author: Mr. Justice Whitney

text:
    C. E. Mason, Appellant, v. George S. Miller, Appellee.
    Gen. No. 5,666.
    1. Bbokebs—when cannot recover commissions. Commissions cannot be recovered for the sale of a farm alleged to have been made on a certain contract alone when the contract was not signed by the vendee nor by the vendor’s wife who was made a party to the contract.
    2. Bbokebs—no recovery for commissions where contract may he forfeited. No recovery can be had for commissions for the sale of a farm where the contract provides that it is to be forfeited on failure by the purchaser to make the payments provided for therein.
    Appeal from the County Court of LaSalle county; the Hon. William H. Hotebaugh, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    L. B. Olmstead, for appellant.
    Butters & Armstrong, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee in an action brought by appellant to recover commissions alleged to be due him on the sale of appellee’s farm. A trial was had and at the close of appellant’s evidence a motion was made by appellee to have the evidence excluded and the jury instructed to find the issues for appellee, which motion was overruled. The motion was renewed at the close of all the evidence and allowed, and the jury was instructed to find the issues for the appellee, which they did. From the judgment entered on their verdict, this appeal is prosecuted, and the errors assigned which are argued, are based on the ruling of the court below on said motion and instruction to find the issues for appellee.

The contract on which the right of recovery is urged was introduced in evidence, and appellant testified in relation thereto that he sought to recover commissions for making the sale of the farm in question on that contract and on no other ground. The contract was signed by appellee only. The alleged purchaser did not sign it, nor did the wife of appellee who was made a party to the contract at the suggestion of the purchaser.

The alleged purchaser testified he was a conditional buyer only; that he had a farm he would have to sell if he bought appellee’s farm, and which he would not sell unless he bought appellee’s farm. Appellee’s wife objected to signing the contract because the consideration therein expressed was five hundred dollars less than she understood it was to be. So it appears from the evidence that while the parties had considerable talk about the contract, it resulted in the written contract not being signed by the purchaser or appellee’s wife. The alleged purchaser did not take the farm under this contract. But if it had been signed by all the persons named therein as parties, it would have been but an option contract, in no way binding upon the purchaser to take the farm if he saw fit to forfeit the payment provided for therein, for the reason that the contract provided that in ease of failure of the purchaser to make the payments therein mentioned, it was to be forfeited and determined, and all payments made thereunder up to such failure were to be forfeited and retained by the seller in full satisfaction of damages by him sustained. By the terms of the contract, the purchaser did not buy the farm, and a sale thereof was not effected. . Appellant did not produce a purchaser who was willing to enter into a valid and enforcible contract to purchase the farm. Lawrence v. Rhodes, 188 Ill. 96, is decisive of the question.

Appellant undertook, according to his own claim, to find a purchaser who was ready, willing and able to purchase and take the farm on the terms proposed. He did not do so, and therefore cannot recover commissions.

The court did not err in taking the case from the jury and instructing them to find the issues for appellee.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Step Conrad, Appellee, v. Israel Joseph, Appellant.
    Gen. No. 5,675.
    1. Master and servant—counts disproved. Where plaintiff was employed in a scrap iron yard and injured by a boiler head falling upon him, due to negligent handling thereof by his fellow-workmen, in inserting it into a cutting machine, but the boiler head was immediately thereafter cut without difficulty, judgment on a verdict under a declaration alleging negligence of the master, in the boiler head having been too large, thick, hard, irregular, etc., to be so cut, will be reversed.
    2. Master and servant—fellow-servants. Although acting in the capacity of a representative of the employer, in ordering a boiler head to be put into a cutting machine, an employe who takes hold of the piece of iron with other employes, lifts it on the projecting shelf, and puts it into the machine, is a fellow-servant with such employes.
    Appeal from the City Court of Aurora; the Hon. Edward M, Mangan, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with finding of facts.
    Opinion filed March 12, 1913.
    Aesohuler, Putnam & James, for appellant.
    Richard J. Finn, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee was injured while working in a scrap iron yard in Aurora. Into this yard were brought all kinds of scrap iron and it was there cut up into suitable sizes for remelting, etc. Among the different kinds of mechanism for this purpose was one known as a shears, operated by electric power. The base of the shears is solid with the front part or jaw that moves up and down, which with the sharp edge of the base makes the cutting tool or shears. This jaw is somewhere from 20 to 24 inches long. Appellee came to work two days before he was injured. He was hurt on the 9th day of February, 1911, while working these shears with other fellow-workmen cutting a boiler head. He claims he never had worked on the machine until he took hold of this boiler head. Appellee’s evidence tends to show at least, however, that he had worked on it before the time he was hurt. This boiler head had a flange turned up. Six men brought it to the machine to be cut up. The foreman was not present, and when the foreman was not there, the practice was that the oldest man at the work gave directions. That man on the occasion in question was John Novak. He took hold with the others in putting the boiler head into the shears. The evidence shows that the proper way of putting iron into the shears was for the men to hold the boiler head on the projection of the base from the mouth of the shears, resting it there, and as the upper jaw went up an order was given to shove it into the shears as far as it would go, which was somewhere from 20 to 24 inches, and then the jaw would come down and cut it. Appellee was one of six men and Novak another who had the boiler head on the projection ready to shove it into the shears. According to part of the evidence an order was given to put it in. According to another part, no such order was given. The boiler head as a matter of fact either tipped up so that the flange just projected under the corner of the knife, or according to other evidence it was put in four or five inches only. The knife did not cut it, but made a mark on the outer edge of the flange. The plate moved up and down and the boiler head was either jerked out of the hands of the six men or they dropped it and it fell to the ground. Appellee was standing in front of the machine and it fell on his toes and injured them. He went away to a doctor and later to a hospital where some of Ms toes were amputated. Immediately on his leaving the machine the remaining men put the boiler head into the shears, and cut it without any difficulty whatever. Appellee brought this suit to recover damages, and on a jury trial, had returned a verdict for $1,500 and a judgment therefor, from which the defendant below appeals.

The declaration consists of four original counts and two additional counts. The negligence alleged in the four original counts is based on the allegation that the boiler head was “too thick and hard,” to be cut in the machine, or was “too irregular, rounded, convex and concave,” to be cut in the machine, or was “too thick and too hard,” to be cut in the machine, and that appellant knew, or by the exercise of reasonable care ought to have known it; or that the piece of iron was “too rounded, convex and concave,” to be cut in the machine, and that appellant knew it, or ought to have known it, and that appellee did not know and was not chargeable with notice of it, and that appellant failed to warn him, etc. All these counts fail of proof because the undisputed proof is that the boiler head was cut by the remaining men, without difficulty, immediately after appellee was injured. The fact that the boiler head was easily cut, disposes of the expert testimony that it was too large and'heavy to be cut.

The first additional count charged that appellant by his foreman, ordered appellee to assist in holding onto said machine by hand for the purpose of cutting the same, a piece of iron, which by reason of its size and weight when held on said machine by hand was liable to kick, jerk, jump and fall off said machine, and injure those working about the same, and that by reason of such negligence said piece of iron kicked, jerked, jumped and fell from said machine onto appellee and injured him. This count does not sustain a recovery because there is neither allegation or proof that the piece of iron was so large or heavy that when held on the machine by hand, it was liable to kick, jerk, jump and fall, and there was neither allegation or proof that appellant knew that fact. The second additional count charged that said piece of iron was too large and too heavy to be cut on said machine, and that by reason of its size and weight when held on the machine by hand, it was liable to kick, jerk, jump and fall from the machine, and endanger those working about the same, and that appellant had notice of these facts, or by the exercise of reasonable care should have had notice, and that appellee did not have notice thereof, and was not chargeable with notice, and that appellant negligently failed to warn appellee, and that said piece of iron while being, cut was liable to kick, jump, jerk and fall from said machine and endanger those working on it, and that while appellee was working on said piece of iron on said machine, without warning to appellee, it kicked, jerked, jumped and fell off said machine onto appellee and injured him.

Inasmuch as the remaining five men immediately on appellee being injured, proceeded without difficulty in cutting the piece of iron on the machine and the remaining boiler heads, or plates which were on hand waiting to be cut, no matter what any expert may say about the boiler head being too large or too heavy to be cut upon said machine in that manner, it is proven conclusively by the fact it was cut without difficulty, that it was not too large or to heavy to be cut upon said machine.

There was no proof that in the cutting of any other boiler head, plates or pieces of iron on that machine, it had ever jerked, jumped, kicked or fell off the machine, and no proof whatever that appellant knew or ought to have known this piece of iron was too heavy, or too large, or too hard, or too concave or convex to be held by hand on said machine while being cut, and that it was liable to jump, jerk, kick or fall off said machine; therefore, in our opinion there can be no recovery. Although Novak acted in the capacity of a representative of appellant in ordering the piece of iron put into the machine, about which order there is a dispute in the evidence, still, when he took hold of the piece of iron with appellee and others and put it in the machine, or lifted it onto the projecting shelf ready to be put in the machine, he was a fellow-servant with appellee. Baier v. Selke, 211 Ill. 512; Gall v. Beckstein, 173 Ill. 187; Duffy v. City of Chicago, 137 Ill. App. 195; Allen v. Western Electric Co., 131 Ill. App. 118.

We think it clear that the cause of the accident was that just the edge of the boiler head was put into the machine before the knife came down. It is a reasonable conclusion from the evidence that no order had been given to put it in the machine, and that the men did not then intend to put it in until the order was given, but got it up close to the knife, ready to be shoved; and the knife then came down and struck on the edge of the flange and thus caused it to jerk; but whether it was put in just that far, or as some of the witnesses say, it was put in four or five inches, neither was the proper way. If it was put on the projecting shelf so that the knife would just strike the flange, or if it was put in four or five inches, in either case, it would be liable to jerk and jump when the knife came down. It should have been kept out of the range of the knife, or it should have been shoved clear into the machine as far as it would go, and then we think it plain that it would not, or could not have fallen out. This condition as shown by the evidence was caused, it seems clear to us, by the negligence of the fellow-servants of appellee, and he cannot recover in such case.

Coming to the foregoing conclusion on questions of fact, renders it unnecessary for us to pass on questions arising upon the introduction or rejection of evidence and on the instructions.

Judgment reversed.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment. We find that the appellant was not guilty of the negligence alleged in the declaration, or any count thereof, and that appellee was injured by reason of the negligence of his fellow-servants, for which the appellant is’ not liable.


author: Me. Justice Whitney

text:
    The People of the State of Illinois, Defendant in Error, v. John Port Covey, Plaintiff in Error.
    Gen. No. 5,688.
    1. Vagrancy—gambling is not proof of. In a prosecution under the statute in regard to vagabonds, on a complaint charging defendant with using unlawful games, being a confidence man, neglecting lawful business, frequenting and lounging in gambling and tippling houses, having no lawful means of support and of having been convicted of crimes, the defendant showed that he owned property, supported his family and paid his bills promptly, and that he was a gambler. Held, that there being no competent proof of guilt, except that he was a gambler, the statute does not apply.
    2. Criminal law—hearsay. Testimony of a police officer, that defendant made it his business to solicit persons on the street and get them to a gambling house and “skin them up,’’ when he has not personally seen defendant so soliciting, is incompetent.
    Error to the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 12, 1913.
    Paul Kerz, for plaintiff in error.
    Louis H. Burrell, for defendant in error.
   Me. Justice Whitney

delivered the opinion of the court.

On January 9, 1912, the people filed a complaint before a justice of the peace against John P. Covey, charging that he being an idle and dissolute person did use certain unlawful games and was then and there a confidence man, and did then and there neglect all lawful business and then and there habitually misspent his time and frequented gambling and tippling houses; that on January 27, 1902, and December 17, 1908, he was convicted of crime punishable by imprisonment in state’s prison, or a house of correction, and had no lawful means of support and was a person lounging about and being in public gambling houses, and lounging about and being in tippling houses.

He was arrested, tried and convicted by a justice of the peace, and appeal taken to the Circuit Court, and was there again tried and convicted and sentenced to ninety days in the county jail, and pay a fine of $100, and afterwards, on the same day, and at the same term and before court had adjourned for the day, he was returned into court, and so much of the judgment imposing the fine upon him was stricken out, and he was resentenced to serve an imprisonment in the county jail ninety days. He brings the ease here by writ of error.

We have examined the evidence with great care. The plaintiff inverror is not shown thereby to be a vagabond or vagrant. He is shown thereby to own property. He is shown thereby to support his family and pay his bills promptly. He is shown by the evidence to be a gambler. The complaint did not charge merely that he was a gambler, and if he had been convicted of being a gambler, punishment by imprisonment in the county jail is not allowed therefor.

A police officer did testify that plaintiff in error made it his business to solicit persons on the street, and get them to a gambling house and skin them up, but it turned out this policeman knew nothing about it except from hearsay. The policeman never say him speak to any person whomsoever on the streets, hut some one else told him so, and the persons if any, who knew plaintiff in error solicited business for gaming houses, where the person solicited was to be fleeced, were not called as witnesses. There was not competent proof, except that he was a gambler, and that only by his own confession.

The statute in regard to vagabonds does not apply to this case. If the complaint had been that he was a gambler, he could have been convicted, but this punishment could not have been imposed. Reaching this conclusion renders it unnecessary to consider alleged errors in rulings on evidence and instructions.

Judgment reversed and cause remanded.

Reversed and remanded.


text:
    John Funk, Appellee, v. Chase Fowler, Appellant.
    Gen. No. 5,697.
    1. Equity—jurisdiction. A court of equity having acquired jurisdiction for one purpose may grant complete relief and do justice between the parties.
    2. Equity—possession of realty. Where the ownership of real estate is one of the questions at issue, a court of equity may decide questions as to the right of possession.
    3. Appeals and errors—sufficiency of transcript. Where there is an appeal based on the sufficiency of a hill to authorize a temporary injunction, enjoining the prosecution of a forcible detainer suit, appellant is not required to include evidence heard on the motions to grant or dissolve the injunction.
    4. Appeals and errors—presumption as to disposition of questions not hrought up on appeal. Where there is an appeal solely on the question of the sufficiency of a hill to authorize a temporary injunction, other questions are presumed to have been properly disposed of.
    5. Attorney and client—contract. A court of equity has jurisdiction to set aside portions of a contract improperly inserted by an attorney in a transaction with his client.

      6. Equity—jurisdiction. Where a lull alleges that- defendant, an attorney for complainant, induced complainant to sign a deed conveying certain property to him, representing that it was a contract of sale, the court has jurisdiction to determine the nature of the contract, to put into possession the party entitled thereto, to ascertain the rights of the parties hy an accounting, and determine the rights of a grantee of complainant.
    7. Injunction—when bill authorises temporary injunction. A bill alleging that defendant made an absolute conveyance of land to complainant in payment of certain debts, that afterwards defendant, as attorney for complainant, induced him to sign a deed of reconveyance, representing that it was an agreement to sell upon certain conditions, authorizes a temporary injunction enjoining defendant from prosecuting a forcible detainer suit against a grantee of complainant.
    Appeal from the Circuit Court of LaSalle county; the Hon. Edgab Eldeedge, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Rehearing denied April 15, 1913.
    McDougall & Chapman, for appellant.
    Lester H. Straws' and M. N, Armstrong, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee filed a bill in chancery containing certain allegations as to transactions between him and appellant resulting in certain contracts or agreements being entered into between the parties concerning certain real estate in the bill specifically described, and also resulting in a deed of the real estate from appellant to appellee, and a contract of purchase by which appellee agreed to convey said real estate to appellant.

The bill further alleged that confidential relations existed between appellee as client, and appellant as his attorney, during the times when these various contracts and said deed were executed, and that appellant had been guilty of fraudulent practices as to certain of said contracts while sustaining the confidential relation of appellee’s attorney and adviser with reference to the transactions out of which said contract and deed arose. It further alleged the commencement of forcible detainer proceedings by appellant against one Hans Vogel, Frances E. Vogel, and Mary A. Funk the wife of appellee mentioned in the bill as having been in some way connected with the title to the said real estate, or part thereof, and as having been in possession of said real estate, or some part thereof, at the time of the commencement of said forcible detainer proceedings.

The bill prayed for relief as to matters therein alleged and among other things prayed that appellant be enjoined from the further prosecution of said forcible detainer suit. To this bill appellant filed his answer and by it he did not raise any specific objection to the jurisdiction of a court of equity to hear and determine the subject-matter thereof. Having answered said bill appellant also filed his cross-bill invoking the jurisdiction of a court of equity to determine many, if not all of the matters alleged in the original bill. The matters alleged in the bill are common subjects of equity jurisdiction, and the injunction prayed for is merely an incident to the relief prayed on the other matters alleged.

A court, of equity having acquired jurisdiction of the case for one purpose has jurisdiction to grant complete relief and do justice between the parties, including the decision of questions of the right of possession of the real estate involved in the litigation where the ownership of the real estate is one of the questions at issue. Wehrheim v. Smith, 226 Ill. 346; Oberein v. Wells, 163 Ill. 101; Harding v. Fuller, 141 Ill. 308.

A reference to the master was ordered and the master took" and reported the proofs in the case. Thereafter, appellee moved for a temporary injunction pursuant to the prayer of his bill and upon the hearing of that motion the proofs taken before the master were offered and read in evidence. A temporary injunction was granted. Thereafter appellant moved to dissolve the injunction, and on the hearing of that motion appellee again offered the proofs taken before the master, and appellant offered certain affidavits and papers. The motion to dissolve was denied. Appellant had prayed an appeal from the order granting an injunction, and he also prayed an appeal from the order refusing to dissolve the injunction and having obtained an order of appeal in each case, he filed one bond as an appeal bond for both orders. The consolidating of the two appeals in that way is not objected to. He filed the record which contained a certificate of the trial judge showing what proofs appellee offered on the hearing of each motion, namely, the report by the master q£ the evidence taken before him, and also the certificate of evidence taken by appellant, reciting the substance of certain affidavits and documentary evidence which he presented on the hearing of the motion to dissolve a

Appellant did not include in the record filed by him the evidence heard in behalf of appellee on either of said motions; thereafter appellee sought in this court to compel the appellant to include in his transcript the evidence so offered by appellee on both motions, but appellant resisted the application on the ground he had the right to appeal solely on the proposition that the bill was insufficient to authorize an injunction, and that he was not compelled to bring up the proofs. We sustained this position and declined to compel appellant to bring up that evidence, and he has not done so. It therefore appears that evidence was heard on the motion for an injunction and on the motion to dissolve the injunction in behalf of appellee, which appellant has not brought up on his appeal. We must therefore assume that so far as the evidence goes, it was evidence authorizing the injunction and authorizing the denial of the motion to dissolve the injunction. The prayer of the bill was to enjoin the prosecution of a forcible detainer suit pending before a justice. The injunction was against the suit pending on appeal from the justice in the County Court. We must presume that the proofs showed, before injunction was applied for, the case had been disposed of in justice court and properly appealed to and properly pending in the County Court, and that it was the same suit. All questions of fact which could have been the subject of proof must be considered as disposed of in the court below properly in favor of appellee. Therefore, the cross-bill and answer thereto are not material on the hearing of this appeal. The only question which appellant has brought before us by the method in which he has made up the record is whether the bill authorizes an injunction. If it authorizes an injunction such as was granted then it also authorized the denial of the motion to dissolve that injunction before the case had been heard by the Circuit Court upon the merits.

The bill alleged that appellant had been the owner of certain land and had mortgaged it, and that appellee was his client, and that appellee loaned him various sums of money and became security for him on debts, and those debts were not paid; that appellant made an absolute conveyance of the land to appellee in payment of those debts, and thereby appellee became the owner; that afterward appellee sold a portion of the land to Vogel; that appellant had a tenant in possession whose term expired, and upon its expiration, Vogel took possession; that at sometime after the absolute deed had been given, appellant procured appellee to sign a certain paper which he represented to be an agreement by appellee to sell the premises to appellant upon certain conditions therein named, and appellee trusted appellant as his lawyer to properly draw the instrument and properly represent its contents, and that in the manner in which the papers were drawn, it was untruthfully made to appear that the deed from appellant to appellee was security for money, and that it was not an absolute deed, but merely a contract to sell back; that after appellant brought suit in forcible detainer against Vogel and his wife, and appellee’s wife, Vogel not desiring to be involved in litigation, conveyed with his wife the premises back to appellee, who is now the owner of the premises.

The bill asks that the last mentioned contract be canceled so far as it contained any words tending to show that the original deed from appellant to appellee was a mortgage only, and that said original deed be declared to be an absolute conveyance; that appellant be held to have forfeited the contract for reconveyance for failure to perform under it. The bill further prayed that in the alternative that if it be determined that appellant has any rights under said contract that there be an accounting, and the amount due be ascertained in order to pay him, and seeks various other relief.

The bill alleges matters of which a court of equity has jurisdiction, and this bill as here presented being accepted as true, and being sufficiently sworn to, as we hold that it is, in our opinion equity had jurisdiction to set aside any portion of the contract, which may have been improperly inserted by the lawyer against the client. It had jurisdiction to determine whether that, contract and the whole proceedings are in fact a mortgage, or an absolute conveyance and contract to reconvey. If appellant has any rights in the property yet, it has jurisdiction to ascertain what those rights are by an accounting between the parties. It will have jurisdiction to put into possession the person who shall finally be found to be entitled thereto, and if it should turn out that appellant was entitled to possession and was unlawfully deprived thereof by Vogel, as the grantee of appellee, and that appellee has availed himself thereof by the re-conveyance from Vogel to him, it has jurisdiction to award appellant suitable compensation for the loss of possession of the property pending the suit.

We are of the opinion the bill made a case authorizing the granting and continuance of the temporary injunction until the case is heard on the merits. The orders of the court below in granting the injunction and refusing to dissolve the injunction are therefore affirmed.

Affirmed.


text:
    Swedish Evangelical Lutheran Church of Moline, Appellee, v. City of Moline, Appellant.
    Gen. No. 5,700.
    1. - Injunction—when MU does not authorise. A hill filed by a church society to enjoin the city from erecting a canopy extending over a portion of the street used as a public market opposite the church, which does not aver that the church society will be injured in any other manner than other property owners in that locality, does not authorize the intervention of a court of equity.
    2. Injunction—MU to enjoin encroachment upon street. A private property owner cannot maintain a bill to enjoin an encroachment upon a street merely because it is a violation of the rights of the public since such rights can only be set up by some officer acting in behalf of the public.
    Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed March 12, 1913.
    Shallberg & Harper, for appellant; C. E. Dietz, of counsel.
    J. B. & J. L. Oakleaf, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

This is an appeal from an order denying a motion to dissolve an injunction issued on a bill in chancery filed by appellee against appellant, praying among other things that appellant be restrained, “from placing, erecting and maintaining any building, shed or structure on any of 13th street next south of Fifth avenue and for a distance of 150 feet therefrom, and from further occupying, closing and encroaching upon said part of said 13th street.”

The 13th street mentioned in the hill is in the city of Moline, and runs north and south, and the Fifth avenue therein mentioned crosses and runs east and west and at the southwest corner of said intersection is a lot, 80 feet wide on Fifth avenue and 150 feet long on 13th street, which appellee has owned for more than fifty years, and on which for thirty-six years it has had a large brick building facing north, which is occupied as a church. Across the street east from said church was a building running east and west and fronting west on 13th street, and owned by Deere & Company. In the spring of 1912, appellant obtained a lease of said building for one year, and opened therein a public market. It determined that to make the place sufficiently useful for a public market the west front should be opened and be protected from the sun and weather in the summer time by erecting over the sidewalk and parkway, some seventeen feet above the ground, a canopy or roof. Appellant proceeded to erect such roof or canopy and planned to erect it on posts set at the outer edge of this parkway. Appellant had procured from a railway company a building, the roof of which was proposed to be used to make the roof or canopy over the sidewalk and parkway. A part of it had been erected and the rest was being removed to the. place in question, when appellee filed a bill to enjoin the erection of said roof, canopy or shed over said street, and an injunction was granted without notice. Appellant filed an answer and affidavit therewith and moved to dissolve the injunction. That motion was heard and denied, and appellant brings an appeal to this court from the order refusing to dissolve the injunction. It is urged that the city could not appeal without giving an appeal bond, which it did not. We hold under the statute in that behalf a municipal corporation can appeal in such a case without giving bond. Various reasons are assigned why the injunction should be dissolved. We will pass over all the technical reasons and proceed to consider the reasons which we think go to the merits of the controversy. The bill is not filed by -the attorney-general or the state’s attorney by or in behalf of public interests. It is filed only by a property owner. The bill does not show by averments of fact that the church society will be injured by the building of this shed in any other manner than will other property owners generally in that locality be injured, therefore, it does not state a case authorizing the intervention of a court of equity.

A private property owner cannot maintain a bill to enjoin an encroachment upon a street merely because it may be a violation of the rights of the public. Those rights can only be set up by some officer acting in behalf of the public. Hamilton v. Semet Solvay Co., 227 Ill. 501, and cases therein cited.

The order denying the motion to dissolve the injunction will therefore be reversed and the cause remanded to the court below with directions to dissolve the injunction.

Reversed cmd remanded with directions.


text:
    William H. Smith, Appellant, v. Frank G. Young, Appellee.
    Gen. No. 5,703.
    1. Assumpsit—when no recovery on common counts. In assumpsit plaintiff cannot recover on the common counts on the ground that defendant promised to huy hack certain stock within a year if plaintiff was dissatisfied with it, where it appears that plaintiff asked defendant to huy hack the stock hut did not tender it.
    2. Evidence—when not error to permit an attorney of record to testify. It is not error for the court in its discretion to permit an. attorney of record in a case to testify though witnesses were excluded from the court room, especially where it does not appear that it was known when the motion to exclude was made that such attorney would become a material witness.
    3. Appeals and errors—what offer must tie made to avail of exclusion of question to witness. To avail of refusal to permit a question to a witness as to whether a certain book was a memorandum kept by him, such an offer must be made as to show that if it were admitted it would be incompetent and material testimony.
    4. Evidence—when not error to exclude testimony as to a document. It is not error to exclude testimony of a witness as to a certain document concerning a trip, the date of which was material, where the document itself was not offered; and it was not proved that it was made at the time or that it, had any date, and the witness was not asked to refresh his recollection by it.
    Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Vose & Creel, for appellant.
    W. L. Lttdolph and J. T. & S. B. Kenworthy, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellant sued appellee in assumpsit and filed a declaration consisting of four special counts and the common counts. Appellee pleaded the general issue. There as a jury trial and verdict for appellee. Appellant’s motion for a new trial was overruled, and appellee had judgment for costs and plaintiff below appeals.

The first special count alleged appellee was president of the Bock Island Tool Company, and sold appellant twenty shares of its capital stock for $2,000 cash, paid by appellant, and that as a part of the consideration appellee promised to take back said stock at any time within a year if appellant should become dissatisfied therewith, and that appellant became dissatisfied and tendered the stock back within one year, and appellee refused to receive it.

The second count is substantially the same but ends by charging that appellee refused to receive the stock back, or to pay for same.

The third count alleged a loan of $2,000 by appellant to appellee, and that appellee deposited twenty shares of said capital stock as collateral security for said loan.

The fourth count charged that in consideration that appellant would buy of appellee this twenty shares of stock appellee promised appellant that said stock was-of good merchantable valué, and a safe, secure and profitable investment for appellant to make; that the tool company was solvent, doing a profitable business and perfectly responsible and that the capital "stock was worth one hundred cents on the dollar; that appellant relied on these statements in buying said stock, and would not have made the purchase if it had not been for said statements, the truth of which appellee as president had means and was compelled to know; whereas, the stock had no good merchantable value, and was not a safe, secure and profitable investment, and that the tool company was not solvent, and was not doing a good profitable business, and was insolvent, and was soon after adjudged a bankrupt, and that said stock was of no value to appellant.

This fourth count would have been proper in an action for fraud and deceit. Appellant should have been required to elect, either to strike out the fourth count, and prosecute his action in assumpsit, or to abandon the other counts and change the form of action to case, and prosecute his action under the fourth count for fraud and deceit, but this was not asked in the court below. There was, however, no proof which would have authorized a recovery on the fourth, count. There is proof appellee made statements praising the value of this stock. The corporation had been organized but a few days when the stock was purchased. It was manufacturing vises in a small building, had ten to twenty men at work, and had some of the manufacturing material about the shop, which appellant saw before he purchased. There is nothing-in the evidence to show that the stock was not when purchased, of good marketable value, and nothing to show that it did not then appear to be a safe, secure and profitable investment, and there is no proof that the company was not then solvent, and doing a profitable business. There was no proof that the company was ever adjudged a bankrupt, or that this stock became of no value, or was of no value at the time of the trial.

Appellant testified in chief that appellee told him, when he afterward went to him to have him buy back the stock that the company was bankrupt, but on cross-examination it was developed that he only meant to testify that appellee told him he was not satisfied with the way the affairs of the company were running, and that it was running behind, and other like language from which the witness inferred that it was bankrupt. There was the further fact proved that appellant did not receive any dividend upon this stock. If the case had been tried upon the fourth count alone, and on this evidence, and there had been a verdict for appellant, it could not have been sustained for lack of proof of the allegations in that count.

The third count alleging the loan of money by appellant to appellee was not proved. Appellant dwells at length in his argument upon the common counts and urges that he could have recovered under the common counts, if he failed to prove the special counts, and that certain instructions given for appellee operated to prevent his recovery under the common counts. The law is well established where a contract has been completely performed on one side, and has been completely performed on the other side, except the payment of money, that -money can be recovered under the common counts, but if something more must be proved besides the existence of an indebtedness to authorize a recovery then a recovery cannot be had under the common counts. Here, appellant claimed to have produced testimony to the effect that when he bought the stock of appellee it was a part of the consideration on which he bought it, that appellee promised him that within a year if he should become dissatisfied with his investment, appellee would buy back his stock, and pay him for it the $2,000 which appellant had paid therefor, and that appellant went to appellee within one year and asked him to buy back the stock, and that he then had the stock in his possession, but did not tender or offer it to appellee because appellee told him he could not buy it back.

To recover it was necessary for appellant not only to establish that contract, and show he demanded within the year that he take back the stock, but also to show that he tendered the stock to him, or show an excuse for not actually tendering it, and then show he had kept that tender good, or had always been ready and able to deliver the stock to appellee whenever appellee would pay him the $2,000 and interest thereon. If he afterwards sold the stock to someone else, he could not have maintained this suit under the common counts because of his inability to turn the stock back.

We therefore conclude under the proof, appellant could not under any circumstances shown in the proofs, have recovered under the common counts. Even if as appellant argues there was some assurance by appellee that he might take the stock back at some later date, and even though it amounted to a binding promise, based on a sufficient consideration, still before he could recover he would have to show that he was able to perform his part by delivering the stock. If appellant had tendered the stock to appellee at the time in question and appellee had taken it but failed to pay, then there would have been such a complete performance by appellant, that he could have maintained an action under the common counts, but as long as the stock had not been delivered to and accepted by appellee, special averments were required, and the common counts alone were insufficient.

When the contract was made appellant and his two sons and appellee were present. Appellant and one of his sons testified in chief to a contract hy appellee to take the stock back within one year, and pay back the consideration if appellant wished. Appellant’s other son testified that what was said was that appellee desired of appellant, that if appellant should want to sell this stock, that he give appellee the first chance to buy it, and on cross-examination appellant abandoned the claim of a contract to buy it back, and gave the same version the other son gave on his direct examination, and that what appellee said was that if appellant desired to get rid of the stock he would have no trouble selling it, and that if he did desire to sell it, appellant in that event, would give appellee the first chance to buy it. The same is true of the cross-examination of the son, who on-direct examination testified to a promise to purchase.

The case therefore made by appellant was that he and one son testified to the contract in chief, and abandoned it on cross-examination, and that the other son agreed with their version on cross-examination and did not testify to a contract to take the stock back. Appellee testified positively denying he made any promise to re-purchase it and also testified he did not seek to have appellant buy the stock, but that appellant made application to him for it. If this were an action for fraud and deceit, it might be that evidence that appellee asked to have the first chance given bim to buy the stock back, might have some bearing if properly alleged, but it did not tend to establish a contract on which alone appellant must recover, if at all.

The state of the case therefore is that if the jury had found there was a contract by appellee to buy back this stock within one year, perhaps it could have been sustained, but the jury having found against appellant it cannot be said they have found so greatly against the weight of the .evidence that this court could set the verdict aside. The evidence strongly tended to show that appellant did not demand a re-purchase of the stock within one year as claimed by him, but at a considerable later date. On the subject of this date, complaint is made- that the court erred in permitting one Ludolph, who was one of the attorneys of record, whose name appears on page 10 of the transcript of the record, to testify for appellee, when he was of counsel for appellee, and had been present during the trial, when an order had been made excluding the witnesses from the courtroom.

The witness Ludolph, under the authority of Reavely v. Harris, 239 Ill. 526; Glanz v. Ziabek, 233 Ill. 22; Bishop v. Hilliard, 227 III. 382, and many other cases, was a competent witness. When the motion was made to exclude the witnesses, if the court had been told that an attorney might be called as a witness the court would have had a discretion not to exclude him because he was of counsel, and the court indicated in his ruling on the objection to this witness, that he hardly could have excluded counsel. If appellee had but one attorney, and that attorney was liable to be called, it probably would have been error for the court to exclude him, but further, when the order was made to exclude the witnesses (which order by the way is not contained in the bill of exceptions), it could not have been known or foreseen that the matter about which Ludolph did finally testify, was material. Upon interrogation on cross-examination to fix some date for ascertaining the time appellee visited appellant and demanded he take the stock back, he testified to a certain condition of a certain new building. Ludolph was the agent of the owner and had an office directly opposite the new building and knew when this condition was brought into effect, and Ms testimony was only as to the date when this bMlding came into the condition described by appellant, which date testified to by Ludolph was long after the expiration of one year i_om the purchase of the stock. We are of the opinion the court did not err in its ruling on that subject. Moreover it does not appear from anything in the record that at the time the motion to exclude the witnesses was made, Ludolph would be or would become a material witness in the case, and the matter about which he finally testified was simply as to the date at which a certain building came to a certain-stage of construction.

Appellant was called in rebuttal on this subject. He had stated that one of his two demands on appellee to buy back the stock was made right after a trip to Texas. He was shown a book and was asked whether or not that was a memorandum kept by him, and the date of his trip, and also whether it was a book of original entry. That was objected to and the court sustained the objection, and nothing further was offered. The exhibit is not in the bill of exceptions and no offer was made to prove that the entry was true, that it was made at the time, that the date therefore is correct, nor to prove what date would show.

If the court refuses to permit a question to be put of this character it is necessary in order to avail of it on error to make such an offer as to show the court that if it were admitted it would be competent and material testimony. Appellant did not offer the document itself, nor prove that it was made at the time, or that it had any date, and did not ask the witness to refresh his recollection by it. No error appears in that behalf. We see no reversible error in other rulings on evidence.

The modification of appellant’s fourth instruction in our judgment did not harm appellant, although we think that modification was unnecessary, because we think it was clear appellee understood when appellant came to him, that he was ready to deliver the stock to him, if he would have taken it.

Appellant complains of the refusal of his ninth instruction. This instruction was on the question of thi, preponderance of evidence, which instruction seems to have been held good in McFarland v. People, 72 Ill. 368, but that decision was overruled in Johnson v. People, 140 Ill. 350, and the rule in Johnson v. People has been followed in Lasher v. Colton, 80 Ill. App. 75; Leek v. People, 118 Ill. App. 514; Holmes v. Horn, 120 Ill. App. 359; Beckstrom v. Krone, 125 Ill. App. 376.

Under the evidence we see no reversible error in the giving of any of the instructions for appellee. The judgment is affirmed.

Affirmed.


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    John Kasicki, Appellee, v. Vulcan Detinning Company, Appellant.
    Gen. No. 5,706.
    Master and servant—when servant assumes risk. Plaintiff, a man forty years of age and in the ordinary use of his faculties, assumed the risk of injury from tin falling through cracks in a platform under which he worked, where the cracks had been present for years and plaintiff who had worked there for some time knew of the danger, though he had complained and was told that repairs would be made when work was not being carried on, or that he would not be hurt.
    Appeal from the Circuit Court of LaSalle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1912.
    ' Reversed with finding of facts.
    Opinion filed March 12, 1913.
    Rehearing denied April 3, 1913.
    William H. Boys, H. L. Bicholson and Frank M. Cox, for appellant.
    Lucey & Larkin, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee sued appellant for damages under an alleged claim of injury while in appellant’s employ. A trial was had by jury which resulted in a judgment against appellant for $3,500 from which judgment this appeal is prayed. Appellee was employed by appellant in its detinning factory at Streator. Inside of a building a railroad track ran north and south on a trestle. On each side of this railroad track was a platform about three feet wide, and from the platform on each side a chute went down at an angle and dropped the scrap tin as it was shoveled from the cars on either side to the ground beneath. This chute extended outward from the trestle. Employes working under this chute pulled the scrap tin out with a hook, and then with a four tined fork pitched it into baskets, and after it was pitched into the baskets other men than those who did the pitching packed the material down in a basket with some kind of a hammer or weight and then the baskets were placed on the car which ran on a track underneath the center of the upper track or trestle. On the last- mentioned car the baskets were carried to another part of the factory where the business was conducted of detaching the tin from the metal. The man who did the pitching of the scrap tin underneath the chute did his work underneath the trestle platform. In this trestle platform over the place where appellee worked as a pitcher were cracks, some an inch wide and some half an inch wide, and some less, and dust and small pieces of tin would fall through and onto the men working below at times. The men below the trestle platform worked with gloves to protect their hands from the tin which they handled and pitched, and some had wrappings around their arms also. It is apparent these men knew that if their flesh came in contact with these pieces of scrap tin, they were liable to be cut. The places where the pitching and loading of the baskets was done were called “stalls,” and appellee had worked in the building several years and had even worked in the stalls and worked sometimes in the particular stall where he claimed he had been hurt. He claimed a piece of tin came through one of these cracks in the trestle platform and hit him in the eye, the ultimate result of which was he lost the sight of one eye, and he sued for damages.

There were three original counts and one additional count in the declaration. It was charged to be negligence to have these cracks through which the scrap tin could come, and that appellee did not have any appreciative knowledge of the danger to his person. Some of the counts charged a complaint made by appellee and a promise by appellant to repair and in others a complaint made by appellee and an assurance of safety made by appellant. Complaint is made upon rulings, upon instructions and upon the evidence. We find no error in these rulings. s Appellant offered a very large number of instructions of very great length. It was an unreasonable burden to impose upon the court to ask so many instructions in so simple a case. We think everything to which appellant was entitled was included in the instructions given for it, but if somewhere in the maze of the lengthy refused instructions some legal proposition is contained to which appellant was entitled, yet the court is not subject to criticism in failing to find it. We are however, of the opinion that the evidence does not make a case under the declaration. It is doubtful whether appellee was struck in his eye by a piece of tin coming through one of the cracks in the trestle platform, bio one knows" how he was hurt but himself. He testified the tin that struck him in the eye caine from the chute above, but he also testified he wore a cap with a peak in front, and that he was not looking up at the time he was hurt. He was at work pitching or forking a mass of scrap tin that stood in front of him, more than breast high, and pitching it into baskets. It is just as reasonable to believe some piece of tin flew up from the tin in front of him while he was pitching it into the basket, as to believe that it was a piece of tin that came through one of the cracks in the trestle platform.

We hold that whether the piece of tin came from above or from the pile of tin he was pitching into the basket, it was an injury such as reasonably could have happened, and was a risk of his employment which he assumed.

By the testimony it appears that the men were hit on the hands by tin they were handling because they wore gloves to protect them, and some of the more careful ones also wore some kind of wrappings about the sleeves of their coats. It is not a reasonable conclusion from the evidence that he was hit by scrap tin coming from above when he testifies that he was at work pitching tin into baskets, and that he was not looking up when he was injured, and that he had a cap with a peak on it. Another peculiar thing about the evidence is that it appears therefrom that the one who was assisting him at the basket did not know appellee was hurt until the following evening, and no one else knew it who was a witness in the case.

Assuming for the purposes of this decision that the piece of tin which injured appellee came from above through one of those cracks, those cracks had been there for years according to the evidence. Appellee knew they were there and complained about them several times, beginning his complaints about a year before he as injured. He testified that he complained because he was afraid he would get hurt by falling tin. He therefore knew the danger. Even if he had not testified that he knew pieces of tin and dust were coming down through these cracks for years and liable to come at any time, the obvious danger from falling pieces of tin is so simple a matter that it would be known to anyone. Appellee was forty years of age, in the ordinary use of his faculties, and he, like anyone else, must have known that if he turned his face up when tin was coming down, and was struck anywhere on the face or eyes, he would be hurt by these sharp pieces of tin.

If this danger was such that any person of ordinary intellig-ence would know that it would naturally follow from the defect complained of in the declaration, knowledge of the defect carried with it knowledge of the danger, and the risk of injury was assumed. Montgomery Coal Co. v. Barringer, 218 Ill. 327.

Inasmuch as tfie condition was known to him, as well as the master, the dang'er must have been known to him just as much as it was known to the master, and it was a simple matter, having no reference to any complicated machinery, we regard it as clear that he assumed the risk of working there, and this assumption of risk on his part cannot be avoided by the fact that he frequently complained to someone in authority of the falling of the tin, and said he feared it would hurt him, and was told it would be repaired at some time when they were not at work, or told that it would not hurt him.

Arriving as we do, at the conclusion that the. evidence will not sustain the judgment, it becomes unnecessary for us to discuss further the rulings upon evidence and upon instructions. The judgment of the court below is reversed.

Reversed loith finding of facts.

Finding of facts to be incorporated in the judgment: We find that appellee assumed the risk of working under the conditions which caused the injury to him, and that such assumption of risk was not obviated by any complaint or promise to repair, or assurance of safety, and that the conditions were simple, and that the danger would be known to any man of ordinary experience.


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    Ajax-Grieb Rubber Company, Appellant, v. W. A. Gray, Appellee.
    Gen. No. 5,711.
    1. Corporations—foreign. A foreign corporation which carries no stock of goods and fills no orders in this state, but sells and ships its goods from its main office in another state, is not doing business within this state under the terms of the statute requiring foreign corporations to obtain a license.
    2. Appeals and errors—final judgment. A judgment for defendant on demurrer to a replication, not providing that plaintiff “take nothing by this suit” or that “defendant go hence without day,” is not a final judgment, and an appeal therefrom will be dismissed.
    Appeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1912.
    Dismissed.
    Opinion filed March 12, 1913.
    Bjrk & Shurtleff, for appellant.
    Charles C. Dutch, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellant sued appellee in the County Court of Peoria county for goods, wares and merchandise sold and delivered. Appellee filed a plea, (whether it was in proper form is not argued, and we do not determine it,) the body of which was that appellant was a nonresident foreign corporation, chartered under the laws of New Jersey, and had not complied with the statute of the state of Illinois, nor obtained a certificate from the secretary of state of Illinois, authorizing it to do business in Illinois; that when the several promises averred in the declaration were made, appellant maintained a branch office in Chicago, and that from said branch office its agents traveled throughout the state 'soliciting and taking orders for merchandise, which orders were forwarded to such branch office for approval or rejection, and that the orders given by appellee here sued on were contracted with the agent of appellant under the direction of said Chicago office, and were by said agent forwarded to said Chicago office and there approved, and that therefore appellant could not maintain this action under the provision of the statutes of Illinois, forbidding a foreign corporation to do business in this state without filing certain papers and obtaining a certain license from the secretary of state, and denying to foreign corporations doing business in this state, the right to bring an action in the courts of this state, without complying with said statute. Appellant filed an amended replication to this plea, and the record of the court recites that the court sustained the demurrer thereto, and appellant elected to abide by his amended replication, and judgment was rendered in favor of appellee against appellant for costs. This is an appeal from that judgment. The record is certified to be the whole of the original record in the case. The record is exceedingly defective, and the judgment is not a final judgment. It should have been that the plaintiff take nothing by this suit, and that defendant go hence without day. People v. Board of Education Dist. No. 24, 236 Ill. 154; Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200; Seghetti v. B. F. Barry Coal Co., 164 Ill. App. 488. Under these decisions we must dismiss this appeal, but as other questions have been argued, we think it best to indicate our views upon them. The record is also defective in that though certified to be complete, there is no demurrer, and we have no means of knowing whether it was general or special. The replication is, on its face, double, and a special demurrer for duplicity would have been good. The main body of the replication admits all of the allegations as to its being a foreign corporation, and not having complied with the statute at the time these contracts were made. It admits appellant maintained a branch office in Chicago and that its agents traveled therefrom throughout this state soliciting and taking orders for merchandise. It denied that such orders when taken were forwarded to said branch office in Chicago for approval or rejection. It alleged appellant carried no goods in stock in Illinois, filled no orders in Illinois, and shipped no goods from within Illinois, and that no one in said Chicago branch office had authority to receive or approve orders solicited and received in Illinois, nor did anyone there receive and approve and fill or ship orders. It is alleged that the agent in question traveled out under the direction of the New York office of appellant, and that appellant also corresponded with appellee from its New York office, and that these contracts with appellee were made at its New York office, and that orders taken by said agent were not forwarded by said agent to the Chicago office and there approved, but were forwarded to the New York office for approval, and that said orders were received by appellant, and accepted and approved at the New York office, and that all goods sold and delivered by appellant to appellee were shipped into the state of Illinois to appellee from without the state of Illinois, and that these are the contracts upon which it sued.

Under the principles stated and authorities discussed by us in Havens & Geddes Co. v. Diamond, 93 Ill. App. 557, this is not a doing business within the state of Illinois. There has been a change in the statute since the suit in which that decision was rendered, but the change is not material to this question. It is clear, a general demurrer to said replication, if one was interposed, should have been overruled, and whether it should be carried back to the plea we leave for further determination. There is no final judgment in the court below and the parties can, if they see fit, adjust their pleadings in accordance with the views herein expressed. Appeal dismissed.

Dismissed.


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    John Howard, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 5,713.
    1. Master and servant—“res ipsa loquitur.” Where plaintiff, a railroad gate keeper, was injured by an iron blow pipe flying out from a rapidly passing engine, the doctrine of res ipsa loquitur applies, since somewhere on some engine of defendant, a blow pipe must have been insufficiently áttached, and the inspection was not sufficiently careful to ascertain that fact.
    2. Master and servant—“res ipsa loquitur.” The rule that the doctrine of res ipsa loquitur does not apply in cases between master and servant, is not a hard and fast one, arbitrary in its application, but is applicable where the servant is the same as a stranger as to the operation of the particular thing or instrumentality causing the injury.
    3. Jury—circuit court may call. Where a county board fails to perform its duty in making up jury lists, the circuit court has inherent right to cause a jury to be summoned, and a motion to quash such a special venire is properly overruled.
    Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    J. L. 0 ’Donnell, T. F. Donovan and J. A. Brat, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    J. W. D’Arcy, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee was a gate tender for appellant on the ninth day of February, 1910, at the time he received the injuries for which this suit was brought, and had been since July, 1907. At the time he received these injuries he was tending the gate across Main street in Braidwood. On the day in question about half past three in the afternoon a fast train of appellant was approaching Braidwood from the sonth running at the rate of between 50 and 60 miles an hour, and was not due to stop at Braidwood. As the train was approaching Main street crossing appellee lowered the gates and stepped back into the middle of the street, and about 30 feet back from the railroad tracks, because as he testified he was hired by Mr. Lukowski, the section foreman, and received his instructions from him about his duties when lowering and raising the gates when trains were approaching, and keeping children off the track that might be attempting to cross as trains were approaching, and other obstructions.

Appellee stepped back into the street as he testified so as to be ready to stop school children from crossing. While in this position he was seriously injured in a most peculiar manner. When the train reached the crossing an iron pipe some ten feet or more in length and an inch or more in diameter, weighing about forty pounds, flew out from the track knocked him down, broke his leg, rendered him unconscious and otherwise severely injured him. For these injuries appellfee brought suit and recovered a verdict and judgment for $2,750 from which this appeal is prosecuted.

Numerous errors are assigned among which are rulings on evidence and instructions. So far as the rulings on evidence are concerned we can say in passing, some of the rulings on evidence about which complaint is made are not based on any objection made at the trial, and we see no reversible error in the remainder thereof. There is nothing reversible in the errors alleged in the giving of two of appellee’s instructions complained of. While the seventh instruction is not proper in form because it contains the statement, “and from all of the other facts and circumstances appearing on the trial,” yet we fail to see how it worked any injury to appellant. Complaint is also made that the trial court did not sustain a motion made on the 14th day of March, 1912, to quash the venire for the jurors summoned by the sheriff from the body of the county by order of the court. It appears from the record that a challenge to a former array of jurors was sustained on March 13,1912, because of the irregularity in drawing and summoning the jurors, due to the fact that the county board had failed to make up jury lists as required by the statute. We are of the opinion that the failure of the county board to perform its duty, cannot deprive the Circuit Court of the power to try jury cases. ‘This failure of the county board to make up jury lists, would in such case absolutely prevent any jury trials in the Circuit Court, if that court did not have the inherent right to cause a jury to be summoned, if no statutory way were provided. Healy v. People, 177 Ill. 306; Rockford Ins. Co. v. Nelson, 75 Ill. 548. The case of People v. Rodenberg, 254 Ill. 386, cited by appellant does not seem to be in point or decisive of the question. Wé see no error in overruling the motion to quash the special venire.

We come now to the real merits of this appeal. Does or does not the doctrine of res ipsa loquitur apply to this case. The substance of the facts briefly stated is that this piece of iron pipe was found to be the blow pipe of an engine. The engineer of the train testified:

That the train passed Braidwood along about 3:20 or 3:25 p. m. ; that it was late there about ten minutes; that it went over Main street crossing probably 45 to 50 miles an hour; that he was going right along; that they pick up speed there if they can; that as the train went over the Braidwood crossing he saw two or three men standing east of the crossing; that he saw an object, he could not state whether it was a pipe or not, going in the direction the train was going; that it went very fast, about two or three feet from the ground toward the men he saw standing there; that when he first saw the object the train was five or ten feet south of the crossing shanty; that he saw the object strike the man, and saw the man fall.

The piece of pipe that was found was worn smooth on one end and marks were found on the ties south of this crossing for about one mile and a half. About one mile and a half south of Main street a piece of metal was found between the tracks soon afterwards, which was a piece into which a blow pipe is screwed. The pipe found at the place where the accident occurred was ascertained to be a blow pipe, after it had been sent to Bloomington the next day.

Appellant introduced evidence to the effect that the engine drawing this train was a 600 style engine and that all blow pipes on all engines of that class had been removed a few days before the accident, because of their liability to freeze. Appellant also introduced evidence that this blow pipe belonged to an engine of the 400 class, and that no 400 class engine had been over the road that day.

The marks on the ties were not there when the section men went over the tracks south of Main street in the forenoon and afternoon. The accident happened about half past three in the afternoon. The marks were found there afterward. Appellee could not say where the pipe came from. It may have been on the engine notwithstanding the testimony that all of the blow pipes had been taken off the 600 class engines before. Appellant may have failed to remove this one, and it may have been on, and might become loosened and begin to drag about one mile and a half south of Braidwood and finally become detached and thrown from the train. It may have been detached from some other engine that day notwithstanding appellant’s testimony that no such engine had passed over the road that day. The great speed at which the train was going just before and at the time pf the accident may have caused the train to pick up, carry along and hurl off at the crossing this piece of pipe, (although it seems incredible that such a thing could happen, with a pipe weighing forty pounds) however, something was thrown off by this train. The engineer saw it going through the air and saw it hit and knock down the man, and it was afterward found to be the blow pipe from an engine. It seems highly improbable that appellant had not found a blow pipe missing on some engine, but appellee had no way of ascertaining what some officer or employe of appellant, in some branch of the service might have known about it.

It is our conclusion that the doctrine of res ipsa loquitur applies. There is no proof that an accident had happened which could detach such a pipe; but from the fact that the train hurled off what was afterward found to be a blow pipe, and that appellee was hit by a blow pipe, as appears to us to have been conclusively proven, it also seems to us that it is just as conclusively proven that somewhere on some train or engine of appellant a blow pipe was insufficiently attached, and that the inspection was not sufficiently careful to ascertain that fact.

Three important facts are fully established, namely, that appellee was seriously injured while attending to his duties as gate keeper; that he was injured by a blow pipe thrown from this engine or train of appellant, and that appellee had nothing whatever to do with the operation of either the engine or train.

Whether appellee was in the exercise of due care for his own safety was a question of fact to be decided by the jury, and they decided that he was in the exercise of such care. Argument is made that on the approach of the train, appellee’s place was in the crossing-shanty, and that had he remained there no accident would have occurred. It will be borne in mind that appellee testified he had been instructed by the man who employed him to keep children off the crossing upon the approach of trains, while LukowsM, who testified that he hired appellee, further testified that he did not think he ever told appellee to look out and not let children under the gates, etc., but he further testified he had seen appellee out there warning children back a number of times. The jury have passed on the question of the exercise of due care by appellee, and we are not disposed to disturb their finding. We do not think appellee assumed the risk of the happening of such a strange accident as this is proven to have been.

We are aware of the conflict of authorities regarding the application of the doctrine of res ipsa loquitur in a case where a servant sues a master. There exists a general rule, so to speak, that in cases between the master and servant the doctrine has no application. We do not believe however> this rule is a hard and fast one, arbitrary in its application, like say the rule in “Shelly’s case.”

The reason for the rulé is undoubtedly that where the servant is operating the instrumentality that causes the injury it cannot be determined how much his own negligence may have had to do with the happening of the accident, to, with, or by that instrumentality, but applying the well known legal maxim that when the reason for the rule ceases, the rule itself ceases, we think the principle of res ipsa loquitur ought to apply in a case where the servant is the same as a stranger as to the operation of the particular thing causing the injury. There is no question but what appellant owed appellee the duty to afford him a reasonably safe place to work. That appellee was in the line of his duty when injured is clear from the evidence, and that he was in the exercise of due care for his own safety has been found by the jury from the evidence, and the evidence shows appellee was injured by circumstances with which he had nothing to do, and that those circumstances were under the control of appellant.

We are of the opinion that the circumstances surrounding the case as shown by the proof, amounted to evidence from which the jury were warranted in finding in the first instance the fact of the negligence alleged and that if the jury did not believe from the evidence that appellant liad rebutted the inference raised by the prima facie case thus made, then they were warranted in finding appellant guilty. Heimberger v. Elliott Frog & Switch Co., 165 Ill. App. 316; Elvis v. Lumaghi Coal Co., 140 Ill. App. 112; Goddard v. Enzler, 123 Ill. App. 108; Illinois Cent. R. Co. v. Prickett, 109 Ill. App. 468.

judgment affirmed.

Affirmed.


text:
    Charles C. Wright, Appellee, v. Fred Sipple, Appellant.
    Gen. No. 5,714.
    1. Conversion—When contract of defendant to sell goods after trial is begun improperly admitted. In an action for conversion it is improper to admit a contract whereby defendant sold the goods in question after the action was begun, if it is introduced to prove conversion after the beginning of the action.
    2. Conversion—when shown. Conversion is shown where plaintiff shows that defendant locked up goods, which he, plaintiff, had bought and partly paid for and prevented his having access to them.
    3. Conversion—what evidence proper as to defendant’s treatment of goods after the beginning of the trial. A contract whereby defendant, in an action for conversion, sold the goods in question after the beginning of the action is competent as showing that when defendant locked up the goods before the action he meant thereby to possess himself thereof and its admission is not made erroneous by the fact that such sale is consistent with defendant’s testimony that he bought the goods of plaintiff on a settlement.
    4. Evidence—what instruction misleading. An instruction that if the evidence on any question is equally balanced it should be answered against the party having the burden of the issue is apt to mislead when the burden of the issue is not explained though there are two issues, and each of the parties has the burden of proving one of them.
    5. Evidence—instructions. In an action for conversion, an instruction is improper which is to the effect that plaintiff must satisfy the jury throughout the entire case of the correctness of his story.
    Appeal from the County Court of Will county; the Hon. George J. Cowing, ■ Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    At/rurt H. Krusemark, for appellant.
    F. M. Fahey, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee sued appellant for the unlawful conversion of some blacksmith tools before a justice of the peace in Will county, and appealed to the County Court where the appeal was tried and appellee had a verdict and judgment for $15 for the value of the goods, and appellant brings the case here on appeal.

Appellee bought some blacksmith tools of appellant and had partly but not wholly paid for same, when according to appellee’s testimony, appellant went to his shop and locked it up and forbid him, using the tools again until they were paid for. Appellant’s testimony tended to show instead, he and appellee had a settlement by which he took the tools in payment of the balance due. Which version was true was a question of fact for the jury. Their decision in favor of appellee cannot be here disturbed unless the court erred in rulings on evidence and instructions.

Appellee introduced in chief a contract whereby appellant sold these tools to another person a month or two after this suit was begun, and appellant contends that sale was erroneously admitted. It was not competent to prove that after this suit was begun, the defendant converted the goods to his own use, and if that alone was the purpose of the proof, it was improper; but we can see it was not the purpose for which it was offered and admitted. It is to be remembered that when this proof was offered and admitted it was in the presentation of appellee’s proof in chief, and appellant’s testimony that he claimed a contract between himself and appellee by which the goods were his in satisfaction of a debt, had not been presented. As the case then stood appellee had proved that appellant locked up the goods and prevented his having access to them, and thereby converted them. That this would be a conversion is shown in 1 Chitty’s Pleading in discussing the subject of “Trover.” We think this contract was competent, not as showing a conversion at the date it was made, but as showing that when appellant locked up the goods, before suit was begun, he meant thereby to possess himself of the goods absolutely. His subsequent act of selling illustrated his previous act in seizing and showing he thereby intended to take the goods. Such a taking of the goods in the absence of an agreement was of course unlawful. The fact that it afterwards turned out said subsequent sale would also be consistent with appellant’s testimony that he bought these goods of appellee on a settlement, did not make the admission in evidence of the contract of sale erroneous.

Complaint is made of the refusal of appellant’s instructions 18, 20 and 21. Instruction 18 was to the effect that if the evidence was equally balanced on any question, the jury should answer it against the party who had the burden of the issue. It did not explain, however, what was meant by the burden of the issue, and was liable to be misunderstood by the jury. There were in fact two issues, one whether appellant illegally took this property, on which the burden was on appellee, and another where appellant set up another contract between himself and appellee by which the goods were to be his, upon which, the burden was upon appellant.

Instructions 2 and 4 given at the request of appellee sufficiently instructed the jury on those issues so far as appellee was concerned. Instruction 15 sufficiently instructed the jury upon appellant’s behalf on this subject. Instruction 20 was to the effect that appellee had to satisfy the jury throughout the entire case of the correctness of his story, whereas there might have been matters in his story that were immaterial to the issues. It was further to the effect that in a certain condition of the testimony the jury had some doubt in their minds. We think this was an improper instruction.

The duty of appellee to prove his case by a preponderance of the evidence and the result from failure to do so were clearly set out in the 14th instruction, given at the request of appellant. Instruction 21 would have been good if the burden had been upon appellee upon all of the issues, but it was erroneous as applied to the issue where the burden rested upon appellant to prove a subsequent contract by which these goods became appellee’s.

Judgment is affirmed.

Affirmed.


text:
    John Anderson, Appellee, v. Theodore Strawn, Appellant.
    Gen. No. 5,717.

      Automobiles—when verdict against weight of evidence. Verdict for plaintiff in an action for personal injuries caused by the alleged negligence of defendant in driving his automobile at more than fifteen miles per hour and in not stopping when plaintiffs horse appeared frightened. Held, against weight of evidence.
    Appeal from the Circuit Court of LaSalle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with finding of fact.
    Opinion filed March 12, 1913.
    Rehearing denied April 8, 1913.
    Lester H. Strawn, for appellant.
    Egbert Carr and Butters & Armstrong, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee brought an action in case against appellant to recover for personal injuries alleged to have been received on account of the negligence of appellant in driving an automobile. A trial thereof was had resulting in a verdict and judgment for appellee of $400 from which this appeal is prosecuted.

The declaration contains five counts. The first count charged that appellant drove an automobile with great force and violence against appellee. The second count charged that appellant drove an automobile towards appellee’s horse when said horse was greatly frightened. The third that appellant, contrary to the statute, drove an automobile at a greater rate of speed than fifteen miles an hour, whereby appellee’s horse became frightened, etc. The fourth count charged that appellant failed to bring his automobile to a stop when approaching appellee’s horse, which appeared to be frightened, and the fifth that appellant wantonly and wilfully drove his automobile toward.appellee’s horse when the horse was frightened, etc.

We are satisfied from the evidence that appellant cannot be held guilty unless it be on the third count which charges the running of an automobile at a-greater rate of speed than fifteen miles an hour, whereby appellee’s horse became frightened; or upon the fourth count charging appellant did not come to a full stop when appellee’s horse appeared to be frightened, and as to these points the holding of appellant guilty or not depends on which side the evidence preponderates on the alleged negligence charged by said counts, or one or the other of them.

There were but four witnesses to the accident, namely, appellee, who may be said to be interested, on the one side and appellant, who may be said to have a like interest, and his cousin and sister on the other. On the one side appellee alone testified as to appellant’s speed in excess of 15 miles an hour. He alone also testified that the automobile first stopped within 8 or 10 or 12 feet of him, then started up and ran by him very fast.

On the other side appellant supported by two witnesses testified to a speed of less than 15 miles per hour and that the automobile stopped 50 or 60 feet from appellee and that the power was shut off and that the automobile did not again start until after appellee was injured.

It appears to us, the whole evidence considered, that appellant and his two witnesses were better qualified to judge and were in a better position than appellee to know about the rate of speed of the automobile, and when and where it stopped, and whether or not the power was shut off. It clearly appears to us that the verdict is against the weight of the evidence, and that the trial court should have granted a new trial for that reason, and erred in not so doing.

It is the right and duty of the Appellate Court to reverse judgments of trial courts and verdicts of juries when they are found to be clearly against the weight of the evidence. Donelson v. East St. Louis & S. Ry. Co., 235 Ill. 625; Chicago & A. R. Co. v. Heinrich, 157 Ill. 388.

Having found that the trial court committed error in refusing to set aside the verdict and grant a new trial for the reason the verdict is not supported by the weight of the evidence, it will not be necessary to pass on any of the other errors assigned, and the weight of the evidence not authorizing the verdict, and the whole evidence as appears by the record being before the court, so far as it can be obtained, the judgment of the court below is reversed without remanding.

Judgment reversed without remanding.

Reversed with finding of fact.

Finding of fact to be incorporated in the judgment: We find that appellant is not guilty of the negligence charged in any count of the declaration.


text:
    State Bank of Rock Island, Appellee, v. Harry E. Brown, Appellant.
    Gen. No. 5,720.
    1. Bills and notes—general issue. In an action on an accommodation note by one who purchased it from the payee, evidence of an extension is admissible under the general issue.
    2. Evidence—where question is too general. Where plaintiff, a bank, sues on a note purchased of the payee, a question of defendant asking the witness where the payee did its banking business while in business is too general and properly excluded.
    3. Bills and notes—evidence as to consideration. In an action on a note, testimony as to consideration is properly excluded, where there is no plea under which such evidence is competent and it is not cross-examination as to anything testified to in chief.

      4. Bills and notes—burden of proof. In an action on a note, the burden of proving that an extension made by plaintiff, the holder, was with knowledge that defendant was an accommodation maker is iipon defendant.
    5. Bills and notes—questions of fact. The question as to whether plaintiff, the holder of a note, made an extension with knowledge that defendant was an accommodation maker is one of fact for the jury.
    6. Bills and notes—when instructions properly modified. In an action on an accommodation note, where there are several makers and only one defends, the instructions are properly modified to relate to him only.
    7. Evidence—instructions. An instruction directing the jury to take into consideration the apparent consistency, fairness and congruity of the evidence, without saying anything about the lack thereof is properly refused.
    Appeal from County Court of Rock Island* county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Rehearing denied April 15, 1913.
    Searle & Marshall and Harry E. Brown, for appellant.
    J. T. and S. B. Kenworthy, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellant and three other makers were sued upon a promissory note signed by them as makers, dated January 19, 1907, for $3,000 payable 90 days after date to the order of Concrete Construction Company, with interest at six per cent, per annum, which note was indorsed by the Concrete Construction Company to appellee. Appellant pleaded the general issue. It seems the other defendants did not plead. There was a jury trial and a verdict and judgment for appellee and against the defendants in the court below for $3879.11 from which the appellant Brown alone, appeals.

The facts were that the makers of this note were accommodation makers at the request of the Concrete Construction Company, and that the Concrete Construction Company sold it to appellee to reduce its obligation to appellee. When the note became due appellant was asked to sign a renewal note and refused. Another note was signed by all the makers of the first note except appellant for $3,000 dated April 19, 1907, due 90 days after date; and the interest on the debt for the ensuing ninety days, that is to July 18, 1907, was paid and indorsed. This second note was for the same debt and amounted to an extension of the original note.

It is the contention of appellant that the same rule applies to an accommodation maker as to a surety, and that the extension of this note without the consent of appellant released him, if the holder at the time of the extension, or before, knew that he was an accommodation maker only.

It is the contention of appellee that an accommodation maker is liable to the holder in any event, and that the extension does not release him, and that also the defense of extension cannot be availed of under the general issue.

We are not called upon to determine this contention, for the court below adopted the theory of the law advanced by appellant and held under the authority of Harrison v. Thackaberry, 248 Ill. 512, evidence of an extension admissible under the general issue and instructed the jury in conformity with appellant’s theory by instruction offered by him, and modified by the court, and given as instruction No. 5. If appellee’s view is correct, appellant has no defense. Appellant cannot complain that the court below tried the case on the theory of the law most favorable to himself. This left the only controversy one of fact, as to whether appellee when it granted this extension knew that appellant was an accommodation maker. Appellant contends the court erroneously refused to permit him to ask his witness Bryan the following question: “During the time that the Concrete Construction Company was in business, where did it do its banking business ? ’ ’ This ruling is not shown to be erroneous. The question was too general. It covered all of the time that the Concrete Construction Company was in business, •and was not limited to the date of this transaction. It does not appear that it was material where it did its banking business. To save any question, appellant should have made an offer of - what he expected to prove in answer to this question. If the answer had been that it did its banking business with appellee, we do not see then that it would have benefitted appellant.

Appellant asked the president on cross-examination what consideration passed from appellee to the Concrete Construction Company for the note, and also whether it was received in payment of a prior existing debt of the Concrete Construction Company. There was no plea under which such evidence would have been competent, and such questions were not cross-examination on anything testified to in chief. Those are the only rulings on evidence of which complaint is now made.

A witness testified for appellant that before the extension the president of appellee was informed that appellant was an accommodation maker. The president positively denied any snch information was conveyed to him, or that he knew that fact at that time. The burden of proving that the extension was with the knowledge of appellee that appellant was an accommodation maker was upon appellant. It was a question of fact for the jury. The jury may have seen that in the demeanor of appellant’s witnesses on that subject, which caused it to consider the evidence of appellee’s president the more trustworthy. The trial judge approved the verdict, which under the instructions, was based simply upon the determination of a question of fact.

Appellant complains of the modification of said fifth instruction. The instruction as drawn alluded to it as an accommodation note of all the makers. Appellant only was defending and the court properly so modified it as to make it relate only as to appellant as an accommodation maker.

Complaint is made of the refusal of the seventh instruction requested by appellant. Said instruction is not sufficiently full. It directed the jury to take into consideration “the apparent consistency, fairness and congruity of the evidence” and did not say anything about the lack thereof, or the apparent inconsistency and unfairness of the evidence, which was a matter which should have been included in the instruction, if it was given. In Bleich v. People, 227 Ill. 80, it is said: “The court can scarcely commit error in refusing instructions designed to influence the jury in passing upon the credibility of witnesses.”

We see no error in the refusal of this instruction. The judgment is affirmed.

Affirmed.


text:
    Henry Buchholz, Appellee, v. Paul Feustel, Appellant.
    Gen. No. 5,727.
    1. Statute of frauds—promise to pay judgment rendered against security on a note. Where plaintiff is required to pay a judgment rendered against him on a note which he signed as security for defendant, the promise of defendant to reimburse him need not be in writing.
    2. Bankruptcy—discharge as a defense. Defendant’s discharge in bankruptcy, after signing a note, does not constitute a defense to an action by plaintiff who signed the note as security and was required to pay.
    3. Contracts—conditional promises. A promise to pay “when I get the big church built” is not conditional but only fixes the time of payment.
    4. Instructions—when not supported 6y evidence. An instruction as to the effect of a conditional promise is properly refused where there is no proof of such a promise.
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Seusseb, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Shopen & Paulson, for appellant.
    P. C. Tyrrell, for appellee; Fischer & Fischer, of counsel.
   Mr. Justice Whitney

delivered the opinion of the ■ court.

Appellee was security for appellant on a note and was sued and judgment rendered against him, and he paid the judgment. Appellant was discharged in bankruptcy in 1896, after the signing of said note. In 1908, appellee sued appellant to recover the amount he paid on the judgment and filed a declaration in which he set up the facts in regard to the judgment and the note on which judgment was recovered and the payment of the judgment, together with the common counts. Appellant pleaded the general issue and his discharge in bankruptcy. To the latter plea appellee replied that his cause of action arose after the discharge in bankruptcy. Upon a jury trial appellee had a judgment for $700, from which the defendant below appeals.

The only question of fact disputed is whether there was any promise of appellant to pay appellee, and next whether that promise was conditional or not. This promise, if any promis^ was made, was a promise not to pay a note, but rather a promise to pay appellee the amount he was required to pay on a judgment rendered against him and appellant on a note they had both signed, therefore the point made that the promise must be in writing to be good, is not well taken.

Appellee and one witness testified to the conversation out of which the promise is alleged to have arisen, and they state it somewhat differently on direct and cross-examination but it is clear that appellant made a positive promise to pay appellee according to the evidence of appellee and his witness. Appellee and his witness stated that appellant promised to pay appellee, and again they stated that appellant promised to pay appellee when he got a certain church done, and again they stated that he promised to pay when he was able, coupled with the statement that he was making money fast.

The discharge in bankruptcy pleaded did not annul the original liability of the debtor, but only suspended the right of action therefor. Mallin v. Wenham, 209 Ill. 252.

The promises testified to by appellee and his witness were not conditional promises. If appellant had said, “If I get the contract to build the big church, I will pay you,” that would be a conditional promise, and it would be essential to prove that he did get the contract •to build the big church, but when he says, “I will pay you when I get the big church built, ’ ’ that only fixes the time when he will pay it.

Under the authority of Walker v. Freeman, 209 Ill. 17, and the cases therein cited, and Pinney v. Smith, 136 Ill. App. 129, the promise testified to by appellee and his witness was not a conditional promise, bnt fin absolute one, and made appellant liable.

One of the promises was to pay as soon as he was able, and it was proved appellant said he was making money fast, which was evidence tending to show ability.

Appellant contends it was error to refuse his instruction to the effect that if the jury believed a conditional promise had been made, then there could be no recovery unless the condition was shown to have- been fulfilled or removed. As there is no proof of a conditional promise in the record, the instruction was properly refused.

Appellant contends that the court should have given an instruction apprising the jury of the legal effect of the promise proved. If he desired such an instruction, he should have prepared and offered it.

As the case was tried, it was a question of fact whether or not a promise had been made. Appellee had two witnesses to one for appellant, and the jury believed the two, and the trial judge approved it. We are of the opinion the verdict and judgment were just.

Judgment affirmed.

'Affirmed.