction.
    3. Witnesses, § 207*-—when extent of cross-examination matter of discretion of court. The extent to which cross-examination of a witness will be permitted is, to a large degree, a matter in the sound discretion of the trial court, and its rulings in connection therewith will not warrant a reversal of a judgment unless such discretion has been abused.
    4. Witnesses, § 225*—when cross-examination not unduly restricted. Cross-examination of the prosecuting witness in a bastardy case held not unduly restricted.

      5. Instructions, § 96

      —when instruction on credibility of witnesses erroneous. In a bastardy case, an instruction to the effect that when a witness wilfully swears falsely to any matter material to the issue the jury may disregard his entire testimony, except where he is corroborated by other credible evidence, without adding the phrase “or by facts and circumstances proven on the trial,” held erroneous.
    6. Appeal and error, § 1241*—when party cannot complain of error in instruction. A party cannot complain of an error in an instruction where the same error was contained in an instruction given at his instance.
    7. Bastards, § 34*—when assumption of facts in instruction proper. An instruction given in a bastardy case to the effect that if the jury believe from the evidence that the defendant is the father of the child they should find him guilty, even if the prosecuting witness was mistaken as to the month and day when she had sexual intercourse with him, held not erroneous in that it assumed that if the defendant was the father of the child he had had sexual intercourse with its mother.
    8. Bastards, § 34*—when instruction on proof of alibi correct. An instruction in a bastardy case to the effect that, in order to be availing to the defendant, proof of his alibi must cover the whole time during which conception might have taken place so as to render it impossible that the defendant could have committed the act, held correct.
    9. Bastards, § 64*—when giving of erroneous instruction harmless error. In a bastardy proceeding, the giving of an instruction telling the jury what the defendant would be required to do if he were found guilty, held improper, but not reversible error.
    Appeal from the County Court of DeWitt county; the Hon. Peed C. Hill, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    L. W. Ingham and Herrick & Herrick, for appellant.
    L. O. Williams, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

This is an appeal by the defendant in bastardy proceedings from a judgment of conviction in the County Court of DeWitt county.

While the testimony of the defendant and the prosecuting witness is sharply conflicting on the question whether sexual intercourse had taken place between them, the evidence discloses that they had the opportunity for such relations at a time when conception could have taken place, as shown by the date of the birth of the child in connection with the usual period of gestation; that the defendant was the first person, so far as the evidence discloses, that the prosecuting witness told of her condition after she found she was pregnant; that he advised with her as to what was best to do; that he arranged a meeting between her and a nurse in a city some distance from the place where the prosecuting witness was then residing, and in which she was a total stranger; that he accompanied her part way on her journey to meet the nurse; that he gave her a quantity of money to assist her in defraying her expenses; that the nurse took her to a doctor who was asked to perform an abortion, but who refused to do so; that upon such refusal, she reported to the defendant the result of the visit to the doctor; that the defendant then sent her back to the nurse who secured a place in the country for her to work for a time; that he undertook to keep the place of her retirement secret, and when approached by a detective who was. seeking to locate her, at first refused to tell him where she was.

A preponderance of the evidence is sufficient to warrant a conviction in a bastardy case, and we think these circumstances were sufficiently corroborative of the evidence of the complaining witness to fully justify the verdict of guilty found by the jury.

Appellant complains that his cross-examination of the complaining witness was unduly restricted by the court. The extent to which the cross-examination of a witness shall be permitted is always to a large degree a matter of sound discretion with the trial court, and rulings of the court either denying or permitting extended cross-examinations will not warrant the reversal of a judgment unless such discretion has been abused. In the case at bar, it is apparent from reading the examination of the prosecuting witness that she was a woman of less than average mentality. Her direct examination covers about sixteen pages of the record, while the cross-examination covers one hundred and twenty-three pages and was of a most searching character. While some questions were not answered at all, others were answered in a way to plainly show that they were not understood, and in answering still others the witness manifestly followed the lead of the cross-examiner like one in a trance. On the whole the ground was fairly covered. If there were any rulings of the court that were technically erroneous, no harm was done appellant thereby.

Complaint is made of the conduct of counsel for appellee. We see nothing in the matters pointed out calculated to prejudice appellant.

The court gave four instructions for the People that are complained of. One of these because in applying the rule that when a witness swears wilfully falsely to any matter material to the issue being tried, the jury may disregard his entire testimony, except where he is corroborated by other credible evidence, or by facts and circumstances proven on the trial, the words italicised were omitted. The criticism is well taken, but appellant is in no position to take advantage of the error because in an instruction prepared by him and given at his instance, numbered “14,” the identical error is committed.

Another of these instructions told the jury in substance that, if they believed from the evidence that the defendant was the father of the child, they should find him guilty even if the prosecuting witness was mistaken as to the month or day when she had sexual intercourse with him. This instruction is criticised because it assumes that the defendant had had sexual intercourse with the prosecuting witness. It is assumed in the instruction that, if the defendant was the father of the child, he had had sexual intercourse with its mother. This assumption is not unwarranted. History relates but one circumstance when the father of a child did not have sexual intercourse with the mother, and it is safe to assume that history will not repeat itself in that particular.

Another of the criticised instructions is on the subject of alibi. By it the jury were told that in order to be availing to the defendant the proof of the.alibi must cover the whole of the transaction in question so as to render it impossible that the defendant could have committed the act. The instruction correctly states the law. The holdings in People v. Welch, 143 Ill. App. 191, and in Briggs v. People, 219 Ill. 330, cited by appellant, are not in point in this case. The instructions in those cases were condemned because the jury were thereby informed that the proof of alibi must be satisfactory. In this case the complaint is that the instruction announced the law to be that the proof must cover the whole time during which conception might have taken place.

Another instruction informed the jury of what the consequences of a verdict of guilty would be and what the defendant would be required to do if he was found guilty. While the jury had nothing to do with fixing the punishment of the defendant if he was found guilty, and the instruction should not have been given, we are aware of no decision of any court of review in this State holding that the giving of such an instruction would be sufficient alone to warrant the reversal of a judgment. People v. Waibel, 189 Ill. App. 30.

The judgment is therefore affirmed.

Judgment affirmed.


text:
    Antone Nagalil, Appellee, v. Shoal Creek Coal Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by Antone Nagalil, plaintiff, against the Shoal Creek Coal Company, defendant, for damages for personal injuries. From a judgment for plaintiff, defendant appeals.
    The plaintiff was a miner in the employ of defendant. At the time in question he was acting as a helper to a timberman, whose duty it was to place timbers in the mines to support the roof where necessary. At a certain place in the mine some workmen discovered what they considered a dangerous place in the roof and reported it to the mine boss. When plaintiff next went into the mine, the night boss directed him and the timberman with whom he was working to go to the place in question and “timber” it. They went to the place directed. Before they began to work they looked for, but found no examiner’s mark to indicate a dangerous condition. They then pulled down some loose rock, and prepared to timber the roof. While they were there working, some loose rock and slate fell upon plaintiff, and he was painfully injured. His hip was dislocated, his head, shoulder, side and knee were bruised, and he was injured internally. _ He was laid up for three months.- Three years later, at the time of the trial, he was still suffering from his injuries.
    W. B. McBride, for appellant; Miller & McDavid, of counsel.
    C. H. Burton and D. B. Kinder, for appellee.

      Abstract of the Decision.
    1. Mines and minerals, § 82

      —who within Miners’ Act. The provisions of the Miners’ Act apply to a timberman in a mine as well as to a miner proper.
    2. Mines and minerals, § 176*—when evidence sufficient to show nonexistence of danger mark in mine. Proof that a timberman in a mine looked for a danger mark before he started work at a certain place in the mine and found none, held sufficient to warrant a finding that no such mark was there, in the absence of proof that the mine had been examined and a danger mark placed as required by the statute.
    3. Mines and minerals, § 181*—when negligence as proximate cause of injury question for jury. In an action by a timberman in a mine for injuries sustained as the result of the roof falling upon him, the question whether failure of the mine owner to have the place properly marked as dangerous was the proximate cause of the injury, held for the jury.
    4. Damages, § 115*—when judgment for personal injuries not excessive. A judgment for five hundred dollars for injuries to a timberman in a mine earning three dollars a day, who was laid off for three months as the result of the accident, and who suffered dislocation of a hip and various bruises, held not excessive.
    5. Damages, § 200*—when instruction correct. In an action by a timberman in a mine for damages for personal injuries, an instruction allowing the jury to assess damages for physical pain and suffering, held correct.
    6. Mines and minerals, § 194*—when instruction on liability of mine owner properly refused. In an action for personal injuries, to a timberman in a mine, an instruction that although the mine examiner failed to perform the duty imposed upon him by law, yet if he was not conscious of such failure no liability would attach to the mine owner, held properly refused.
    7. Instructions, § 137*—when properly refused. It is not error to refuse instructions where there is no evidence on which they can be based.
    8. Costs, § 73*—when cost of additional abstract properly taxed to appellant. Where the abstract filed by the appellant was insufficient and an additional abstract was filed by the appellee, held that the cost of such additional abstract was properly taxed to the appellant.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Norman Bennett, Appellee, v. County of Clark, Appellant.
    1. Counties, § 166

      —when liable on contract for printing of ballots. In an action by a printer against a county on a contract with the county clerk for the printing of election ballots, where the defense was that the clerk had no authority to contract for the printing of the ballots, as the county had a yearly contract with another printer, held that a judgment for the plaintiff was proper where the record showed that there was a bid made by the second printer but failed to show that it was accepted by the county board, or that the committee of the board of supervisors was authorized to execute the so-called contract based thereon.
    2. Contracts, § 8*—when contract void for uncertainty. A contract to do printing for a county based on a bid, setting out the rate at which certain items were to be printed and providing that any other printing required by the county would be done “at fair and reasonable prices,” held void for uncertainty as to those items as to which no prices were stated.
    3. Counties, § 166*—when liable for ballots ordered printed by county cleric. A county board of supervisors is liable for ballots ordered printed by a county clerk where, in ordering them, he violates no law, contract or rule of the board.
    Appeal from the Circuit Court of Clark county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    E. D. Jones and Everett Connelly, for appellant.
    Samuel M. Scholfield and John J. Arney, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

Appellee, who is a printer, printed some primary ballots for a primary election held in Clark county. They were ordered by the county clerk of that county, were printed under his direction, delivered to him when completed, by him distributed to the election officials of that county as required by law, and used by the voters at that primary election.

He filed his bill for such printing with the county clerk of that county, who approved it and presented it to the county board. The board refused to allow the bill, and appellee appealed to the Circuit Court of that county, where he obtained a judgment for $264.50. The county brings the record here by appeal. There is no contention that the work was not well done or that the charge therefor was unreasonable.

The defense interposed at the trial was that the county, through its county board, had contracted with another printer, named Keithley, to do all the county’s printing for the period during which this printing was done, and that, therefore, the county clerk had no power to bind the county by his contract with appellee for this work. It has not been here contended that the county clerk would not have the lawful right to order the primary ballots printed at the expense of the county, if no contract for such work had been made by the county.

It may be conceded for the purposes of this case that when the county board has a contract with one person to do a printing job the county clerk has no right to ignore such contract and give the work to a different person, and thereby render the county liable to pay the bill for such work, although it is not necessary to determine that point in this case, and we express no opinion on that question.

The record in this case fails to show that the county board ever made the contract with Keithley referred to. It does show a bid in writing for the doing of certain specific work at a definite price, and it shows a writing in the form of a contract for the work bid for, signed by a committee of the county board and Keithley, but it failed to show that the bid was accepted by the county board or that the committee was authorized to execute the writing.

Besides that, neither the bid nor the so-called contract makes any reference to ballots for primary elections. Appellant insists that because the contract contains the words “the party of the first part has this day contracted and let to the party of the second part all printing to be done for the County of Clark for one year beginning with the 9th day of June, 1914,” and a little later the words “anything required not here enumerated will be furnished at fair and reasonable prices, and in accordance with above,” taken in connection with the fact that the printing of primary ballots was “done for the county,” the court should hold that the printing of primary ballots was included in the terms of the contract. The contract cannot be so construed. Following the language first above quoted, the contract contains the following: “It is agreed by and between the parties hereto that the party of the second part shall furnish to the party of the first part the following items at the respective prices as follows, ’ ’ then follows a list of items with the prices set opposite, at which each item will be printed, which list does not include primary ballots. This was an attempt to make a contract based on a successful competitive bid for the county printing. To say in a competitive bid a party will perform certain labor at a “reasonable price” is no bid at all, because it fixes no price. A contract based on such a bid, if it must be let to the lowest bidder, is void for uncertainty. Even if the contract offered in evidence signed by Keithley and the committee of the board of supervisors had been shown to have been authorized by the board, still it could not be held to cover primary ballots, because no price at which such primary ballots would be printed is fixed specifically or in general terms in the contract or the bid upon which it is based, or discoverable by implication.

The law clearly makes it the imperative duty of the county clerk to cause primary ballots to be printed. This duty he must perform whether the county board makes provisions for defraying the expenses or not. When in the performance of that duty he violates no law or contract or rule of the county board, the county is clearly liable for the expense he incurs in so doing. For analogous case, see People v. Fuller, 238 Ill. 116. The judgment of the Circuit Court is therefore affirmed.

Judgment affirmed.


text:
    Frank Walker, Administrator, Defendant in Error, v. E. C. Schertz, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Tazewell county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with a finding of fact.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by Frank Walker, administrator of the estate of Anna A. Walker, deceased, plaintiff, against E. C. Schertz and Mrs. E. C. Schertz, defendants, on a promissory note. From a judgment for plaintiff, defendant E. C. Schertz brings error.
    The plaintiff held a note of. the defendant on which the defendant claimed a certain payment had been made which was not credited thereon. The parties agreed that plaintiff should give defendant credit on the note for such payment in controversy and that defendant should pay the balance due on the note. The defendant sent plaintiff a check inclosed in a letter, which plainly informed plaintiff that according.to defendant’s understanding, the check was in full for the balance due on the note. Plaintiff accepted this check, cashed it, and indorsed the amount of it on the back of the note as so much paid. Later his attorney wrote to defendant that there was still due a certain amount on the note, and that if he did not pay that amount he would be sued, and that if he was sued the-amount to be credited would not be allowed. He did not pay it, and plaintiff began suit.
    Abstract of the Decision.
    1. Accord and satisfaction, § 4

      —what constitutes. The acceptance and cashing of a check by a creditor sent him by the debtor with a statement that, according to his understanding, it covered the balance due on a certain note in accordance with a compromise between the parties, held to amount to an accord and satisfaction.
    2. Executors and administrators, § 85*—when compromise of debt by administrator valid. A compromise by an administrator of a debt due the estate, held valid.
    John T. Elliff and Prettyman, Velde & Prettyman, for plaintiff in error.
    T. N. Smith and Curran & Dempsey, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    City of Springfield, Appellee, v. Inter-State Independent Telephone & Telegraph Company, Appellant.
    1. Appeal and error, § 1712

      —when errors waived. Errors assigned but not argued on appeal are considered waived.
    2. Municipal corporations, § 85*—when question of correct passage of ordinance immaterial. The question whether an ordinance was correctly passed, held immaterial where it-was not denied that it was duly made a part of a later codification and not contended that it had been repealed.
    3. Municipal corporations—what is effect of acceptance of contract ordinance. Where a contract ordinance has been accepted by the grantee of rights thereunder it becomes a special contract,, binding upon the parties thereto.
    4. Constitutional law, § 103*—when city may not impair contract by ordinance. Where an ordinance has, by acceptance by the grantee thereunder, become a contract between the grantee and the city, the latter, by the passage of a later ordinance, cannot impair the obligation of such contract.
    5. Municipal corporations, § 83*—when special ordinance controls. When a special ordinance conflicts with a general ordinance, the former controls.
    6. Municipal corporations, § 820*—what does not constitute police regulation. Where, by a special ordinance,' the right was granted to a telephone company to use streets and alleys for the erection of its poles and wires, and it was provided therein that the right of the grantee thereunder should be subject to future police regulation, held that the rental for poles occupied by the company, provided for by a subsequent ordinance, could not be collected, as such ordinance was not a police regulation, and to allow the collection of such rental would be to impair the obligation of the telephone' company’s contract.
    7. Appeal and error, § 1805*—when case not remanded upon reversal. Where the reason for the reversal of a case is fatal to the ultimate right of the plaintiff to recover and cannot be remedied upon retrial, the case will not be remanded.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this Court at the October term, 1915.
    Reversed.'
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.

      Fred A. Dolph and Ben B. Boynton, for appellant; E. J. Marshall, of counsel.
    Frank L. Hatch and Albert Stevens, for appellee; Timothy McGrath, of counsel.

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

   Mr. Justice Graves

delivered the opinion of the court.

On December 9, 1901, appellee, the City of Springfield, passed a special ordinance granting to certain persons therein named, their successors and assigns, the right to construct, maintain and operate a telephone system in and upon the streets, alleys and public grounds of the said city. Among other things the right to place poles in the streets and alleys of the said city was thereby granted. By that ordinance the terms, conditions and consideration upon which it was to become effective were specifically provided. The consideration specified was that the grantees therein named should place and maintain a telephone in each of the offices of the city hall, in each of the fire engine houses in the city, in each of the sehoolhouses in the city, at the police department, at thé pumping station, waterworks, reservoir, and at all the other public offices in the city, and in case any additional “phones” were desired by the city, they were to be furnished by the grantees at half of the regular rates.

The grant proposed by that ordinance was promptly accepted by the grantees therein named, and with the consent of the city all rights so acquired by them were duly assigned to appellant, who proceeded to construct a telephone system in said city, and has since maintained and operated it there.

At the time of the passage of that ordinance on December 9, 1901, there was in the ordinance books of the City of Springfield an ordinance purporting to have been passed on August 5, 1901, which is in part as follows:

“Any person, firm or corporation owning, controlling or occupying any pole or post over eight feet high, which may occupy any portion of any street, alley or sidewalk within the City of Springfield, said pole or post being used to support electric or other wires, of whatsoever nature, or to support any sign or awning or display, for the purpose of advertising, shall pay annually into the City Treasury the sum of one dollar for each such pole or post owned, controlled or occupied by said person, firm or corporation, as a remuneration to the said City for the use of the portion or portions of the street, alley or sidewalk which said poles or post may occupy * * *.

“The license hereinbefore provided shall be due on the first day of September of each year.”

That ordinance was re-enacted in the codification of appellee’s ordinances in 1902. It was amended in 1908 and again in 1910 by the addition of some provisions regarding the painting and marking of the poles, but the part above quoted remained in force unchanged all the time and during the entire year of 1914.

The declaration in this case is in one count, and charges that appellant during the year 1914 occupied portions of the streets and alleys of appellee with 2,800 poles without paying into the city treasury the $1 per pole required by the ordinance above quoted.

Appellant filed the general issue and a special plea. A demurrer to the special plea was sustained and the case was tried by a jury on the issues joined and resulted in a verdict and judgment in favor of appellee for $2,800.

Appellant has not argued the error assigned on sustaining the demurrer to the-special plea. It is therefore treated as waived.

Great stress has been placed in the arguments of both parties on the question whether appellant should have been permitted to prove that the ordinance in question was not originally in 1901 correctly passed by the City Council of Springfield. As we view the case it is wholly immaterial whether it was so passed or not. However that may be, it is not denied that it was duly made part of the codification of 3902, nor is it contended that it has since been repealed. It must therefore for the purpose of this case be considered in force during’ the year 1914.

It was stipulated on the trial that appellant, during the year 1914, occupied parts of the streets and alleys of the City of Springfield with 2,800 poles, such as are described in the pole ordinance sued on, and that appellant has not paid the $1 per pole required by that ordinance to be paid into the city treasury by September of each year. It is also stipulated that appellant has in all respects complied with the terms of the special franchise or contract ordinance of December 9, 1901.

When the special contract ordinance in question was passed by the city and accepted by the grantees and the term of it in all respects had been complied with by the assignees of the grantees, it became a valid and binding contract between the parties in this suit. Village of Madison v. Alton, G. & St. L. Traction Co., 235 Ill. 346; Chicago General Ry. Co. v. City of Chicago, 176 Ill. 253-259; People’s Gas Light & Coke Co. v. Hale, 94 Ill. App. 406; City of St. Louis v. Western Union Tel. Co., 63 Fed. 68.

To permit a city, by a subsequent ordinance, to exact from- one with whom it has contracted, an additional compensation, or to impose on him additional burdens, would be to impair the obligations of a contract, and cannot be tolerated. City of Quincy v. Bull, 106 Ill. 337; City of St. Louis v. Western Union Tel. Co., 63 Fed. 68; People’s Gas Light v. Coke Co. v. Hale, 94 Ill. App. 406-420.

The Supreme Court had before it this identical ordinance in the case of City of Springfield v. Postal Tel. Calle Co., 253 Ill, 346, and there held in substance and effect that it was an ordinance passed by that city in its proprietary and not its governmental capacity, and that it fixed a rental which the telegraph company was compelled to pay for its use of the streets and alleys, in addition to the compensation fixed in the special contract ordinance involved in that case, but the opinion does not disclose whether there was a provision in the contract ordinance binding the telegraph company to comply with all the general ordinances of the city or not. It was there contended that the city council was without power to pass the pole ordinance. The question whether the general pole ordinance impairs tlie obligation of a contract existing between the parties was not raised or decided.

In the City of Springfield v. Central Union Tel. Co., 184 Ill. App. 400, this court had before it this same ordinance and held that its provisions were enforceable against that Telephone Company, but in that case the special contract ordinance contained the express provision that “all rights therein granted shall be subject to all general ordinances of the city now in force.” The special ordinance in the case at bar contains no such reservation. There is a reservation that “the rights of the grantees, their successors and assigns, under this ordinance, are to be held subject to all the police regulations that may be legally adopted by said City of Springfield and the City Council may make such regulations as are proper as to the character of poles and wires to be used, their location and the manner in which they shall be painted and cared for.” A police regulation is established by a city in the exercise of its governmental and not its proprietary capacity. This pole ordinance not being a police regulation but being passed by the city in its proprietary capacity, and providing for a rental to be paid by those occupying space by poles (City of Springfield v. Postal Tel. Cable Co., supra), does not come within the reservation in the special contract ordinance in question.

When a special ordinance conflicts with a general ordinance the special ordinance controls. Dahnke v. People, 168 Ill. 102; State ex rel. Lutfring v. Goetse, 22 Wis. *363; Long v. Culp, 14 Kan. 412.

It follows that even if the general pole ordinance in question was in force when the special franchise ordinance was passed, so long as the special franchise ordinance was in no way limited by or made subject to its provisions, it cannot now be made the means of increasing the burdens of appellant above those included in the special franchise ordinance.

The judgment of the Circuit Court is therefore reversed, and as the reason for reversal is fatal to the ultimate right of appellee to recover, and cannot be remedied upon a retrial, the cause will not be remanded.

Judgment reversed.


text:
    Lance, Cornell & Company, Appellant, v. J. E. Lance, Highway Commissioner, Appellee.
    1. Township organization, § 37

      —when anticipation warrants void. Anticipation warrants are void unless they are made payable solely from taxes already levied, and show on their face that they are to be paid from such taxes only.
    2. Township organization, § 39*—what does not constitute prima facie case in action on anticipation warrant. An anticipation warrant which does not on its face show that it is to be paid solely from taxes already levied is not regular on its face, and the plaintiff in an action thereon does not, by offering it in evidence, make out a prima facie case of liability on the part of the party issuing it.
    3. Township organization, § 32*—when contract ~by commissioners of highways invalid. Where a statute provides that commissioners of highways cannot let a contract for a sum in excess of a certain amount without the approval of the county superintendent of highways, a contract involving a sum in excess of such sum is void though no county superintendent has been appointed.
    4. Township organization, § 39

      —when declaration in action on warrant by assignee defective. A declaration in an action by an assignee of a non-negotiable warrant, held defective in not alleging on oath that the plaintiff was the actual and bona fide holder thereof, and in not setting forth how and when he acquired title thereto.
    Appeal from the Circuit Court of Fulton county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Chiperfield & Chiperfield, for appellant.
    Marvin T. Robison and M. P. Rice, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Fulton county in a suit in assumpsit, brought by appellant to recover from appellee as Highway Commissioner of the Township of Harris, in Fulton county, under the single highway commissioner system adopted in that township in April, 1914. The basis of the suit is a warrant drawn in November, 1913, by the then commissioners’ of highways of that township, for $1,240.23, payable April 1, 1914, without interest, out of the funds in the hands of the treasurer of that township not otherwise appropriated. This warrant was drawn to pay for a carload of sewer pipe and other materials purchased in October, 1913, from the Reliable Iron & Metal Company, by the then highway commissioners. It was made payable to that company and was assigned by that company to appellant. The declaration contains two counts, one a special count based on the above facts, and the other certain of the common counts. Appellee filed his plea of nonassumpsit and a special plea in bar, denying liability on the ground that at the time the warrant was issued there were not sufficient funds in the treasury to pay the same, that could be used for that purpose; that the warrant was not on its face made payable from taxes then levied, and that the warrant and the indebtedness it was given to pay were unlawful and contrary to the express provisions of the statute. The case was tried by the court without a jury. The finding of the court was for appellee, and judgment was rendered against appellants for costs.

The warrant sued on was not payable on demand but was what is termed an anticipation warrant. Such warrants are void unless they are made payable solely from taxes already levied, and show on their face that they are to be paid from such taxes only. County of Coles v. Goehring, 209 Ill. 142-162. Laws 1913, page 608 [Cal. Ill. St. Supp. 1916, ¶ 11527(1) et seq.].

Appellants urge that the trial court in rendering judgment against them for costs ignored the rule that when a warrant for the payment of money is introduced in evidence it makes a prima facie case of liability against the body issuing it, on the principle that it amounts to a recognition or admission that a valid indebtedness exists. As we understand the rule referred to, it only applies when the warrant relied on is regular on its face, or, in other words, when such warrant lacks nothing which the law requires it shall contain. This warrant fails to show on its face that it is to be paid solely from taxes already levied. The rule laid down in the County of Coles v. Goehring, supra, must therefore be applied.

Appellants urge as error that the court failed to hold as law the following proposition requested by them, viz.:

“Unless it appears affirmatively in evidence that a County Superintendent of Highways had been appointed by the Board of Supervisors under the Act of July 1st, 1913, prior to November 18th, 1913, then the right and authority of the Commissioners of Highways of Harris Township, Illinois, to make purchases of sewer pipe for use on roads of said Township in an amount in excess of two hundred ($200) dollars existed and would not be affected by said law.”

Section 8 of the Act in regard to “Roads and Bridges,” approved June 27, 1913, in force July 1, 1913, page 524, Laws of 1913 [Cal. Ill. St. Supp. 1916, ¶ 10000(8)], creates the office of county superintendent of highways, and provides that such an office shall be appointed by the county board. Section 68 of that Act, page 551, Laws of 1913 [Cal. Ill. St. Supp. 1916, ¶ 10000(8)], provides, first, that the commissioners of highways may make certain contracts when the amount to be expended -does not exceed $200, and then provides: “When any contract shall be for a sum in excess of $200 the said commissioners shall not let the same without the approval of the County Superintendent of Highways.” The contract in question did involve the expenditure of more than $200.

The proposition submitted does not deny the law to be that, if there was a superintendent of highways in Fulton county at the time the contract for the sewer pipe in question was made, it would be void without the approval of such superintendent, but announces the law to be that, unless such officer had been appointed when the contract was made, the commissioners of highways could make a valid contract without the approval of a county superintendent of highways.

The act in question makes no such exception. Its operation was not deferred or suspended until a superintendent of highways should be. appointed. It speaks from July 1, 1913, when it went into force. It says that after July 1, 1913, no contract shall be made by the commissioners of highways involving over $200, without the approval of the county superintendent of highways. It is a familiar rule that when a statute speaks, implicit reliance must be placed on it. In our opinion it is a salutary law, and well calculated to con - serve the rights and property of the people. Even if the highway commissioners did not approve of it, they had no power to add to it or take from it. It stands on the statute books for their guidance in the performance of their duties. It is a rule to govern their action prescribed by a superior authority, and which they as inferiors are bound to obey. We think the commissioners were without authority to make the contract for the sewer pipe to pay for which this warrant was issued without having it approved as provided by the act referred to. If a county superintendent of roads had not been appointed, contracts involving the expenditure of over $200 must wait until one was appointed. Besides that, ample time in which such officer could and should have been appointed elapsed between the 1st day of July, 1913, and the time in October of that year when the commissioners attempted to contract for the sewer pipe. It was the official duty of the county board to make such appointment, and in the absence of proof to the contrary, the presumption must be indulged in that the county board had performed its duty. 29 Cyc., page 1437.

It follows that the proposition of law requested by appellants was properly refused. It also follows that the contract of October, 1913, involving the expenditure of more than $200 and not approved by the county superintendent of roads, was void and created no obligation on the Township of Harris.

We desire to mention one further fact. The warrant sued on is not negotiable. Appellants sue as assignees in their own name. Section 18 of the Practice Act (Cal. Ill. St. Supp. 1916, ¶ 8555) provides that suits on non-negotiable choses in action may be begun in the name of the assignee, but that when so begun the plaintiff “shall in his pleading on oath, * * *" allege that he is the actual bona fide owner thereof, and set forth how and when he acquired title.” The declaration does not conform to the requirements of that section of the Practice Act. It is not therein averred that the plaintiffs are the actual bona fide owners of the warrant sued on, or how they acquired title thereto. Neither is it verified. The judgment of the Circuit Court is affirmed.

Judgment affirmed.

Mr. Justice Thompson took no part.


text:
    Jacob Longenbach and Isaac W. Longenbach, Administrators, Appellants, v. Stephen G. Cole and Lydia J. Cole, Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Bill by Jacob Longenbach and Isaac W. Longenbach, administrators of the estate of Isaac Longenbach, deceased, complainants, against Stephen G. Cole and Lydia J. Cole, defendants, to foreclose a mortgage securing a promissory note held by the deceased. From a decree for defendants, complainants appeal.
    William H. Craig and George B. Rhoads, for appellants.
    A. J. Steidley and J. E. Crockett, for appellees.

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

   Mr. Justice Graves

delivered the opinion of the court.

Abstract of the Decision.

1. Limitation of actions, § 103 —necessity of alleging matter to prevent running of statute. A bill to foreclose a mortgage securing a note, which shows on its face, that it is barred by the statute of limitations, must, where the statute is relied on as a defense, show either by original averment or by amendment some fact that will prevent the running of the statute.

2. Mortgages, § 503*—when evidence insufficient to show insanity of mortgagor. In a suit by administrators to foreclose a mortgage securing a note held by the intestate, evidence held to justify a finding that the intestate was not insane as averred by the complainants in their replication to a plea of the statute of limitations.

3. Appeal and error, § 1775*—When cause not reversed and remanded to permit amendments to hill. Where, in a suit to foreclose a mortgage securing a note in which the statute of limitations was set up as a defense, the evidence introduced to show payment on the note was incompetent to support a decree for the complainants, held that the cause would not be reversed and remanded so as to permit proper averments to be made in order to make the bill correspond with the proof, though no objection to such incompetent evidence was raised on the trial.


text:
    John Lindenbaum, Appellee, v. Sells-Floto Shows Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by John Lindenbaum, plaintiff, against the Sells-Floto Shows Company, defendant, for personal injuries. From a judgment for plaintiff, defendant appeals.
    Abstract of the Decision.
    1. Master and servant, § 544

      —what declaration in action for injuries by another servant must allege. In an action by a servant against his master for damages for an injury alleged to have resulted from the negligence of another servant of the master, the declaration must allege that the servant whose negligence caused the injury was not a fellow-servant of the plaintiff, or allege facts which will negative such relation.
    The declaration charged that plaintiff was at the time he was injured an employee of defendant as a performer in a circus; that one of his duties was to ride in street parades on an artillery wagon drawn by horses; that he had nothing to do with the management of the horses; that the management and control of the horses were in charge of other servants of defendant; that it was the duty of defendant to furnish plaintiff with a safe place to ride and a safe conveyanee to ride on and to so manage the same as not to injure plaintiff. The only negligence charged was that defendant by its servants so negligently, carelessly and improperly drove and managed the horses attached to the artillery wagon on which plaintiff was riding that the horses ran away, the wagon was thrown against a pole and plaintiff, while in the exercise of due care for his own safety, was thrown from the wagon and injured.
    Charles M. Crayton and John M. Boyle, for appellant; John T. Bottom, of counsel.
    O. M. Jones and Walter T. Gunn, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

2. Master and servant, § 544 —when declaration-does not sufficiently aver nonexistence of fellow-servant relation. In 'an action for injuries sustained by a circus employee while riding along, a street on a circus wagon, resulting from the horses attached thereto becoming frightened and running away, as the result of the alleged mismanagement of them by the driver, an averment that the plain-tie had nothing to do with the management of the horses, held not a sufficient averment that the plaintie and the driver were not fellow-servants.

3. Master and servant, § 760*—when proximate cause of injury to employee question for jury. Where, in an action by a circus employee for personal injuries from horses attached to a wagon in which the plaintiff was riding running away, there was evidence that if a bystander had not waved some object at the horses after they became unmanageable the accident would not have happened, the question of what was the proximate cause of the injury was held for the jury.

4. Master and servant, § 770*—when direction of verdict in action for personal injuries improper. In an action for personal injuries by an employee against his employer, an instruction directing a verdict for the plaintiff on proof by a preponderance of the evidence of the facts alleged in the declaration, held erroneous where the declaration failed to deny the assumption of risk by the plaintiff and that the servant, whose negligence was alleged to have caused the injury, was a fellow-servant of the plaintiff.

5. Instructions, § 89*—when instruction on noncontrolling effect of number of witnesses erroneous. An instruction charging the jury “you are not bound by the number of witnesses who may testify on one side or the other of any particular fact or state of facts,” held incorrect, as, in some cases, where other things are equal, the number of witnesses may be controlling.


text:
    Ephram Vaughan, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Hot to be reported in full.)
    Abstract of the Decision.
    1. Damages, § 200

      —when instruction on measure of is erroneous. An instruction, in a personal injury action, authorizing the jury to return a verdict for the whole amount of damages shown by the evidence to have been suffered by the plaintiff, held erroneous in not directing them to allow the defendant credit for an amount which the plaintiff admitted had been paid to him by the defendant for lost time.
    2. Instructions, § 118*—when should not he given. Instructions not based on the evidence should not he given.
    3. Damages, § 207*—when instruction on is erroneous. Where damages are susceptible of exact measurement and proof, such as those for loss of time and inability to pursue a former occupation, "it is error to charge the jury that they may be estimated from observation and experience.

      Appeal from the Circuit Court of Moultrie county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Statement of the Case.
    Action by Ephram Vaughan, plaintiff, against the Illinois Central Railroad Company, a corporation, defendant, for damages for personal injuries sustained while riding to work on the defendant’s train. From a judgment for plaintiff, defendant appeals.
    Frank M. Harbaugh, Edward C. Craig, Donald B. Craig, Jambs W. Craig, Jr. and John E. Jennings, for appellant; John G. Drennan, of counsel.
    E. J. Miller and C. R. Patterson, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

4. Release, § 26 —when fraud in obtaining is question for jury. Where the defendant in a personal injury action claimed that the plaintiff had executed a release of his claim, held that the question whether such release had been obtained by fraud or circumvention was for the jury.


text:
    Nokomis National Bank, Appellee, v. John H. Elmers et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Christian county; the Eton. James C. McBride, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Intervening petition in partition suit filed by Nokomis National Bank, petitioner, against John H. Elmers et al., respondents, to have transfers by the defendants Benjamin Elmers and Joseph Elmers of their interests in the property involved in the suit set aside, and their distributive shares applied to the payment of debts owing by them to the petitioner. From a decree for the petitioner, defendants appeal.
    John E. Hogan and E. E. Dowell, for appellants.
    L. G. Grundy and George T. Wallace, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1751 —when judgment affirmed. Unless the party bringing a cause up for review shall not only present a record containing all that is necessary for the court to know in order to intelligently pass upon the questions presented, but shall also file an abstract or abridgment of that record from which the errors complained of can be discovered, the judgment of the lower court will be affirmed pro forma.

2. Appeal and error, § 864*—when court mil not inspect record, Courts of review will never go to the record to discover errors not shown by the abstract, but will inspect it to find reasons to affirm.

3. Appeal and error, § 1395*—when findings of chancellor not disturbed. Findings of fact of a chancellor should not be set aside as against the weight of the evidence, unless they are clearly and palpably so.

4. Fraudulent conveyances, § 264*—when evidence sufficient to show that conveyances are fraudulent against creditors. On an intervening petition by a creditor of distributees in a partition suit, asking that transfers by certain of the distributees of their interests in the property be set aside and the money paid the petitioner in satisfaction of a claim against them, evidence held sufficient to support a finding that such transfers were fraudulent as against the petitioner and a decree ordering payment of its claim out of the distributive shares of the distributees.


text:
    Illinois Central Traction Company, Appellant, v. Marie Herman, Appellee.
    (Not to The reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by the Illinois Central Traction Company, plaintiff, against Marie Herman, defendant, to recover an alleged overpayment of taxes. From a judgment for defendant, plaintiff appeals.
    The plaintiff had leased certain property from the defendant under a lease containing the following clause:
    “It is further a part of the conditions of this lease that during said term all ground, sidewalk and general taxes, also all paving, special assessments and taxes shall be paid by the party of the first part, and if the same shall not be paid before said property shall be advertised for sale to collect the same, the party of the second part shall have the right to make such payments and deduct the amount of such payments from the rent thereafter to be paid.
    “Provided that in case the assessed value of said ground is increased by reason of the erection of any improvements put thereon by the second party, then the second party is to pay its portion of the taxes in proportion as the said property is enhanced in value by reason of such improvement over the present assessed value.”
    For several years the plaintiff had, in accordance with bills sent it by the defendant, paid the proportion of the taxes assessed on the increased value of the property resulting from improvements placed thereon by it, and brought this suit to recover the excess of this amount over the proportion of taxes assessed on the improvements themselves.
    Abstract of the Decision.
    Landlord and tenant, §,199

      —when lessee not entitled to reimbursement for taxes paid. Where a lessee sought to recover an alleged overpayment of its proportion of taxes on leased property, claiming that a proper construction of the lease showed that it was liable to pay only the taxes on the improvements put on the property by it and not the proportion of the taxes assessed on the increased value of the property resulting from the improvements, which it had paid in accordance with bills sent it yearly by the lessor, held that there being no question of fraud or misrepresentation, and the amount of taxes being a matter of public record as accessible to the plaintiff as to the defendant, no recovery could be had, it not being contended that the increased assessed valuation was due to any other cause than the improvements placed thereon by the plaintiff.
    Johh B. Hardaway, George W. Black and James A. Knowlton, for appellant.
    A. M. Fitzgerald, for appellee; Gillespie & Fitzgerald, of counsel.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Alexander Lumber Company, Appellant, v. Champaign Baseball Club et al., Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mechanics’ liens, § 196

      —when material man entitled to lien. To entitle one furnishing building materials to have a lien declared on the premises, it must appear both by averment and proof that the materials were for the construction of some things that were to become part of or be an improvement on the real estate, as distinguished from such things as, when completed, still retain their character as personal property, and that the petitioner had an existing right to compensation therefor.

      Appeal from the Circuit Court of Champaign county; the Hon. Geobge B. Sentel, Judge, presiding. Heard in this court at the October term, 1915. Petition for certiorari dismissed.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    - Petition by the Alexander Lumber Company, petitioner, against the Champaign Baseball Club, a corporation, W. H. Miller and Minnie Vogel, defendants, to have a mechanic’s lien declared. From a judgment for defendants, the petitioner appeals.
    Materials were furnished by the petitioner to the defendant Baseball Club to be used in the construction of a grand stand, bleachers, fences, etc., on real estate leased from the other defendants. After the construction was completed, the petitioner purchased the structure from the Baseball Club and leased it back to it, both parties treating the property as personal property. The Baseball Club claimed that the sale was made in complete discharge of its indebtedness for the materials furnished.
    Dobbins & Dobbins, for appellant.
    A. E. Campbell, C. R. Iungerich and Lynn S. Corbly, for appellees.

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

   Mr. Justice Graves

delivered the opinion of the court.

2. Mechanics’ liens, § 61*—when material man not entitled to lien. Where a lumber company furnished material to the lessee of real estate, which was used in the construction of a baseball grand stand, bleachers, etc., and later purchased the structure from the lessee and leased it back to it, in both transactions treating the property as personal property and reserving the right to enter at the expiration of the lease and remove it, the owner of the real estate knowing nothing about the transaction, held that the lumber company could not have a lien declared on the real estate for the value of the materials so furnished.

3. Deeds, § 80*—when conveyance not construed as conditional. A conveyance absolute on its face will not be construed to be a conditional one except on competent proof which clearly shows that the intention of the parties was that it should be conditional.


text:
    The People of the State of Illinois ex rel. Monroe Seals et al., Appellee, v. Louis Henderson, Town Clerk, Appellant.
    1. Intoxicating liquors, § 6

      —what petition for submission of local option question need not state. A petition to have placed upon a ballot the proposition whether a town shall become anti-saloon territory need not state on its face that the signers thereof are equal in number to not less than one-fourth of the total number of votes cast in the town at the last election held therein.
    2. Intoxicating liquors, § 6*—how correctness of addresses of signers of petition for submission of local option question cannot be determined. The correctness of the addresses of signers of a petition to have placed upon an election ballot the proposition whether a town shall become anti-saloon territory cannot be determined on a demurrer to the petition for a mandamus to compel the clerk to place such proposition on the ballot.

      Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Hill & Burlington, for appellant; Neeley, Gallimore, Cook & Potter, of counsel.
    J. Earl Major and Lane, Dryer & Brown, for appellee; W. B. Ebbert, of counsel.

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

   Mr. Justice Graves

delivered the opinion of the court.

A petition for a peremptory writ of mandamus to compel the town clerk of the Town of Greshem in Montgomery county to submit to vote and to print on the ballot for the town election in that town to be held on April 6, 1915, the proposition “shall this town become anti-saloon territory,” was filed in the Circuit Court of that county on March 29th, 1915. A general and special demurrer filed to the petition by the respondent was overruled by the court. The respondent elected to stand by his demurrer and the writ of mandamus was awarded as prayed.

But two questions are urged here against the sufficiency of the petition:

“1. The petition on its face does not state that the signers thereon are equal in number to not less than one-fourth of the total votes cast in said town at the last election therein.

“2. The residence address of the respective signers to the petition does not appear opposite the signatures, as the statute requires.”

Section 4 of that part of chapter 43 known as the Local Option Law (J. & A. ¶ 4640), provides not only what the petition to have the question of whether certain political divisions shall become anti-saloon territory submitted to vote, shall contain, but provides that it shall be substantially in the form there given. There is nothing in that section which requires that the petition on its face shall show that the signers thereon are equal in number to not less than one-fourth of the total votes cast in the territory at the last election. Section 2 of that Act (J. & A. ¶ 4638) provides that such petition shall contain that proportion of such votes, but whether such petition contains the requisite number must be determined from a count of the signers by the clerk.. It is manifestly impossible for any signer when he signs a petition to know how many others will sign it, and unless when he does sign it there are then on it signatures in number not less than one-fourth of the total vote cast in such political subdivision at the last election, he would certify to a falsehood if he said there was. Town of Somonauk v. People, 178 Ill. 631. There is nothing in People v. Dillon, 266 Ill. 272, in conflict with the Somonauk case, supra.

We have examined the petitions as they appear in the record with reference to the objection that the addresses of the signers do not appear opposite their signatures, and find that in each instance an address is given opposite the signature. There is nothing in the petition or in the record before us to indicate that such addresses are not correct. The petition seems to be in substantial conformity to the requirements of the statute in the respect referred to.

We are unable to see how the question of the correctness of the several addresses referred to can be determined on demurrer.

Appellee has assigned for cross-error that the court erred in allowing appellant to take this appeal. In view of the fact that we feel impelled to affirm the judgment of the Circuit Court on the merits, it is unnecessary to determine the question of respondent’s right to appeal. The judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    Homer W. Hall, Administrator, Plaintiff in Error, v. Corn Belt Bank, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by Thomas J. Bunn, plaintiff, against the Com Belt Bank, defendant, for personal injuries resulting from a fall down an elevator shaft. To review a judgment for defendant, plaintiff sued out a writ of error. The plaintiff having died, Homer W. Hall was appointed as administrator and substituted as plaintiff in error on the appeal.
    The negligence charged in the declaration was that defendant by its servant suddenly and negligently started its elevator in its office building while intestate was in the act of entering the elevator.
    There were three eyewitnesses to the accident, viz.: Thomas J. Bunn, now deceased, the elevator man, and a young lady who was waiting to take the elevator. They all testified at the trial. The evidence tended strongly to show that when the deceased and the witness Miss Fenstemaker were standing on the main floor of the office building of defendant, the elevator man brought the elevator to that floor and in stopping did not succeed at first in bringing the floor of the elevator on a level with the floor of the building there; that he then called out to those there to wait a minute until he could bring the floor of the car to a level with the floor of the building; that when that was done, the deceased himself opened the door wide enough to permit him to enter the elevator, and attempted to do so; that as he did so he stumbled and the elevator man put out his hand to assist him; that in doing so his other arm came in contact with the controller of the elevator and the elevator went upwards about four feet when the operator stopped it; that the deceased fell partly on the elevator floor and partly off, and then down the elevator shaft to the bottom, a distance of about eight feet, and was injured.
    Abstract of the Decision.
    Elevators, § 29

      —when evidence sufficient to show that injuries are result of unavoidable accident. In an action for personal injuries, resulting from a fall down an elevator shaft, evidence held to show that such injuries resulted from an unavoidable accident for which the defendant was not responsible.
    De Mange, Gillespie & De Mange, for plaintiff in error.
    M. A. Brennan, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.