text:
    Kankakee & South Western Railroad Company v. Matthew Fitzgerald.
    1. Contract under seal—Verbal agreement.—As the contract'granting the right of way through appellee’s farm and defining the duties of the company as to fences, was under seal, it was error to admit parol evidence to show that at the time of the delivery of the deed there was a verbal agreement between appellee and the company’s agent that the fences should be built before the railroad was constructed.
    2. Same—Reasonable time.—If such contract failed to fix definitely the time within which the fences were to be built, the law would supply the omission by saying it should he done within a reasonable time, and what was a reasonable time would be a question of fact for the jury.
    3. Damages.—In assessing damages the direct and immediate consequences of the injurious act are to he regarded, and not remote, speculative and contingent consequences, which the party injured might easily have avoided by his own act.
    4. Actions.—Damages for a failure to fence under the contract can he recovered in this action on the case.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed December 4, 1885.
    In 1882, appellant (defendant below) was engaged in building a railroad from Kankakee to Bloomington, which was to pass through appellee’s farm. July 10th of that year appellant and appellee entered into a contract relative to the right of way through the farm, whereby appellee agreed to convey a strip of land one hundred feet wide through his farm. This agreement contained the following provisions:
    “ The company agrees to build good fences and three farm crossings, and pay me $500 for my land, and for the consideration aforesaid, I do hereby give and grant to said company the right to enter upon and take and hold possession irrevocably of the said strip of land for the purpose aforesaid, and forever acquit the said Kankakee and Southwestern Railroad Company from all claims for damages done or committed to my lands in the construction of said railroad.”
    In pursuance of this contract, in October of that year appellee executed and delivered to appellant, through one Weinland, its agent, a warranty deed of the premises. This was a plain deed without any special provisions. Appellant, upon the receipt of the deed, paid the amount of the consideration money.
    In the fall of the same year, appellant’s gang of men entered into possession of the tract of land so conveyed, and built its track through appellee’s land and about half a mile beyond, and then was compelled to cease operations, by reason of the bad weather, till spring. About the middle of April of the next year it recommenced its work and finished its road, building its permanent fence in May before the railroad was open for business.
    Early in December, 1882, after the work had ceased on the track, appellant sent a lot of men, who strung two barbed wires along the telegraph poles, setting two posts between each two poles, for the purpose of a temporary fence. The evidence is conflicting as to whether or not this fence would turn cattle and horses.
    It was claimed by appellee on the trial that he refused to deliver the deed to Weinland until the latter promised to build a fence along both sides of the right of way before the end fences were broken down. This was strenuously denied, both by Weinland and the notary who was present and took the acknowledgment. Appellee in this is corroborated to some extent by one or two of his children.
    After the wire was strung appellant took off its force of builders and did not return till April. Some time after the grading was done, appellee complained to appellants engineer, Healey, in charge of the building of the road, that' the workmen had plowed up some of his tile running across the right of way. The evidence tends to show that appellee promised Healey to get a man to fix the tile, and Healey agreed to furnish the new tile and to pay for the fixing. The tile were furnished and scattered along the right of way.
    Appellee did nothing toward getting a man to lay them, hut instead, says that he lost several hundred bushels of corn the next season for want of the drainage of the land, and that by reason of the tile being up, the rest of his drain north of the track got so full of mud that it would have to be taken up, and so complained to Healey the next season; whereupon Healey got a number of neighbors and appellee himself, and upon examination found that the tiles, in several places a hundred or so feet apart, were free from mud, but that the mouth of the drain was lower than the outlet, so that the drain was useless. Appellee claims that he was compelled to herd his cattle and hogs during the entire winter, at a cost of about §30 a month, to save his crops, but that a large part of the crops were destroyed by the cattle and hogs, notwithstanding. This evidence was admitted over objection. It was also proved that about one tenth of an acre of land was plowed up and dirt taken from it to put on the right of way.
    The declaration contains five counts. The third was the only one that claims anything about the agreement as to the building of the fence, herding cattle or the destruction of the crops by the cattle. The court sustained a demurrer to this count, but admitted, over objection, evidence showing the damage sustained in this respect. All that was claimed by the counts of the decoration other than the third was in regard to the tile drains being torn up, so that in consequence thereof the land of the plaintiff was overflowed, twenty acres submerged and twenty acres of corn, wheat and oats destroyed, and the land of plaintiff trampled upon, and holes dug therein and dirt taken therefrom. A few days after the suit was commenced, appellant tendered $25 to plaintiff, which was refused ; appellant paid that sum into court, when it pleaded in the case.
    Messrs. Williams & Caper, for appellant;
    that where parties reduce their contract to writing, the law presumes that the whole terms and conditions of the agreement are fully incorporated in and become a part of the written instrument, cited Conwell v. S. & N. W. R. R. Co., 81 Ill. 232; C. & V. R. R. Co. v. Parker, 84 Ill. 613; Weaver v. Fries, 85 Ill. 356; M. Ins. Co. v. Faynes, 87 Ill. 199; Wood v. Surrells, 89 Ill. 107; Andrews v. Mann, 92 Ill. 40; Seymour v. Belding, 83 Ill. 222; Driver v. Ford, 90 Ill. 595.
    Damages for a breach of contract can not be joined with a count in trespass. And also, in an action of trespass, damages for a breach of contract can not be recovered: Tidd’s Practice, *11; Chitty Pl. 229, and note; Stephen on Pl. *267; Krug v. Ward, 77 Ill. 603; Noetling v. Wright, 72 Id. 390; Hays v. Borders, 1 Gilm. 46; Brady v. Spurck, 27 Ill. 478; Dalson v. Bradberry, 50 Id. 82.
    Whenever a party is damaged by the wrongful act or default of another, it is his duty to make his damages as small as he reasonably can ; and for any damages he could by proper exertions have prevented, he can not recover: Sedgwick on Measure of Damages, 93.
    Messrs. Stevenson & Ewing, for appellee.
   Conger, J.

The contract granting the right of way through appellee’s farm and defining the duties of the company in reference to fencing, was under seal, and could not be modified, changed or enlarged by parol. Chapman v. McGrew, 20 Ill. 101; Hume v. Taylor, 63 Ill. 43; Barnett v. Barnes, 73 Ill. 216.

Hence, it follows that the admission of parol evidence, to show that at the time of the delivery of the deed there was a verbal agreement entered into between appellee and the agent of appellant that the fences should be built before the railroad was constructed, was error.

The rights of the parties were fixed by the sealed contract of July 10th, and the attempt to show by parol the promise and undertaking of the company at the time of the delivery of the deed, must of necessity be a modification of the terms of that contract, or, an attempt to show a new and distinct agreement which would require a new consideration to support it. There was no new consideration, for appellee was required by his contract of July 10th to execute a deed upon the receipt of the §500; therefore the delivery of the deed was but the compliance upon the part of appellee with his duty, and could not form a consideration for a new and independent agreement.

The contract of July 10th, failing to fix definitely the time within which the fences were to be built, the law supplies the omission by saying it should be done within a reasonable time, and that is a question of fact to be determined by the jury from all the circumstances of the case. It may be they would consider such reasonable time under all the circumstances of this case to be, when the company took possession of the land for the purpose of constructing its road; but we think the court should have left this question to them, and not attempted by instructions, to define it.

We think the evidence in reference to the expense of herding appellee’s cattle through the winter to prevent their destroying the corn, was improperly admitted. The immediate damage to the corn, done by appellee’s cattle, if caused by the wrongful tearing down of appellee’s fences by appellant, and until such reasonable time as appellee could take measures to protect himself, would be proper for the consideration of the jui'y-

In addition to that, the measure of damages would be the value of the pasture lost, and such other reasonable expenses as appellee would incur in removing his stock to another pasture.

It was appellee’s duty to make his damages as small as ho reasonably could under the circumstances.

It is not reasonable to suppose that if appellee had been endeavoring in good faith to protect his crops by the smallest reasonable outlay of money, he would have permitted them to run in a field with (as he claims) an insufficient fence to keep them from destroying his crop, and employed herders through the winter to watch them.

The principle is well defined in Loker v. Damon, 17 Picl. 284, where the court say :

“ In assessing damages, the direct and immediate consequences of the injurious act are to be regarded, and not remote, speculative, and contingent consequences, which the party injured might easily have avoided by his own act. Suppose a man should enter his neighbor’s field unlawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner oces the gate open, and passes it frequently, and willfully or obstinately, or through gross negligence, leaves it open all summer, and cattle get in, it is his own folly.”

If the damages to appellee’s tile drain was a necessary consequence of a proper construction of the road bed, the company would not be liable therefor, as they are by the contract of July 10th, expressly released “ from all claims for damages done or committed to my (appellee’s) land in the construction of said railroad.”

If, on the contrary, such drain was wantonly, or negligently injured by the company without it being necessary so to do, then the measure of damages would be the expense of repairing it. The company offered to pay the expenses of such rejiairs, brought the tile upon the ground and authorized appellee to enter upon their right of way and have the drain reconstructed. Appellee can not, under such circumstances, stand idly by and permit his ground to be overflowed and his crops destroyed, and seek to hold the company responsible.

The doctrine already alluded to, that it is always one’s duty to make his damages as small as he reasonably can, seems to be peculiarly applicable to this branch of the case.

It is urged that the claim for damages for failing to fence, must necessarily be made in an action ex contractu, and could not therefore be recoverable in this form of action. This objection is not well taken, as it is held in Conger v. C. & R. I. R. R. Co., 15 Ill. 366, that an action on the case will lie in an action similar to this.

From a careful inspection of the record, we are unable to find any replication to, or joinder of issues upon, any of the pleas filed; but under the authority of Seavey v. Rogers, 69 Ill. 534, we have not regarded this as fatal, but upon another trial let the issues be settled before submitting the case to the jury.

For the errors indicated the judgment will be reversed, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Conger, J.

license: Public Domain

text:
    John A. Delano et al. v. Gardner Case.
    1. Banks—Action by depositor against directors’negligence.— An action on the case by a depositor against the directors of a bank for gross negligence in allowing an insolvent bank to advertise and continue to do business, where the slightest examination of the bank’s affairs by the directors would have disclosed the fact that the bank was utterly insolvent. Held, that such action will lie.
    2. Duties oe directors.—Directors are not merely agents, but are, as well, trustees for the bank, the stockholders and the depositors, and to each they owe duties for a violation of which the law will hold them liable.
    Appeal from the Circuit Court of Macoupin county; the Hon. W. R. Welch, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Palmers, Robinson & Shutt, for appellants;
    that the directors are not liable for mere non-feasance, cited Fusz v. Spaunhorst, 67 Mo. 257; Harman v. Tappenden, 1 East, 555; Zinn v. Mendel, 9 W. Va. 580; Hodges v. New England Screw Co., 53 Am. Dec. 637; Shearman & Redfield on Negligence, § 111; Crowley v. Smith, 31 Albany Law Journal, 471.
    Messrs. Greene, Burnett & Humphrey, for appellee;
    as to duties of directors, cited Morse on Banking, 116; Shea v. Mabrey, 1 R. I. Lea (Tenn.), 319 United Society, etc., v. Underwood, 9 Bush (Ky.), 609.
   Conger, J.

This was an action on the case. The declaration . charges substantially, that on the first day of July, 1877, “the Bunker Hill Bank.” was a body corporate, etc., engaged in the business of banking, receiving money on deposit, etc., and so continued up to October 22, 1877, when it closed its doors and ceased payment. That on the 30tlx day of July, 1877, appellee was a creditor and. depositor of said bank to the amount of §1,164.57, and that relying on the solvency of the bank he continued from' time to time to make deposits up to and including October 6th, when the bank owed him for money so deposited and for interest, §5,000. That long before the 1st of July, 1877, and until it failed, the bank was insolvent and that appellee never received payment ; avers that it was the duty of appellants, who were directors of the bank, to ascertain and know the financial condition of said bank, to examine at short intervals into its affairs, and if they had performed their duty in that respect they would have known by the exercise of ordinary care that the banHwas- totally insolvent long-before and during all the time appellee was making-hisAspojits. Charges that they wholly failed in this respect, but held out the bank to the public during all this-time as financially safe and solvent. Whereby appellee was deceived and defrauded into making such deposits, and in consequence lost them. Trial in the circuit court and judgment for appellee for §2,370.50. Without attempting to give even a synopisis of the evidence we think it establishes upon the part of the appellants and their co-directors the grossest negligence and incompetency. After the bank had suspended and a full examination was had, it appeared that Beach, the cashier, and Compaton, the assistant, cashier, had been for some time systematically robbing it. The general ledger on Dec. 31, 1876, showed the total amount due j depositors to be §11,350.73, while in truth the bank actually owed to depositors on that day $36,77 9.27, as shown by another book in the bank, called’the .individual ledger. On Sept. 18, 1877, the general ledger showed the amount due from the bank to depositors to. be §10,368.65, whereas the true amount as shown by the individual ledger was §49,616.50, showing a discrepancy of §39,247.85. So too in the accounts showing the amounts of outstanding certificates of deposit on the 1st of September, 1877, the difference between the amount shown upon the general ledger and the true amount was §32,422.56. In short, it appears that during all the summer and fall of 1877 the difference between the amounts these officers were reporting to the directors and the examining committee, as ■the indebtedness of the bank, and the true amount was about §75,000. Mr. Mayfield, an expert, agreed upon by the parties, and appointed by the circuit court to make this examination, says: “The true condition of the bank at the dates named, as appearing from the books by my examination, was insolvent, very much so, and the ..books very plainly show, it at the date of each and every exhibit I have attached hereto. An ordinarily careful examination of the_ books of the bank at any time during 1877 would have disclosed irregularities of the cashier and the insolvency of the bank. If they had examined the books in a proper manner they would have discovered the very glaring discrepancy in the condition of the certificates of deposit, as shown by the stub book and the general ledger. If the directors examined the books and counted the cash, they could locate the day of its first discovery.” The degree of care and diligence on the part of the directory and the finance committee is shown by the testimony of the president, Mr. Klinefelter. He says: “That he was president of the Bunker Hill bank and was also a director and stockholder. Became president in the year 1870 and continued to be so until the failure of the bank in 1877. The defendants were all connected with the bank, at the time of the failure, as directors, and had been so connected with the bank before that time for three years. The stockholders elected the directors and the directors elected the officers. The bank ceased to do business October 20, 1877. The bank closed because it had been robbed by the cashier and assistant and was insolvent. Don’t know how long before the failure of the bank it was robbed. When it closed the money was all gone except abont 88,000. Oan not tell how much money there ought to have been in the bank. While he was president the affairs of the bank were managed by the directors. The directors met once a year to elect officers and declare dividends. About once a month the finance committee counted the money, and returned to Mr. Beach, the cashier. What he did with it he had no idea. The finance committee, in 1877, were directors Cross, Bahr and himself. Can not say that the finance committee at any time made any great investigation. It met once a month as a general thing, would look over the accounts, count the money and hand it back to the cashier. Did not examine and verify the books, and compare their statements with the assets, etc., which the books called for; and no such examinations were made by any of the directors to his knowledge. Beach was cashier of the bank from the time of its organization. Compton was first a clerk, and then assistant cashier many years. Some ten months before the failure of the bank witness suspected that Compton was stealing from the bank. Witness thought that he was spending too much money buying property, living extravagantly in Bunker Hill, and traveling. After he conceived the suspicion in regard to Compton, he and Cross went around and notified the directors of his belief that Compton was stealing from the bank. They refused to believe it. Saw all the directors except Bauman. They would not believe anything was wrong. Motliing more was done, but witness went to the bank and told Beach and Compton what his suspicions were. This was abont ten months before the failure. Supposes that the reason that the directors would not believe him was that they thought Beach and Compton honest men. They were such good praying men. He thought after he talked to them that they were honest; and no more examination was made afterward than was usual before. The assets of the bank consisted of notes, accounts, real estate and money. He made no examination after the failure.” It appears that the following card had been published in the local paper for a considerable time before the failure of the bank :

“Bunker Hill Bank, Bunker Hill, Illinois, incorporated by the legislature, capital fifty thousand dollars. Authorized capital, two hundred thousand dollars. A general banking business transacted, collections made, and proceeds promptly remitted. Interest allowed on time deposits. Special attention paid to savings department. Interest compounded every six months. Exchange sold on Great Britain or Europe.

John Klinefelter, President.

J. A. Delano, Vice President.

James A. Beach,

Cashier.”

TJpon the foregoing facts the question arises, are the directors liable individually to depositors in an action on the case. There is no question that agents of individuals or corporations are not, in general, liable to third persons for mere non-feasance, or omission of duty in the course of their employment. Their liability in such case is solely to the principal Appellants insist, with great earnestness, that they stand upon the smie footing, and their liability is to be determined by the same general principles as other agents, and they cite some authorities which seem to sustain this view. In Harman v. Tappenden, 1 East, 555, it was held that “to support an action against an individual on account of his vote, or other act done by him as a member of a corporation, it is not enough that he acted erroneously or by mistake, but it must appear that he acted willfully and maliciously or fraudulently with intent to injure the plaintiff.” This case, however, grew out of an alleged negligent action of the corporators, by which another corporation lost certain rights and privileges as a member of a fish corporation, and in our judgment bears no analogy to the case at bar. In Vose v. Grant, 15 Mass. 505, where the facts were that plaintiff had bought up the bills of an insolvent bank, and was complaining of the official action of the propri, etor in dividing up the capital stock of the bank some three years prior thereto, the court say if plaintiff intended when buying the bills on speculation to buy also a right of action against the stockholders for a tort previously committed by them, his purpose was unlawful and no such right of action was or could be assigned to him. It is also held that the stockholders were not liable to an action on account of a mistaken opinion, or vote, expressed or given at a legal meeting. But the court are constrained to say in conclusion that the creditors ought to be paid out of those funds formerly withdrawn, and suggest a possible remedy in chancery. In Fusz v. Spaunhorst, 67 Mo. 257; the question before the court is one of statutory and not common law liability, and hence the remarks of the court upon this question can only be regarded as dicta.

The case of Conley v. Smith, 46 N. J. 380, was an action for deceit by a depositor against a director of a bank, for false representations made as to the solvency of the bank, and the case turned upon the question whether it was necessary to show that the party making the representations knew at the time they were false, "and it was held such knowledge was essential to sustain the action. The case of Zinn v. Mendel, 9 W. Va. 580, holds the doctrine as contended for by appellants, that directors of banks are only liable to third persons for misfeasance. There are other cases which allude more or less directly to the question, but they are generally affected by statutory provisions, and are therefore of no authority as definitions of common law liability.

We are thus left with but little assistance from adjudicated cases. Those holding the doctrine contended for by appellants, seem to base it entirely upon the idea that directors of banks are no more than mere servants and agents of the corporation, owing no duly to the public, and hence not liable for any omission, or negligence, however gross and reckless. We can not concede that directors of banks are no more than mere servants and agents. They are this it is true, but they are more. They are trustees for the bank, the stockholders and the depositors, and to each they owe duties, for a violation of .which, the law will hold them liable.

In Morse on Banking, 116, it is said : If bank directors do not manage the affairs and business of the bank according to the charter and in good faith, they will be liable to make good all.losses which their misconduct may inflict upon the stockholders, creditors or both.” Bank directors are not mere agents, like cashiers, tellers and clerks. They are trustees for the stockholders, and as to their dealing with the bank, they not only act for it and in its name, but in a qualified sense, are the bank itself. The community have a right to assume that the directory docs its duty, and to hold them personally liable for neglecting it. Their contract is not alone with the bank. They invite the public to deal with the corporation, and when one accepts their invitation, he has a right to expect reasonable diligence and good faith at their hands, and if they fail in either they violate a duty they owe not only to the stockholders, but to the creditors and ] atrons of the corporation.” United Society of Shakers v. Underwood, 9 Bush. 609; see also Shea v. Mabrey, 1 R. J. Lea (Tenn.) 319; Thompson’s Liability of Directors,” 395 ; Percy et al. v. Millandon, 3 Louisiana, 585. In the latter case, upon the ground of gross negligence, or wanton disregard of duty, the directors of a bank were held responsible to the stockholders for losses to the bank occasioned by acts of the following character: Permitting the president and cashier to discount notes from the funds of the bank, without the assent and intervention of five directors as required by the rules and regulations of the bank. Permitting purchases to be made of the stock of the bank out of the funds of the bank by the president and cashier, at a rate above the known true value thereof, or allowing them to take and use the money of the bank, contrary to the rules and regulations thereof. And Mr. Wharton, in his work on negligence, after quoting the above language, adds: “ Uow far similar doctrines will be adopted in courts sitting under the jurisdiction of the common law remains for future discussion in those courts, as I am not aware that the question has as yet been directly litigated therein. Butthere can belittle doubt that these doctrines are just conclusions from the general law of mandates.” Sec. 510. Ordinarily the character of the directory for integrity and business capacity measures the degree of confidence reposed in the corporation by the public. Were depositors when intrusting to a bank their entire fortune, to be informed that the directors, upon whose honor and careful watchfulness they were relying, owed them no duty, were under no obligations to take at least reasonable precautions to guard their money from the itching fingers of dishonorable officials, they would certainly hesitate long beofore surrendering it upon such terms. There are many risks i and uncertainties against which a prudent business man never i expects the directors or managers of banks to insure him. He knows that for the usual hazards of business he must look to ! the bank alone. That for the ordinary negligence of directors j they are responsible alone to their principal, but for such gross negligence or incompetency as shows a reckless disregard of their duty to care for and protect the funds committed to their charge, we think they are directly responsible to the deopositor. In this case the directors were notified ten months before the failure, by the president, of his suspicions that - Compton was stealing from the bank, when the slightest examination would have exposed the true state of affairs and protected subsequent depositors. Ho examination whatever - was made. Under such circumstances there was clearly another duty which the directors owed to the community. If they Imew that the bank was insolvent, or if their suspicions were aroused, and they recklessly closed their eyes and made no effort to discover the truth, it was their duty not to receive the money of depositors ignorant of the true state of affairs. Tocdo so when they had but a suspicion of the danger would be a great wrong, and if with full knowledge, would now be a felony. If we are correct in these, views, it follows that appellants owed a duty to appellee, which they have not performed, in consequence of which he has been injured and for which he ought to have a remedy, for it is a maxim of the common law, that a man specially injured by the breach of duty in another should have his remedy by action.

The judgment of the circuit court will be affirmed.

Affirmed.


author: Pleasants, J.

text:
    Elliott Callender, etc., v. Sarah G. Roberts et al.
    Usury.-—Brokers negotiating loans of other people’s money may charge the borrower commissions without thereby making the loan at the full rate of legal interest usurious, where there is no arrangement with the lender that commissions shall be charged by the agent.
    Appeal from, the Circuit Court of Tazewell county; the Hon. N. M. Laws, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. William Don Maus, for appellant;
    that it was not usury, cited Palmer v. Call, 12 Reporter, 194; Daywell v. Wigley, 11 East, 43; Salarte v. Melville, 7 B. & C. 430; Coster v. Delworth, 8 Cow. 299; Condit v. Baldwin, 21 N. Y. 219; Smith v. Marvin, 27 Ib. 137; Bell v. Day, 32 Ib. 165; Baxter v. Buck, 10 Vt. 548; Muir v. Savings Inst., 16 N. J. Eq. 537; Conover v. Van Mater, 18 Ib. 486; Rogers v. Buckingham, 33 Conn. 81; Hopkins v. Baker, 2 P. & H. (Va.) 110; Barrett v. Snowden, 5 Wend. 181; Gokey v. Knapp, 44 Ia. 32; 17 Albany Law J. 116; Manning v. Young, 28 N. J. Eq. 568; White v. Dwyer, 31 Ib. 40; Estevez v. Purdy, 66 N. Y. 446; Stout v. Rider, 12 Hun, 574; Brigham v. Myers, 51 Ia. 397; Omaha Hotel Co. v. Young, 97 U. S. 13; Hoyt v. Pawtucket Inst., etc., 110 Ill. 390; Ballinger v. Bourland, 87 Ill. 513; Cox v. Mass. Life Ins. Co., Chicago Legal News, No. 33, p. 271.
    Mr. B. S. Pkettyman, for appellees;
    cited Payne v. Newcomb, 100 Ill. 611; Omstead v. N. E. Mfg. Co. 11 Neb. 487; N. E. Mfg. Co. v. Hendrickson, 15 C. L. J. 132; Philo v. Butterfield, 3 Neb. 256; Chany v. White, 5 Neb. 261; Chany v. Woodruff, 6 Neb. 151.
   Pleasants, J.

Appellees are the widow, heirs and admin. istrator of Caesar A. Roberts, who, with said Sarah GL, his wife, on Sept. 13, 1873, executed a deed of trust of his residence property in Pekin to Win. H. Robinson as trustee, and naming appellant as his successor in case of his death, to secure a mortgage bond of said Roberts of that date to Dana D. Dickinson for $2,500, due in five years, with interest until paid at ten per cent, per annum, payable semi-annually, on the first days of December and June of each year, with coupons for the same attached.

Robinson died in 1880 and Roberts in October, 1883. This bill was filed December 15, 1883, to foreclose said deed, claiming as due and unpaid the whole of said principal sum and interest thereon from December 1, 1883, together with $25 for premium paid on a policy of insurance, and $125 for attorney’s fees under the provisions thereof.

The widow and heirs ansveied, setting up the defense of usury and payment; that no money was advanced or loaned to said Roberts at the time of the execution of said papers ; that he received from Robinson, as the agent of Dickinson, $1,500 on September 15th, $500 on October 9th, and $360 on ¡November 7th, all inl873, and no more; that $140 were usuriously retained by Robinson as agent, and with the kpowledge and consent of Dickinson; and that the whole of said principal sum had been paid. Upon the pleadings and proofs the bill was dismissed, and complainant appealed.

The evidence shows that Dickinson was a resident of Williamsville, Yt., and that having learned from Malcolm ¡Moody, assistant treasurer of the Vermont Savings Bank of Brattleboro, that said bank was loaning money at different points in the Western States, he intrusted to him $2,500, to be loaned for said Dickinson; that Moody sent the same to Robinson & Callender, loan brokers at Peoria, Ill., for that purpose; that the loan in question was made by Robinson to Roberts, and the bond, coupons and trust deed, together with the application by said Roberts for the loan, were sent to Moody, who delivered them to Dickinson; that the interest was paid to Robinson until his death and by him remitted to Moody, who paid it over to Dickinson, and that after his death it was paid to Callender and Ayres, successor to the business of Robinson and Callender, and by them remitted directly to Dickinson.

Assuming that Robinson retained the amount for commissions as alleged, there is no reliable evidence that in so doing he acted as the agent of Dickinson, or that Dickinson expected it would be done, or knew it had been until long after, or' ever ratified or in any way became responsible for it. Even supposing that Robinson was his general agent in making the loan, any' presumption from that fact that he knew usury would be or was taken was fully overcome by the testimony of Moody. Excluding all of that testimony that was objected to as hearsay or as a conclusion of the witness, the inf elenco from what is clearly competent is irresistible that Dickinson had no acquaintance or correspondence, nor any dealing directly or indirectly with Robinson or Robinson and Callender until long after the loan was made; and the facts are established with reasonable certainty that until he received the papers from Moody he had no reason to know or suspect that his money would be loaned by him or them, or in Illinois, or for any particular rate of interest. He stipulated for nothing of the kind, suggested no rate or minimum of interest, nor any place or agency for the transaction of the business; nor is there any evidence that Moody or the bank of which he was an officer had ever received or taken, through their broker or others, directly or indirectly, by way of commissions to such agents, or otherwise, any usurious interest whatever.

But itis said that Dickinson ratified the acts of Robinson after full information of them. A letter from Roberts to him of August 9, 1883, and his answer thereto of August 20th, were produced and relied on as establishing this fact.

That letter inclosed one from Callender and Ayres to Roberts of July 12, 1883, advising him that the loan worfd mature in September then next and that some change in it would have to be made, and that if he could not then pay it in full they would take $1,000 on account and extend the remainder for five years at eight per cent, with the option of payment at any time within that period. Referring to their letter, Roberts, in his, recites the terms of the loan as first made and state 3-,

“When Eobinson and Callender came to pay me the money they deducted five per cent., $125, as commission and fifteen dollars for making papers, etc.;” that he had paid the interest regularly—the last in June preceding, when nothing was said by them about paying the principal; that then1 letter inclosed took him by surprise and he felt it a hardship to be brought up on such short notice face to face with terms he could not meet; and proceeding as follows: “ I have done all the business with your said agents, taking it for granted that you were at all times advised of and satisfied with what they did. They gave me the money, took the commissions or rather retained them out of the money, collected the interest, received the insurance policies, and now propose to collect the money, which I supposed had all been done with your knowledge, consent and approbation. How is that, and will you now authorize them to make such further terms with me in regard to the matter as we can agree upon? Please let me hear from you at your earliest convenience.” The answer was as follows: “ Tour letter of August 9th at hand, and the statement you make relative to the loan is correct. Also that the interest has been paid promptly. All this I admit, and have allowed the loan to remain five years since it was due, by your promptness; but now I am in want of the money and wrote to Callender and Ayres (I think in June) to that effect. I would like the whole amount ($2,500) but if it is not convenient for you to pay it all now, will comply with proposition Callender and Ayres made you; that is, pay me $1,000 of the loan and the balance to extend five years longer, with the present security, at eight per cent, interest, etc. If you can pay it all now it will oblige me much.”

Eoberts was a practicing lawyer. He caused his letter to be carefully copied, the copy to be carefully compared with the original and the latter to be duly stamped and mailed by a third party. Dickinson was a lumber dealer. To him the points of that letter from Eoberts would appear to be the writer’s surprise at the demand for payment of the principal on such short notice and its consequent hardship, his claim to indulgence in view of his past promptness in respect to the interest, and his understanding that Callender and Ayres were acting under his instructions in making the demand and would not be likely to extend the desired indulgence without his express authority, which was therefore asked.

The brief statement about the charge for commissions and making the papers appears to be unimportant of itself, incidentally made and so overlaid by the other matter as to make but little or no impression and call for no specific answer. Apart from other evidence the general admission in his reply is far from having a clear reference to it, and under the circumstances, we are satisfied, had none at all. The supposition of Boberts, as stated, was that Dickinson had been “ at all times advised of and satisfied with what they did; ” that it “had all been done with his knowledge, consent and approbation.” If, by fair construction, the admission, of itself alone, might be taken to include the retention of commission or the delay of delivery of the money by Bobinson, it was such an admission as might be explained or shown to have been erroneous in fact; and it was so shown by the testimony of Moody. He was not advised of these acts of Bobinson at the time and did not approve or consent to them. Nor did Moody, so far as appears. Hence the inference that in his letter he really did not refer to them and therefore did not thereby ratify them. He knew nothing of the transactions except what was disclosed by the papers, nor did he give any directions in advance as to what should be done. For anything that appears all his expectations would have been as well satisfied if the loan had been made in Ohio or Nebraska, or at eight per cent, to him. He merely left his money with Moody to be loaned, without any suggestion as to place, agents, form of security, or rate of interest, and the circumstances show no reason for his supposing that Moody would ask, authorize or consent to the taking of usury.

The proof is that Boberts desired the loan for the purpose of improving the premises described, and made the application for it; that Bobinson went from Peoria to Pekin to examine the property, and sent the application to Moody, who forwarded the money without further information or direction or subsequent knowledge of the terms made, beyond what the papers showed.

If Dickinson was ever informed of the detention or receipt by Eobinson from Roberts of the $140 or any other sum, the presumption would be that he supposed it was in consideration of services rendered to Roberts ; and further that all the money loaned was the money of Roberts from the time of the execution of the papers, absolutely, and not upon condition as in the case of Hewitt v. Dement, 57 Ill. 500, and that if the $2,360 or any part of it wras not delivered until afterward and as the improvements were made, it was kept by Robinson with the consent and for the convenience of Roberts. There is no evidence or presumption it was done by any arrangement with Dickinson or with his sanction or knowledge, or for his benefit, directly or indirectly.

Thus the case is clearly different from that of Payne v. Newcomb, 100 Ill. 611. Brokers negotiating loans of other people’s money may charge the borrower commissions without thereby making the loan at the full rate of legal interest usurious, where there is no arrangement with the lender that commissions shall be charged by the agent. Hoyt v. Pawtucket Institution for Savings et al., 110 Ill. 390. And in a later case from which this can not be distinguished in principle, the facts being substantially alike, the Supreme Court held there was no usury. Cox v. Mass. L. M. C., 113 Ill. 382. (Advance sheets.)

Por these reasons we are of opinion it was error to dismiss the bill, and the decree of the circuit court is therefore reversed and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.


author: Lacey, P. J.

text:
    Mary Breher v. Thomas Reese.
    1. Lease.—The acceptance of the lease by appellant from her father, estops her from setting np the verbal agreement that the land should be hers.
    2. Lease—Verbal agreement.—A written executory lease under seal can not be changed by a subsequent verbal agreement between the parties to such lease made during the existence of the lease.
    Appeal from the Circuit Court of Will county; the Hon. C. P. G-aknsey, Judge, presiding.
    Opinion filed December 4, 1885.
    This was a suit commenced by appellee against appellant, before a justice of the peace, on March 25, 1884, in an action of forcible detainer, to recover the possession of a cert tin farm described in the complaint. The trial before the justice resulted in favor of the appellant, and the cause was by appellee appealed to the county court, where the cause was again tried by the court and a jury, and resulted in a verdict of guilty against the appellant. After motion for new trial by appellant was overruled, judgment for possession of the premises was entered and costs of suit, from which judgment appellant has appealed to this court.
    The appellee, to prove the issues on his part, offered in evidence, lease signed by one George Vogel, to the appellee, for the premises in question, which was procured on demand from the possession of the attorney for appellant, dated March 1, 1883, running from the first day of March, 1883, to the first day of March, 1884.
    The party of the second part, appellant, was to pay us and for the rent, all taxes that might lawfully be assessed against the premises and to keep them in good repair. The condition of the lease was declared to be “the same as for the previous’ terms of leasing to my daughter, the said Mary Brelier, since 1875,” and that “ the written lease is for the sole use and benefit of my said daughter, and the proceeds thereof to belong to her sole and separate estate.” Appellant’s name was not signed to the lease, but she had possession of it, and evidence of her admission that she was holding under the lease was introduced.
    Appellee then offered in evidence record of a warranty deed from George Vogel and wife, to him, for the same premises, dated November 15, 1883, consideration §4,750, after proving the loss of the original deed. The appellee then introduced a written demand for possession after the time for the continuance of the lease had expired and before the suit was commenced.
    The appellant then offered to introduce evidence by way of defense, to show under what conditions she was holding the property from her father, George Vogel; to which appellee objected by his counsel, and appellant’s counsel offered in connection with the question to prove that appellant went into possession of the premises in question eight years ago, under a verbal agreement with her father, the then owner thereof, that if she would reside thereon and work the land and pay the taxes thereon during his life, the said premises should, at his death, be her own; that she did so occupy, live upon and take care of said premises and pay the taxes, in pursuance of said agreement, and made lasting and valuable improvements thereon; which evidence was ruled out by the court, to which appellant at the time excepted.

      Appellant further testified that she put in the wheat crop last fall and did the fall plowing for the present standing crop and put in the crop last fall. That the lease in evidence she never signed or saw signed. “ It has always been in the possession of Mr. Merrill, I suppose.” Mr. Merrill was her attorney.
    The counsel for the appellant then asked her this question : After the making of the alleged lease, March 1,1883, and before the plaintiff pm-chased the said premises, was there any arrangement between your father and yourself as to the ownership of the crops planted or to be planted by you in the fall of 1883? Which was ruled out by the court and exception taken.
    The defendant then offered to prove that in the fall of 1883, and before the alleged sale of the said premises to plaintiff, the defendant did the plowing for and put in the fall crops now on said premises, with the knowledge and acquiescence of her father, George Vogel, then the owner of the said premises, and with the assurance from him that she would have the right to remain and harvest said crops. Which offer upon objection the court refused, and appellant’s counsel excepted.
    Messrs. Olin & Phelps, for appellant.
    Messrs. Haley & O’Donnell and Mr. J. M. Johnson, for appellee.
   Lacey, P. J.

The only question in the case is, did the court err in rejecting the evidence offered.

As to the first evidence offered, that the appellant went into possession under a verbal contract for purchase or gift of the land, we think that it was properly rejected; for without stopping to inquire whether such a verbal agreement could be set up, in an action of law, to defeat recovery as against our statute of frauds and perjuries, we are clearly of the opinion that the acceptance of the lease by the appellant from her father would estop her from afterward setting up the original agreement, and the acceptance of this lease she scarcely denies, but simply says she never saw and never signed it; but this in face of her admission on the trial before the justice of the peace that she held the land under the lease, which admission she did not deny, is sufficient when not contradicted or offered to be contradicted to establish the fact that she did so hold. But this objection ■ does not seem to be very much relied upon to reverse the judgment. But the main cause for error, the refusal of the .court to allow appellant to prove a verbal agreement made in the fall of 1883, between Vogel, the then owner of the land, and appellant, to extend and change the terms of the lease as ' regards the ownership of the crops to be planted in the fall of 1883, and the assurance by Mm that she might remain and harvest them, is mainly relied on to reverse the judgment of the court below.

We have examined the question with the care its importance seems to demand, and have come to the conclusion that the court below committed no error in its exclusion.

If the evidence would have been proper in case Vogel had remained the owner of the land and had been the plaintiff in the forcible detainer suit, it would have been proper in the case as it stood with appellee as plaintiff and assignee of the term ; otherwise not. This brings up the question whether a written executory lease, under seal, can be changed by a subsequent verbal contract between the parties to such lease, made during the existence of the lease, and whether this agreement amounts to a change of the terms of the lease.

However oppressive the rule may sometimes work, and however much there may be a want of soxxnd reason for the .continuance of the rule, we are compelled to recognize the law as it is, and to hold that such is the law in this State, and that no such change of a wi'itten lease, under seal, while executory, can be legally made.

The question has been abundantly settled by the Supreme Court, in this State, and will be seen by reference to Loach v. Farnum et al., 90 Ill. 398; Baker v. Whiteside, Breese, 174; Chapman v. McGrew, 20 Ill. 101; Barnett v. Barnes, 73 Ill. 217. In this case the lease was for the term of one year, running from 1st March, ’83, to 1st March ’84. The effect of the agreement made while the lease was executory was to change it from a lease for one year to one for a longer time, or to abrogate it entirely and create a new lease commencing in the fall of 1883, running till some time in the summer after harvest of 1884, or extending the time of the old lease with an agreement to sow fall crops, in fall 1883, either of which was a change of 'the original lease, which was still in force at the time the new agreement was made. By the old lease no fall crop was to be planted, by the new one there was to be wheat sown. By the lease the term expired the first of March, 1884, by the new parol agreement not till after harvest. Therefore the new agreement, if one could have been shown, was void under the rule of law that an existing executory agreement, under seal, can not be changed by an agreement not under seal.

Appellant’s counsel seeks to maintain his position by claiming that appellants had license to plant the fall crops and should not be turned out after they were planted till harvested, but the answer to this is that the license granted by the agreement to extend tlie lease was as void as a license as an agreement. The original lease must govern, and by that the tenancy expired on the 1st day of March, A. D. 1884.

We perceive no error in the record and therefore affirm the judgment of the court below.

Judgment affirmed.


author: Lacey, J.

text:
    I. Lauferty v. Roan Johnson.
    Promissory note—Condition to pay attorney's ree.—“Sixty day® after date, I promise to pay E. C. Webster, or order, two hundred and fifty-seven dollars and seventy-five cents, payable Second National Bank, Free-port, 111., with-and attorney’s fees.” Held, that the condition to pay attorney’s fee (amount not fixed), to become due after the maturity of the note, does not destroy its negotiability.

      Eeeoe to the County Court of Stephenson county; the Hon. H. 0. Hyde, Judge, presiding.
    Opinion filed December 4, 1885.
    The suit was commenced in assumpsit in the county court. The declaration consists of two special counts upon an indorsed promissory note and the consolidated common counts. The two counts of the declaration declaring the promissory note not demurred to by appellee, who craved oyer of the note which was shown to him in words as follows: “ Rock Run Tp., Stephenson Co., Ill., May 19, 1884. Sixty days after date 1 promise to pay E. G. Webster, or order, two hundred and fifty-seven dollars and seventy-five cents, payable Second National Bank, Freeport, Ill., with — and attorney’s fees, value received, without any relief from valuation or appraisement laws. The drawers and indorsers severally wai ve presentment for payment, protest and non-payment of this note, and all defenses on the ground of any extension of the time of its payment that may be given by holders to them, or either of them. Against this note I have no offset or defense whatever.
    “Roan Johnson.”
    The note was indorsed “ E. G. Webster.”
    The demurrer, was sustained as to the two counts, and the appellant excepting, elected to stand by his two counts, when judgment was rendered against the appellant for costs. The j>Iea of the general issue was filed as to the common counts, and the cause was submitted to the court for trial Avithout a jury, and appellants offered in evidence the said note of Avhich the above is a copy, which was objected to by appellee’s counsel and excluded by the court, and the court thereon found the issues in favor of the defendant, and after overruling a motion for a new trial, rendered judgment against appellant for costs, and from this court this ivrit of error is sued out. This AATas all the evidence.
    Mr. James I. Reef and Mr. J. H. Steaens, for plaintiff in error ;
    cited Nickerson v. Babcock, 33 Ill. 373; 1 Daniel on Negotiable Instruments, § 62; 14 Central Law Journal, 86.

      Mr. John Coates and Mr. E. P. Barton, for defendant in error];
    cited 1 Parsons on Bills and Notes, 37; Lowe v. Bliss, 24 Ill. 168; Morgan v. Edwards, 53 Wis. 599; Cayuga County National Bank of Auburn v. Purdy, Michigan Supreme Court (unreported).
   Lacey, J.

The only question we need consider in this case is as to whether the words inserted in the note after the amount of the note itself is mentioned, “ and attorney’s fees,” renders the note non-negotiable. We think it does not. These words and attorney’s fees,” must mean, if they mean anything, the attorney’s fees accruing and becoming due for the services of attorney performed in and about the collection of the note. It certainly can not have reference to attorney’s fees due or rendered for any other purpose. If this be so, such attorney’s fees can not become due until the note is collected. Then the attorney’s fees are not a part of the note. It is a separate and independent agreement to pay attorney’s fees after the note is due. Evidently no attorney’s fees could be rendered in and about the collection of the note until it became due, and until then, nothing whatever is due or owing on the note, except the amount mentioned therein.

Were the note paid at maturity, or within the days of grace, ■no amount except that specifically mentioned in the note would ever be due. Therefore, there is no uncertainty about the amount of the debt mentioned in the note at the time it becomes due.

It is true that in the case of Morgan v. Edwards, 53 Wis. 599, it is said -that a large number of eases have been cited which hold, that if the amount payable at maturity of the paper is fixed and certain, the instrument containing the essentials of a note, is still a note, although it contains a further ju'Oinise to pay an uncertain sum for expenses or costs of collection, if not paid at maturity, or if suit be brought upon it.

• We have examined many of these cases, and in all thus examined we find express stipulations that such expenses or costs are only payable, provided default be made in the payment of the note at maturity, or unless suit be brought upon it, which implies a default.

It is true that the court holds that the note, which in its terms is like the one in this case, binds the maker to pay any attorney’s fees accruing in securing and collecting the note, whether incurred before or after the maturity of the note, and, therefore, holds the negotiability of the note to be destroyed by the insertion of such clause. But in the case of Proctor v. Baldwin, 82 Ind. 370, the court, in considering the same question arising on a note similar in all its points to the one under consideration in this case, holds a different doctrine and disapproves the holding in the case of ¡Morgan v. Edwards, which it had under review, and holds that by the condition that the attorney’s fees shall be paid if the note is not paid at maturity, “is implied that only such services as may be rendered after maturity, shall be charged in the case before us; that the clear intention and understanding of the parties to the note were, that the maker would pay such attorney’s fees as might be incurred by the holder of the note in its collection after it matured; that any attorney’s fees that might be contracted by the holder of the note in securing it before due, were not within the contemplation of the parties at the time the note was executed, and, therefore, not within the promise. Smock v. Ripley, 62 Ind. 81; Tuley v. McClurg, 67 Ind. 10.” The views held by the Indiana, court meet with our entire approval. ¡Nothing, as we have already said, could be in the contemplation of the parties in the use of the words, “ and attorney’s fees,” other than attorney’s fees rendered after the maturity of the note in its collection. The Supreme Court of Indiana, the same as the Supreme Court in this State, have held that a note with condition to pay attorney’s fee, to become due after the maturity of the note, does not destroy its negotiability, though possibly the courts of this State have not passed upon the precise question presented here where the amount of the attorney’s fee is not fixed, but we think that the principle is the same. Stoneman v. Pyle, 35 Ind. 103; Hubbard v. Harrison, 38 Ind. 323; Smock v. Ripley, 62 Ind. 81; Tuley v. McClurg, 67 Ind. 10 above.

As illustrating the tendency of the holding of the Supreme Court in this State, we cite Hill v. Todd, 29 Ill. 101; Nickerson v. Babcock, 33 Ill. 373; Clauser v. Stone, 29 Ill. 114; Houghton v. Francis, 29 Ill. 244; Childs v. Davidson, 38 Ill. 437. In opposition to the opinion here expressed, we find the Wisconsin case above cited, and Bullock v. Taylor, 39 Mich. 139, cited by appellee’s counsel, and others, no doubt, may he found. But we think that the rule we have announced is the more reasonable and more in accordance with the decisions of the Supreme Court of our own State. Holding that the note was negotiable, we think the court erred in excluding it as evidence under the common counts, and in sustaining the demurrer to the first and second counts of tli« declaration.

Judgment is therefore reversed and the cause remanded.

Reversed and remanded.


author: Welch, J.

text:
    William O’Leary et al. v. Rachel Frisbey.
    1. Statute of Limitations.—The two years Statute of Limitations does not apply to an action brought under Section 9, Chapter 48, of the Dram Shop Act.
    2. Dram Shop Act—Joint liability.—Intoxication caused, in whole or in part, by several sales and by several persons, creates a joint liability, and each person who, by sale or gift, contributes to such intoxication, may be. sued jointly. The court is of opinion that there was no error in admitting proof of separate sales under the declaration in this case.
    Appeal from the Circuit Court of Marshall county; the Eon. John Burns, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Shaw & Edwards, for appellants.
    Messrs. Barnes & Barnes, for appellee.
   Welch, J.

This was an action brought by the appellee against the appellant, under the 9th section, chapter 43, entitled “Dram Shops,” for injury to her person and means of support by reason of the intoxication of her husband, caused, as alleged, by liquors sold and given to him by the appellants. Appellants filed separate pleas: 1st, not guilty, 2d, two years Statute of Limitations; 3d, five years Statute oE Limitations. Issue joined on each of the first and third pleas, and demurrer to the second plea. Demurrer sustained. Trial by jury and verdict for appellee for the sum of $650. Motion for new trial. Motion overruled and judgment entered on the verdict, from which this appeal is taken. Various errors are assigned-

Tlie first error assigned is the action oE the court in sustaining the demurrer to the second plea. The two years Statute of Limitation does not apply to the action brought by appellee, and there was no error in sustaining the demurrer. The learned counsel for appellants, although assigning this error, make no reference to it in their brief.

The second error assigned, the admission of improper evidence on the part of the appellee, is insisted upon with great earnestness. The declaration alleges that the appellants sold and gave intoxicating liquors to appellee’s husband in large quantities, and at many different times, before November 1, 1882, and since, and thereby caused him to become and be, during that time, and he yet continues to be, habitually intoxicated, and being so habitually intoxicated he in consequence thereof has wasted and squandered his money and property, which would otherwise have come to her for her support, and that he became greatly impoverished, reduced, degraded and wholly ruined, as well in his mind and body as in his estate, and neglected and ceased to exercise his business of digging and haul mg coal, etc., and abandoned all work and labor of every kind, and wholly ceased in any manner to labor or provide for himself or appellee, and spent the greater part of his time and of his earnings in the saloons of appellants.

Similar allegations aremadeas to liquors sold and given by the appellants to appellee's husband, causing him to be violent and abusive to the appellee, and alleges particular acts of violence in consequence of liquors so sold and given to him by appellants.

The first witness for appellee testified, that he had seen Frisbey at O’Leary’s saloon and Martin’s saloon. He was asked, Have you seen him drink at either of these places within four years? Appellants objected to this question, on the ground of variance; that the declaration counted only on joint sales by the appellants to Frisbey, and the question called for evidence of separate sales by them to him. The objection was overruled and exception taken.

Similar questions were asked of the other witnesses and like objections made, which were overruled and exception taken.

We have carefully examined the authorities referred to in the briefs of appellants and appellee bearing on this question of variance. In the case of Hackett et al. v Smelsley, 77 Ill. 109, the declaration averred a partnership between two of the defendants, and that the said two as partners and the other defendants doing business, severally and respectively sell and give intoxicating liquors, etc. In Barks et al. v Woodruff, 12 Bradwell, 96, the averment was that the defendants severally and respectively sold and gave intoxicating liquors. Both of these suits were brought under this statute, and it is insisted that although the statute under which this action is brought gives the right of action to any person injured, severally or jointly against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part of such person or persons; that if several persons, by making separate sales,-cause a single intoxication, or several particular intoxications, from which injury resulted, they could be sued severally or jointly, but if sued jointly the declaration must allege as in the cases cited supra that they severally and respectively sold or gave away the liquor, and not that the defendants did it.

In the view we take of this question, they are liable only by virtue of the statute; without it they are not liable at all either jointly or severally. By the statute they are liable iointly or severally. Upon an examination of the case ot Tetzner et al. v. Naughton, 12 Bradwell, 150, the aBegation in the declaration was as in this case: The defendants sold and gave intoxicating liquors, etc.” And in the case of O’Halloran et al. v. Kingston, 16th Bradwell, 660, we have examined the declaration and find that the averment was, the defendants sold and gave intoxicating liquors, etc.” Both these cases were Brought under this statute, and proof under each of these declarations of separate sales, by persons carrying on separate saloons, -was'admitted. In the case of Brannon et al. v. Silvernail, 81 Ill. 485, and in King v. Haley et al., 86 Ill. 106, the averment in both declarations. was, the defendants sold and gave intoxicating liquors, etc.” Under the view we take of the statute under which this suit is brought, and of the authorities above referred to, we hold that there was no variance between the proof and the declaration, and that there was no error in admitting proof of separate sales under this declaration. Intoxication caused in whole or in part by several sales and by several persons creates a joint liability, and each person who by sale or gift contributes to such intoxication may be sued jointly. Their joint liability under the statute arises from the act of each person contributing to the intoxication. And as held by Justice Wall, in O’Halloran v. Kingston, 16th Bradwell, 662:

“ Those who contribute in a small degree may he thus made to suffer as those who are more culpable, yet it is a condition which is apq>lied to the traffic in liquors, which the legislature had the power to impose, and which the courts can not ignore. It must be remembered, also, that the risk thus involved was known to and therefore voluntarily assumed by appellants when they engaged in the business, so that in a legal sense it can not be said that they are surprised by the enforcement of the law. The objection to the evidence of notice to one of the appellants not to sell to her husband is not well taken. The rights of each of the appellants from evidence adduced as to the other, was guarded on the trial by the instructions of the court. Appellants’ instructions 9th, 10th, 11th and 12th informed the jury that they could not give damages in the case for more than what should be found proper against the appellant least liable.”

It is claimed by the counsel for appellants that under the first, seventh, eighth, ninth and tenth of appellee’s instructions the jury had only to find from the evidence that the appellants had aided in causing an intoxication of Frisbey at any time within five years, and that he was in the habit of getting intoxicated, and that appellee was injured in her means of support thereby, to find against them. All of these instructions inform the jury, that if they find from the evidence that within five years before the commencement of this suit Edwin Frisbey was habitually intoxicated, and that defendants caused such intoxication, in whole or in part, by liquors sold by them to him, and by means of such intoxication the plaintiff was injured in her means of support, and that such means of support were diminished in consequence of such intoxication, caused in whole or in part by the defendants, then they should find for the plaintiff and assess the damages up to their separation. These instructions are drawn within the spirit and letter of the statute: “ Every * * "* wife * * * who shall be injured in person or property, or means of support, by any intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in her owm name severally or jointly, against any person who shall, by selling or giving intoxicating liquors, have caused the intoxication in whole or in part of her husband. These instructions required the jury, before they could find for appellee, to believe from the evidence that her husband was habitually intoxicated, and that the appellant caused such intoxication in whole or in part by liquors sold or given to her husband, and that by means of such intoxication she was injured in her means of support.. How much he obtained from each and to what extent the act of each appellant contributed to the habitual intoxication it is impossible to state with certainty, but under these instructions they were required to find that the liquors furnished by each of them was the efficient and approximate cause, either in whole or in part, of the intoxication complained of.

It is further insisted by counsel for appellants that the 4th, 5tli and 16th instructions of appellee are erroneous and should not have been given. These instructions inform the jury that if they believe from.the evidence that for five years, or any part thereof, before this suit was brought, plaintiff was injured in her person or means of support, in consequence of the intoxication of her husband, that such intoxication was caused in whole or in part by liquors sold by the appellants, then she is entitled to your verdict. This instruction required the jury, before they could find for the pffaintiff, to believe from the evidence that she wasvjured in her person or means of support by her husband’s intoxication, caused in whole or in part by liquors sold by the appellants, and that the liquors furnished by them were the efficient- and proximate cause, either in whole or in part, of the intoxication complained of.

The objection to the 15th" instruction is not well taken; it is qualified and limited by the other instructions. The 20tli and 25th instructions, as to the measure of damages, could not have injur'ous’y affected the appellants, for the verdict is not based on them.

In the case of Flynn et al. v. Fogarty, 106 Ill. 267, similar instructions were held good.

There was no error in refusing to give the 16th instruction asked for by appellants. It was based on the claim of a variance between the proof and the declaration, the claim being that proof of separate sales could not be made under the averments in this declaration. We disposed of this question in passing upon the objection to the admission of the evidence.

The qualification of the 11th instruction was proper.

Upon a careful examination of this record we find no substantial error in the admission of testimony or in the law, as announced in the instructions given to the jury. As to the question of damages, the proof abundantly supports the verdict.

The judgment is affirmed.

Judgment affirmed.


author: Baker, J.

text:
    Clarissa M. Spire v. Edward C. Lovell et al., Ex'rs, etc.
    1. Administration—Monument.—The erection of a suitable headstone at the grave of a deceased person may properly be considered as a part of his personal expenses. Where the rights of creditors are not defeated or jeopardized, and the sum expended for that purpose by the administrator or executor is not extravagant but reasonable, in view of the station in life of the deceased and the value of the estate left by him, such amount should be allowed as a credit on settlement of the administration.
    2. Accord.—Where an accord is relied on it must be executed.
    Error to the Circuit Court of Kane county; the Hon. Charles Kellum, Judge, presiding.
    Opinion filed December 4, 1885.
    Hr. It. H. Botsford, for plaintiff in error;
    that the expenditure for the monument should not have been allowed the executors, cited Little v. Williams, 7 Bradwell, 67; Morgan v. Morgan, 83 Ill. 196; Foley v. Bushway, 71 Ill. 386.
    Hr. Frank Crosby and Hr. E. 0. Lovell, for defendants in error;
    that the expenditure for the monument should be allowed the executors, cited Ferrin v. Myrick, 53 Barb. (N. Y.) 76; Crapo v. Armstrong, Chicago Legal News, November 10, 1883; Hapgood v. Houghton, 10 Pick. 154; Wood v. Vanderburg, 6 Paige, 277; McGlinsey’s Appeal, 14 Serg. and Rawle, 64.
   Baker, J.

Clarissa H. Spire, plaintiff in error, filed in the County Court of Kane county exceptions to two of the items contained in the report of the executors of her deceased husband, and those exceptions were there sustained; but upon the appeal to the circuit court the judgment was otherwise as to both of said items, and the report was approved.

The action of the circuit court in allowing the charge of §210, for money expended by the executors in the erection of a tombstone at the grave of the deceased, was right. The tombstone was reasonably worth the price paid therefor, and the estate of the deceased was perfectly solvent and of the value of some $10,000, or more, over and above the few small claims there were against it. The erection of a suitable headstone at the grave of a deceased person may properly be considered as a part of his personal expenses. "Where the rights of creditors are not defeated or jeopardized, and the sum expended for that purpose by the administrator or executor is not extravagant, but reasonable, in view of the station in life of the deceased and the value of the estate left by him, then such amount should be allowed as a credit on settlement of the administration. Wood v. Vanderburg, 6 Paige, 277; McGlinsey’s Appeal, 14 Serg. & Rawle, 64; Porter’s Estate, 77 Penn. St. 43; Fairwan’s Appeal, 30 Conn. 205. In cases of such expenditures, it is advisable the administrator * _ * * or executor should first consult the court having probate jurisdiction, or the distributees of the estate, or both, as to the amount, if any, to be thus spent; but even where tins precaution is not observed, if the sum disbursed is reasonable and appropriate under all the circumstances, and there is no danger of detriment to creditors, it is properly chargeable to the estate.

We do not regard the cases cited by plaintiff in error, as in point. In Foley, Adm’r, v. Bushway, 71 Ill. 386, the monument was furnished under a special contract made by the widow, and to which the administrator of the estate was nota party. In Morgan, Adm’r, v. Morgan, 83 Ill. 196, the monument was contracted for by the administrator and his brother, both of them sons of the deceased, in their individual capacities ; and, moreover, it was a family monument and not a monument to the memory of the deceased. In Little v. Williams, 7 Bradwell, 67, the estate was wholly insolvent, and unable to pay even preferred claims.

The other controverted item of the report, approved by the circuit court, was a charge of $595.08, made against plaintiff in error, on her distributive share of the estate of her husband.

That sum was the amount of the principal and interest of four notes belonging to the estate, and executed by one E. E. Watkins.

It was error to charge the widow with the amount of these notes.

There is no doubt she was persuaded into an agreement to take the notes as a part of her share ; but the contract was not executed—was merely executory ; the notes were never delivered to her but retained by one of the defendants in error for the purpose of procuring the indorsement of his co-executor. Afterward, and before delivery or offer of delivery, plaintiff in error notified the executors she declined to take them. The case stands, upon the exceptions to the report, as though plaintiff in error, widow of the deceased, was demand-" ing by suit her distributive share of the estate. The facts in evidence would not make out a good plea of accord and satisfaction. Where an accord is relied on, it must be executed. Russell v. Lytle, 6 Wend. 390, and authorities there cited. In Allen v. Harris, 1 Lord Raym. 122, it was said, “the books are so numerous that an accord ought to be executed, that it is now impossible to overthrow all the books.” In Hawley v. Foote, 19 Wend. 516, it was held that a plea that the plaintiff agreed to accept the note of a third person, w’hich on being tendered to him he refused to accept, is not a good plea of accord and satisfaction.

The judgment is reversed and the cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded.


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    Robert Scott v. Sylvester Fleming.
    Slander.—An instruction in a case of slander that before the appellant can make out his pleas of justification lie must prove them beyond a reasonable doubt, is erroneous, being in opposition to Section 3, of Chapter 126, of the Revised Statutes.

      Appeal from the Circuit Court of Mercer county ; the Hon. A. A. Smith, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. B. C. Taliaferro, for appellant.
    Mr. John C. Pepper, for appellee.
   Lacey, P. J.

This was an action in case by the appellee against the appellant, charging the appellant with slander.

The declaration contained two counts. In the first the actionable words were, He, appellee, took the stand and swore to a d—d lie, before Esquire Austin. That he took the stand and swore to G—d d—d lies, and would take the stand and swear to G-d d—d lies.”

The second count charges that appellant said and concerning appellee, that “ You swore a d—d lie on me in Chicago in the whisky matter. You swore to a d—d lie, etc.” To this declaration, and each count thereof, appellant interposed the plea of the general issue, and two pleas of justification to the second count of the declaration, setting up and charging that appellee did commit perjury in his testimony in the whisky case before the United States Commissioner in Chicago. That he swore that he purchased the whisky from appellant, when in fact, appellant purchased the whisky for him as his agent. Issue was joined on all the pleas.

The record shows that there ivas evidence introduced before the jury, tending to sustain the pleas of justification to the second count, and that the case was fairly submitted to the jury on the proof adduced on these issues as well as the other, and was of such a character that the appellant was entitled to have the law laid down correctly as to the degree of proof required to sustain it.

But the court in its fifth and other instructions, told the jury in very positive and clear language, reciting all the particulars, that before appellant could make out his pleas of justification, he must prove them beyond a reasonable doubt, and this is the main cause assigned for error. This was, as is admitted by appellee’s counsel, erroneous and in entire opposition to the statute, section 3, chapter 126, of which provides that, “ In actions for slander or libel, an unproved allegation of truth of the matter charged, shall not be deemed proof of malice, unless the jury on the whole case find that such defense was made with malicious intent, and it shall be competent for the defendant to establish the truth of the matter charged hy a preponderance of the testimony.”

Appellee’s counsel claims that neither counsel nor court remembered the statute at the time the instructions were given.

The instruction, however, was erroneous and in contravention of the statute, and for that reason the judgment must be reversed, unless we can see that the judgment ought to stand, notwithstanding the instruction, and this must be clear.

Appellee claims that there was no proof to sustain the pleas of justification, but we think in this he is mistaken. If what the appellant testified to was true, and of this the jury had a right to judge, he only acted as the agent of appellee in buying the whisky, whereas, the latter testified he purchased the whisky of the appellant. It is insisted that even if this were so it did not prove the intent on the part of the appellee to commit perjury, but the question of intent is one for the jury, and the question of degree of proof was very material.

It is claimed that there was one good count in the declaration to which there was no plea .of justification, to wit, the first count; and even if there had been made out a justification to the charge in the second count, there must be a recovery, and hence the verdict should be sustained. A complete answer to this position is, that the jury might not have deemed the charge proven under the first count, and second, even if proven, it can not be known how much damage it would have awarded in case they had found the issues on the pleas of justification for appellant, and the issues on the first count in the declaration in favor of appellee.

We might with great reason suppose in such case, the damages would have been only nominal.

For these reasons the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


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    George B. Jones v. A. E. Hubbard.
    Promissory note.—Anote dated April 18, 1882, and reading “one day after date I promise to pay to the order of, etc., $228.89, for value received, with interest at eight percent, per annum; in case default is made in payment of this note, or the interest thereon, according to the tenor and effect thereof, the whole amount shall immediately become due, and a sum equal to ten per cent, of the whole amount shall be added thereto, for attorneys’ fees, and taxed as a part of the costs, in the court where-suit may be brought. I hare sold to T. M. Hubbard about 600 bushels number two corn, at sixty-five cents, to be delivered between date and September 1st; when such delivery is made, this note to be due and payable.” Held, that the clause as to attorneys’ fees and as to delivery of corn does not affect the negotiability of the note.
    Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. George B. Joiner, for appellant;
    that the instrument was n on-negotiable, cited Beezley v. Jones, 1 Scam. 34; Canadian Bank v. McCrea, 106 Ill. 281; Turner v. P. & S. R. R. Co., 95 Ill. 134; Husband v. Epling, 81 Ill. 172; Wood v. North, 84 Penn. 407; Mahoney v. Fitzpatrick, 43 Am. Reports, 502; Maryland Fertilizer Co. v. Newman, 45 Am. Reports, 750; Woodbury v. Roberts, 44 Am. Reports, 685.
    Messrs. Doyle, Morris & Pierson, for appellee;
    cited Stevens v. Blunt, 7 Mass. 240; Ernest v. Stockman, 74 Pa. St. 13; Harlow v. Boswell, 15 Ill. 56; McCarty v. Howell, 24 Ill. 343; Cisne v. Chidester, 85 Ill. 525.
   Lacey, P. J.

This was an action of assumpsit with one count in the declaration, based on the following instrument, viz.:

“ Gilman, Ill., April 18,1882.

“ One day after date I promise to pay to the order of T. M. Hubbard $228.39, for value received, with interest at 8 per cent, per annum. In case default is made in payment of this note, or the interest thereon, according to the tenor and effeci thereof, the whole amount shall immediately become due, and a sum equal to ten per cent, oí the whole amount shall be added thereto for attorney’s fees, and taxed as a part of the costs in the court where Suit may be brought. I have sold to T. M. Hubbard about 600 bushels No. 2 corn, at sixty-five cents, to be delivered between date and September 1st; when such delivery is made this note is to be due and payable.”

“ Geo. B. Joiner,”

The instrument was duly indorsed by the payee to the appellee. A general demurrer was interposed to the declaration and overruled by the court, and appellant abiding his demurrer, judgment was rendered against him on the note, and this appeal is taken to test the correctness of the decision of the court below in overruling the demurrer and rendering judgment. The question raised is as to the negotiability of the instrument. That is, whether it is a promissory note under our statute. It is claimed by appellant that the clause in reference to the delivery of the corn, and the clause in regard to the payment of the attorney’s fees, each renders the instrument non-negotiable, and destroys its character as a promissory note, and renders it a simple contract without negotiability.

In regard to the question as to whether the provision in the note for the payment of ten per cent, attorney’s fees, renders the note or instrument non-negotiable, we think the Supreme Court has settled the question against the claim of the appellant in a number of cases, all more or less bearing on the case as will be seen by reference to them. We refer to Nickerson v. Babcock, 33 Ill. 373; Hill v. Todd, 29 Ill. 101; Clauser v. Stone, 29 Ill. 114; Houghton v. Francis, 29 Ill. 244; Harlow v. Boswell, 15 Ill. 56; McCarty v. Howell, 24 Ill. 343: Nickerson v. Babcock, 29 Ill. 525; and Cisne v. Chedister, 85 Ill. 521; and in other States we find the cases of Stevens v. Blunt, 7 Mass. 240; Proctor v. Baldwin, 82 Ind. 370; and Earnest v. Stockton, 79 Pa. St. 13. In regard to the attorney’s fee, the amount was fixed and determinate, as much so as the amount of the note. It was to he ten per cent, of the whole amount due, and it was to be due and payable as soon as default was made in the payment of the note. It was simply a penalty mentioned as being for attorney’s fees, but like any other penalty.payable in default of payment of the note at maturity.

It was not like the note in the case of Nickerson v. Babcock, 33 Ill. 370, and 29 Ill. 429, payable in case suit had to be brought, and the mention of the attorney’s fee in the note neither added to nor took away anything from its character as a negotiable instrument. It was a mere penalty for non-payment; nor was it necessary to show that attorney’s services had been performed in order to show a right of recovery, nor would it have been any defense to the penalty to show that the attorney’s fees had not been rendered. It is no objection to it that the penalty was to be taxed as costs. It could as well be recovered in that form of judgment as any other. Clearly, this penalty could not have the effect to take away the negotiability of the note. But the other question is most confidently relied on as having the effect to render the note invalid as a negotiable instrument.

The provisions of our statute on the subject of promissory notes are as follows: “ Promissory notes, bonds, due bills and other instruments in writing made or to be made by any person, body politic or corporate, whereby such person promises or agrees to pay any sum of money, article of personal property, or any sum of money in personal property, or acknowledges any sum of money or personal property to be due to any other person.”

In the case in hand the note starts out with a promise to pay the sum mentioned in it one day after date, but by a subsequent clause it states a contract to deliver corn at a certain price on or before the first day of September next following, and that when the delivery was made the sum mentioned was to be due.

This question of the delivery of the corn seems to have been an after thought, after the first part of the note was written, and it was no doubt thought that as the corn was to be delivered so shortly and at most could not be delayed beyond the first of September, that it would be proper to allow the note to be paid in the corn; therefore, the time was extended till the corn could be delivered, and when delivered the note was due and paid by the delivery of the corn. But if the corn was not delivered within the time, the note became due absolutely on the first day of September, for except for the privilege of paying it in corn it was due one day after date, and this privilege was only extended to a limited time in which the delivery was to have been made.

It could not have been intended by the parties as contended for by appellant’s counsel, that in case the corn was never delivered the note never became due, but the appellee wou’d simply have a contract with easements broken for the delivery of the corn, and would have to be remitted to his suit on such easements.

We look upon the instrument in a far different light. We think the instrument, all its provisions being construed together, as being one absolutely payable on the first day of September, after its date, with the privilege to the payor of paying it in corn at sixty-five cents per hushel within any time between its date and the first September next following.

After that it was payable in money without reference to the corn. In its character it is somewhat like the note described in the case of Cisne v. Chidester, 85 Ill. 521, which is as follows : “ On the first day of September, 1871 (dr before if made out of the sale of J. B. Drake’s horse, hay fork and hay carrier), I promise to pay. James B. Drake, or order, one hundred and twenty-five dollars, etc., with use,” signed. The re. cital in the note of the- contract that had already been made in reference to the corn could not have the effect to render the note non-negotiable. The entire object of this recital was to extend the time of payment and to allow the payment in corn, within the time fixed, but not afterward.

We find that the court below committed no error in overruling the demurrer and rendering judgment, and therefore the judgment is affirmed.

' Affirmed.


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    John McAllister v. Gilman W. Avery.
    Interlineations—Burden of proof.—Interlineations must be explained by the party claiming the benefit of the paper, the presumption of law being that the interlineations were made after the execution by the maker.
    Error to the Circuit Court of Peoria county; the Hon. D. McCulloch, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Puterbaugh & Puterbaugh, for plaintiff in error.
    Messrs. Stevens, Lee & Horton, for defendant in error.
   Baker, J.

Plaintiff sued defendant as guarantor of a note for §500, executed by one Lenhart to Frazer, assigned, after maturity, to plaintiff. Pleas verified by affidavit were interposed and a jury trial resulted in a verdict and judgment for defendant.

We think the weight of the evidence fully sustains the verdict. The point of contention is, whether the erasure of the words “ First National Bank of Peoria,” in the printed blank used, and the interlineation of the name of Perry Frazer, as payee, were made before or after the indorsement of the note by the defendant. It does not appear that any person other than defendant and Lenhart was present at the time of such •indorsement; defendant testified positively the hank was the payee named in the note when it was executed and indorsed; and Lenhart, who was examined as a witness, refused to testify to the contrary. The circumstances in proof tend strongly to show that intermediate the. indorsement and the "delivery of the note to Frazer, Lenhart erased the name of the bank as payee, and interlined that of Frazer.

The interlineation and the writing in the body of the note are in the same handwriting; and the same ink was used. Plaintiff, therefore, insists that when it was shown the signature of defendant on the hack of the note was genuine, and was there at the time of its delivery to the payee, the burden of proof was thrown upon the defendant to show the alteration was made subsequent to the execution of the instrument by him; and that it was error in the court to require further evidence than this before admitting the note in testimony. At the time the objection was allowed, no proof whatever had been offered to show the erasure and interlineation were upon the note at the time of its delivery to Frazer; when such proof had been made and it was again offered, the court permitted it to go to the jury. We see no error in the action of the court.

In Hodge v. Gilman, 20 Ill. 437, the Supreme Court said: “ It is the settled law of this court, that interlineations must be explained by the party claiming the benefit of the paper, the presumption of law being that the interlineations were made after the execution by the maker; and the court further said, in substance, that where the handwriting to a note is proved, the maker establishes an alteration has been made since he signed it, by showing the instrument has been interlined in a material part, and that this changes the onus and imposes the duty upon the other side to show that the alteration w-as in fact made before it was executed, or that it was done subsequently, with the authority or consent of the maker. The same rule was announced in Walters v. Short, 5 Gil. 252, in the case of a contract for the delivery of cattle; and in Montag v. Linn, 23 Ill. 551, in respect to a deed. These authorities fully answer the points made by plaintiff as to the rulings of the court upon the trial. The alteration in the note was material, and in the interest of the party producing it; and, under the law as held in this State, is presumed to have been made after execution, and the burden was upon him to explain the alteration.

The cases on this subject are not in harmony. And even in many courts -where the rule in favor of the presumption of innocence in the matter of the alteration of instruments prevails, an exception is admitted in the case of negotiable instruments, it being held that the party producing and claiming under such paper is bound to explain any apparent and material alteration, the .operation of which would he in his own favor. See authorities cited in note 1, p. 605, Vol. I, Redfield’s Edn. of Greenleaf on Evidence.

The judgment is affirmed.

Affirmed.


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    Tom Pickard et al. v. H. C. Hopkins.
    1. Vendor and vendee—Possession of property.—When there is a sale of personal property by a debtor, there must be a delivery and change of possession before the purchaser can acquire title as against creditors of the vendor, and this rule applies even where the sale is made in good faith and for an adequate consideration.
    2. Delivery.—The delivery may be actual or constructive; but it must be substantial and not a mere formal and temporary change of possession.
    Appeal from the Circuit Court of Woodford county ; the Hon. John Burns, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. W. C. Simpson, for appellant;
    cited Allen v. Carr, 85 Ill. 388; Curran v. Bernard, 6 Bradwell, 341; Lewis v. Swift, 54 Ill. 436; Thompson v. Wilhite, 81 Ill. 356.
    In all cases the change of possession must be substantial and exclusive: Thompson v. Yeck, 21 Ill. 73; Ticknor v. McClelland, 84 Ill. 471.
    Mr. C. H. Chittz, for appellee;
    that although property apparently remains with a defendant in execution, the ownership may be shown elsewhere,, if the transaction is one of good faith, and of this the jury are the judges, cited Neece v. Haley, 23 Ill. 416; Hart v. Wing, 44 Ill. 141; Means v. Williams, 37 Me. 556; Heine v. Anderson, 2 Duer (N. Y.), 318; Dayton v. People’s Savings B’k, 23 Kan. 421.
   Baker, J.

This was a trial of the right of property. One Taylor was the owner of the horse in controversy, and had him, along with other horses he owned, in the pasture of Strawhacker, an agister. Appellee bought the horse from Taylor, June 20, 1884, on an old debt, and took him by the mane to lead him to the barn, but after leading him fifty or sixty yards, the horse broke loose and ran back to the other horses. Appellee then concluded to leave the horse in the pasture until such time as he should direct Taylor to ship him to Fair bury. Ho notice of the sale was given to Strawhacker either by appellee or Taylor. On the 19th of July following, a constable levied an execution, issued on a judgment in favor of appellants and against Taylor, on the horses.

When there is a sale of personal property by a debtor, there must be a delivery and change of possession, before the purchaser can acquire title as against creditors of the vendor. This rule applies even where the sale is made in good faith, and for an adequate consideration. Thompson v. Wilhite, 81 Ill. 356; Ticknor v. McClelland, 84 Id. 471; Allen v. Carr, 85 Id. 388. The delivery may be actual or constructive ; but it must be substantial, and not a mere formal and temporary change of possession.

The character of the delivery necessary, depends much upon the nature and particular situation of the property sold.

In the case at bar, there was no sufficient transfer of possession to the vendee. The leading of the animal by the mane the distance of fifty or sixty7 yards, was merely a formal and transitory custody. The horse was then left just where, and as it had been before, in the pasture of Strawhacker, along with the other horses of the vendor. The horse still remained in the custody and actual possession of the agister, and the agister continued to be the agent of Taylor, the defendant in execution, and held possession for him. An inquiry of Strawhacker would have elicited the reply, the horse -was . Taylor’s. If the agister had been notified of the sale and purchase, and had agreed to hold the horse for appellee, the transfer would probably have been valid against appellants.

The cases of Morse v. Powers, 17 N. H. 286, and Carpenter v. Snelling, 97 Mass. 452, cited by appellee, we regard as authorities against him. In the first case the property was lumber, and of a heavy bulky nature; a part of it was at the mill of one Whitman, and another part on a public landing; the one part was left at the mill, the plaintiff agreeing to pay Whitman for the use of the mill; the other part was left on the public landing until the next morning, the plaintiff having requested one Dutton, who lived near, to take charge of the lumber for him.

In the other case, the custodian of the mortgagees was put in possession of the chattels, although the property was left on the premises of the mortgagor.

The ruling of the court upon the instructions, so far as they are inconsistent with the views herein expressed, were erroneous.

It was also error to overrule the motion for a new trial.

The judgment is reversed and the cause remanded.

Be versed and remanded.