text:
    Samuel Stein v. Judson M. W. Jones.
    1. Surety—Assignment oe lease not a release.—Where a surety signs a lease appearing on its face to be made to himself and the"-actual lessee jointly, and the lessee afterward, with the consent of the landlord, assigns the lease to other parties without the knowledge or consent of the surety, said assignment not containing any release of liability of the original lessees, the surety will not be discharged by such assignment.
    2. Evidence—Apparent principal, actual surety.—The court inclines to the opinion that one who signs a lease, bond, or other sealed instrument without anything in the writing or method of signing to indicate that he signed as surety and not as a principal, may show by parol that he did sign as surety, and to the knowledge of the other party to the instrument.
    3. Same—Parol.—A parol discharge can not be set up in an action on a specialty.
    Appeal from County Court of Cook county; the Hon. Richard Prendbrgast, Judge, presiding.
    Opinion filed April 28, 1886.
    Action of covenant was brought in the county court by appellee against appellant and one W. Bedord; appellant alone was served and pleaded non, est factum, and a special plea settingup that he signed the lease as surety for Bedord only, and that this .fact was known to plaintiff. That in the month of September, 1885, they entered into an agreement with Bedord by which he permitted said Bedord to assign the lease and premises to Rosenberg & S. and agreed to accept them as tenants and did collect rent of the premises from them, and that all this was done without the knowledge or consent of defendant Stein, whereby said Stein was discharged from all liability as such surety upon 'the lease.
    The lease is by J. M. W. Jones, party of the first part, to W. Bedord and Samuel Stein, party of the second part, and on its face appears to be a demise to the two.
    Stein was never in possession, but Bedord was. Plaintiff’s agent consented to an assignment by writing consent on the back of the lease. The consent is in terms to the assignment of the lease to Rosenberg & Schidowskv, without releasing liability of original tenants.
    Bedord was present when consent to assignment was given, but Stein was not.
    Ho written assignment of the lease appeal's; there is a blank assignment unexecuted on the lease.
    Rosenberg & Schidowsky went into possession and paid rent for some time, then left, and this suit is brought for rent accruing after theyleft. All rent was paid up to time Bedordmoved out. On the trial, which was before the court without a jury, Stein offered to prove that at the request of the plaintiff he signed the lease, not as a tenant, but as a surety only for the due performance of the lease on the part of Bedord, and that the lease was assigned without his knowledge or consent.
    The court refused to admit such evidence, and defendant excepted. Finding for plaintiff for $130 and judgment. The case comes here by appeal.
    Messrs. Kraus, Mater & Brackett, for appellant;
    that the current of authority is in favor of permitting a' party to an instrument under seal to show by parol evidence the fact of his suretyship, cited Fowler v. Alexander, 1 Heiskell (Tenn.), 425; Creigh v. Hedrick, 5 W. Va. 140; Scott v. Bailey, 23 Mo. 140; Dickerson v. Comm’rs, 6 Ind. 128; Artcher v. Douglass, 5 Denio, 509; Bk. of Steubenville v. Hoge, 6 Ham. 17.
    Messrs. Hutchinson & Partridge, for appellee;
    that what was done by the landlord would not discharge the surety, cited Taylor on Landlord and Tenant, § 384.
   Moran, J.

Whether one who signs a lease, bond, or other sealed instrument, without anything in the writing or method of signing to indicate that he signed as surety and not as a principal, may show by parol that he did sign as surety and to the knowledge of the other party to the instrument, we do not find it necessary in determining this case to decide. We may say, however, that the decided cases appear to give support to the affirmative of the proposition.

Here the evidence offered by the defendant, Stein, to discharge him from liability on the covenant of the lease to pay rent, would not avail for that purpose, had the court admitted the evidence that he was only a surety on the lease or had that fact been expressly stated on the lease itself. It is agreed in the lease, that the party of the second part, nor their heirs, executors or administrators will underlet said premises, or any part thereof, or assign the lease without the written assent of the said party of the first part had and obtained thereto.

This covenant is for the benefit of the landlord and it contemplates that he may consent to assignment of the lease. He did consent in accordance with the implication of the lease, hut-such consent in no way enlarged or affected the liability of Bedord or of Stein under the covenant to pay rent. The lessee, by assigning the lease, whether with or without the consent of the lessor, can not rid himself of his liability under the covenants. A surety is bound only by the terms of his undertaking, it is true, but he will not be discharged by that which does not affect his undertaking. If the term for any cause named in the lease is determined, the surety is discharged from further liability, because the tenant is. Wood, Landlord and Tenant, Sec. 474. A material alteration in the relation of the original parties to each other, without the consent of the surety, will, however, operate as a discharge, as if a lessor enlarges the time of performance or makes a new lease of the premises, either to the lessee or to some other person. Miller v. Steward, 9 Wheat. 680 ; White v. Walker, 31 Ill. 422.

In such case the lease on which the surety became liable is terminated by the altered or substituted contract, but where the alteration is in accordance with the contract which the surety signs, he remains liable. The terms of the lease here implies the right of the lessee to assign by the lessor’s consent.

In Decker v. Gaylor, 8 Hun, 110, the lease was for one year, and the surety signed as security, as appeared from the lease. The lease had a provision in these words: “ This contract is to be renewed for three consecutive years, if it is fulfilled to the satisfaction of both parties.” It was held, that the lease being renewed by the lessor and lessee named therein, the surety remained liable for the rent of the second and third years.

But there is a further reason why, even if what was done by the lessor would discharge the surety, it could not avail in such a case as this in an action at law.

Here the action was upon a specialty, and under the common law rule which obtains in this State a parol discharge can not be set up in an action on a specialty. In Wittner v. Ellison, 72 Ill. 301, it is said: “ The action is brought upon a specialty, and the agreement to extend the time of payment was by parol. By the rules of the common law, when the action is upon a specialty, the surety can not set up a parol agreement to enlarge time without his assent, as a defense. It is peculiarly a matter for a court of equity ; ” citing Davy v. Prendergast, 5 Barn. & Ald. 187 ; Parker v. Watson, 8 Exch. 404; Tate v. Wymand, 7 Blackf. 240; Lock v. United States 3 Mason, 446.

The point made, that judgment was entered by the court below against Bedord as well as Stein, when there was no service on Bedord, can not be urged by Stein. The obligation was several, and a judgment can be taken against one of the obligors only. The judgment against Stein is good, and that it does not bind Bedord does not concern Stein. The person who is injured by the error is the only one who can complain. Robinson v. Brown et al., 82 Ill. 280; Greenman et al. v. Harvey, 53 Ill. 386; 102 Ill. 466.

The judgment of the county court is correct and must be affirmed.

Affirmed.


source: Caselaw Access Project

author: McAllister, J.

license: Public Domain

text:
    Peter C. Sears v. John A. Nagler.
    Pleading.—Where the condition of a bond is merely to indemnify, the plea of non damnjficatus is an answer to an alleged breach; but if the condition stipulates for the performance of any particular .act, that plea is no answer; performance of that act must ho averred.
    Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Opinion filed April 28, 1886.
    Messrs. Fairchild & Blackman, for appellant,
    Mr. R. R. Landis, for appellee.
   McAllister, J.

This was debt brought by appellee, Nagler, against appellant, Sears, upon a bond given by the latter in suing out an attachment against the former in justice’s court, which suit was taken by appeal to the circuit, and there dismissed for want of prosecution. The declaration avers the making, and sets out the bond, the issuance of the writ, the taking Nagler’s goods thereunder, the proceedings, ending in the dismissal of the suit for want of prosecution, the wrongful suing out of said attachment and damages. Sears filed two pleas: (1) non est faetwn ; (2) the plea of non dainnificatus. Also gave notice of set-off upon the common counts.

Upon the respective pleas, the plaintiff took issue.

Upon the issues so framed, the parties waived a jury and went to trial before the court. Plaintiff gave the bond in evidence, the record of dismissal and proof of damages. The court found the issues for plaintiff, his debt to be §150 and damages same amount; upon which judgment passed, and defendant brings the record here by appeal.

The record presents no error of law, and the only ground for reversal is that the judgment was not supported by the evidence, and that therefore the court erred in overruling defendant’s motion for a new trial.

The bond in suit contained the condition prescribed by statute, that the obligor would prosecute his suit with effect, or if he failed that he would ¡Day and satisfy the obligee all such costs in such suit, and such damages as the obligee might sustain by reason of wrongfully suing out the attachment. When the condition of a bond is merely to indemnify, the plea of non damnifioatus is an answer to an alleged breach; hut if the condition stipulates for the performance of any particular act, that plea is no answer; performance of that act must he averred. Coombs v. Newlon, 4 Blackf. 120; Andrews v. Waring, 20 Johns. 153. The condition of the bond sued on was not one merely to indemnify and save harmless, it was for the performance of particular acts. The plea was not good in substance and admits the condition has been broken as alleged in the declaration. In McClure v. Erwin, 3 Cow. 332, this very question was involved. The court said: “ But the material inquiry is, whether the plea and rejoinder are good in substance. The plea is substantially one of non damnifioatus. This is a good plea in all cases where the condition is to indemnify and save harmless, because it answers the condition in terms. But it is good in that case only. 1 Saund. 117, n. 1; Codner v. Dalby, Cro. Jac. 363 ; Horseman v. Obbins, Id. 631; Hulland v. Malken, 2 Wils. 126; Manser’s Case, 2 Rep. 4 ; Woods v. Rowan, 5 Johns. 42; Andrews v. Waring, 20 Johns. 153. The plea should go to the right of action, not to the question of damages. The plaintiff, so far as it depends upon the pleadings, shows his right to recover by setting forth the bond with its condition, and alleging a breach of that condition either general or special, as the case may require. If the defendant by his plea admits that the condition has been broken, he concedes the plaintiff’s right to recover, and by not denying the breach assigned, but instead of doing this, interposing the general plea of non damnifioatus, he, in effect, admits the breach.”

As the pleadings in the case at bar stood, when the case was tried, the plaintiff, upon the introduction of the bond in evidence, to fulfill the requirements of the plea of non est factum^ had established his cause of action, because a breach of the bond had been admitted by the manner of pleading as above stated. The only matter, therefore, to be investigated and determined upon the trial, was the extent of plaintiff’s damages. We have carefully read all the evidence and are of 'opinion it fully sustains and justifies the amount found by the trial court. The judgment should be affirmed.

Affirmed.


author: Bailey, P. J.

text:
    John B. Legnard v. Cecelia J. Armstrong et al.
    Mechanic's lien—Notice oe sub-contractor.—A notice of a sub-contractor, though in the statutory form, was addressed, not to the owner of the building but to her husband, who, though the agent of his wife, the owner, had no interest in the premises to which a mechanic’s lien could attach. lie Id, that the notice was not sufficient.
    Appeal from the Circuit Court of Cook county ; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed May 5, 1886.
    Mr. E. B. Payne, for appellant;
    that notice to an agent is notice to the principal and binds the principal, cited Sterling Bridge Co. v. Baker, 75 Ill. 139; Bryan v, Primm, Breese, 33, *59 ; Page v. Brant, 18 Ill. 37.
    Mr. B. W. Ellis, for appellees;
    cited Belanger v. Hersey, 90 Ill. 70.
   Bailey, P. J.

This was a petition by a sub-contractor against the owner of a building for a mechanic’s lien, and the only question which it is necessary for us to consider is as to the sufficiency of the notice given by the sub-contractor of his intention to hold the building liable for the amount due him on account of materials furnished therefor. It appears that Cecelia J. Armstrong was the owner of two lots known as 306 and 308 West Monroe street, Chicago, upon which she caused to be erected a double brick building, her husband, John M. Armstrong, acting as her agent and attending for her to all the business of letting the contracts and superintending the erection of the building. Among other things Mr. Armstrong, as the agent of his wife, let the contract for furnishing the materials and labor in constructing the brick and rubble work to one Edward Hayden, and by a sub-contract between Hayden and the petitioner the latter furnished the brick necessary for the construction of said brick work. The notice given by the petitioner of his intention to insist upon a lien was served on A. J. York, Mrs. Armstrong’s architect, and was as follows:

“To John M. Armstrong:

“You are hereby notified that I have been employed by Edward Hayden, your contractor, to furnish material, to wit, brick to be used in and upon your brick buildings situate in the city of Ohicago, Oook county, Illinois, and numbered 306 and 308 West Monroe street, in said city, and that I have furnished brick upon said buildings, and that I shall hold the buildings and your interest in the ground upon which they are situate liable for the amount that is now due me on account thereof, to wit, $800.

“Dated Chicago, September 12, A. D. 1883.

“ J. B. Leonard.”

We are of the opinion that this notice was not sufficient to lay the foundation for a lien in favor of a sub-contractor. It is well settled that the mechanic’s lien law, being in derogation of common right, must be strictly construed, and consequently there must be at least a substantial compliance with its provisions in order to the establishment of a lien. The notice, though in the statutory form, was addressed, not to the owner of the building, but to her husband, who had no interest in the premises beyond his inchoate right of dower given him by our statute. It did not by its terms seek to affect the estate of Mrs. Armstrong, but only that of Mr. Armstrong, who, though the agent of his wife, had no interest in the premises to which a mechanic’s lien could attach.

It is urged, however, that as the statute does not in express terms require that the notice should be directed to the owner, and provides that it may be served either on the owner or his agent, a notice directed to either is sufficient. With this view we are unable to concur.. It is true that in the form of notice prescribed by the statute, a blank is left for the insertion of the name of the person to whom it is to be addressed, and there is no express direction as to how that blank is to be filled; still the substance of the notice as prescribed is such as to render it certain that it was the intention of the legislature that the blank should be filled with the name of the owner, and that the notice should be addressed to him. Thus the form in which the sub-contract is required to be set out in the notice is, to furnish the labor or material “ upon your” building, and the lien to be claimed is, upon such building and upon your interest ” in the ground. Express language could scarcely render it more plain and certain that the person to whom the notice is required to be addressed is the owner of the building and ground.

Any other interpretation of the statute would render the notice absurd and meaningless. Thus, in the present case, the notice addressed to a person who had no estate or interest in the premises, notified him that the petitioner had been employed by Cl your contractor ” to furnish brick to be used in “ your brick building,” and that he should hold the building and your interest in the ground ” liable for the amount due him therefor. Such notice is not even a substantial compliance with the statute; and as it does not in terms embrace or even refer to any estate or interest of Mrs. Armstrong in the building or ground, it is impossible to see how her estate can be affected by it, or how any lien upon such estate can be based upon it.

It is clear that the statutory notice is a necessary prerequisite to the establishment of a lien by a sub-contractor, and as no proper notice was shown in this case the decree of the court below dismissing the petition was manifestly correct. The decree will be affirmed.

Decree affirmed.


text:
    William A. Stanton, Receiver, etc., v. A. H. Andrews & Co.
    Receiver contesting order op court—Contingent interest.— Where all the funds that could be realized from the insolvent judgment debtor were distributed in pursuance of a stipulation entered into by all the parties interested, and the only person taking an appeal or assigning error was the receiver, who contested the allowance of appellee’s claim. Heldt that the receiver has no right to take it upon himself to regulate the court and contest the allowance of appellee’s claim; that this court can not recognize the contingent interest of the receiver.
    Appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Opinion filed May 5, 1886.
    This case was before this court at the October term, 1885, by the title of A. H. Andrews & Go. v. Stanton, receiver, etc., and an opinion was filed therein reversing and remanding January 6, 1886. That opinion states the facts of the case.
    It appears from the record filed on this last appeal, that in pursuance of a stipulation entered into by all the parties interested in the proceedings below, that an order was entered January 4, 1886, closing up the affairs of the estate of the judgment debtor, the Booth & Osgood Manufacturing Go., and making distribution of all the funds in the hands of said receiver among creditors and claimants, specifying what amount each was to receive, except that as to the appellee, A. H. Andrews & Co., the order directed that the receiver retain the sum of §1,600 out of said funds with which to settle the claim of A. H. Andrews & Co., which was stated to be in litigation. And the order further provided that upon the settlement of that claim the receiver might retain the resi, due, if any there was, as additional compensation and in full payment of his services as such receiver.
    It appears that the mandate of this court having been duly filed and the case redocketed, January 25, 1886, the case was heard upon the petition of A. H. Andrews & Co., answer, replication and master’s report; the court overruled the exceptions of the receiver to the master’s report, and entered a decretal order that said receiver pay forthwith to said A. H. Andrews & Co. out of the funds so in his possession, the sum of 81,392.69, that being the total of the amount found due said company by the master, with interest thereon from the .time the report was filed, and the costs awarded against the receiver on the former appeal. The case having been previously closed in the court below as respected all other parties interested in the estate or assets of the insolvent judgment debtor, the Booth & Osgood Manufacturing Co., the receiver took an appeal from said order to pay A. H. Andrews & Co., to this court.
    Messrs. Hutchinson & Luff, for appellant.
    Mr. Lyman M. Paine, for appellee.
   McAllister, J.

This is a peculiar case. All the funds that could be realized from the insolvent judgment debtor have been distributed in pursuance of a stipulation entered into by all the parties interested; and no one of the creditors or claimants is here to complain. The only person taking this appeal or assigning error, is the receiver. The judgment debtor, the several creditors and claimants, are all content with what has been done, and the receiver has no case showing that he personally and in his office of receiver has not been fairly dealt with. He makes no complaint that he did not receive just compensation for his services. He comes here, not as the representative of the judgment debtor, or of any party interested in its funds, but on his own behalf, to contest the order of the court as respects the judgment of the A. H. Andrews & Co.’s claim, which the master, which the court below, and which this court, on the former appeal, found to be just and right.

A receiver is an officer of the court, and has been figuratively styled the hands of the court. With that figure in mind, this case appears very much like a mild rebellion of the hands against the head. The funds of the judgment debtor’s estate having heen distributed among all creditors and claimants by the agreement of all the parties in interest, and, by the same agreement, sixteen hundred dollars set apart for the purpose of satisfying appellee’s claim, the question naturally arises, how is it that the receiver takes it upon himself to regulate the court and contest the allowance of appellee’s claim? It is apparent to us that this action on his part is dictated by that provision of the order of January4,1886, which constructively gave the receiver a contingent interest in the sixteen hundred dollars set apart for appellee’s claim. We can not but regard that part of said order as injudicious. It placed the receiver in a position where his interest was in direct conflict with his duty. If he had such an interest, thus inconsistent with the impartial performance of his duty at the time of his appointment, he would have been ineligible. If so, was it not clearly improper to place him in such a position after his appointment? We think it was; because it would naturally induce him to use his best endeavors to either defeat the claim of A. H. Andrews & Co. altogether, or reduce it to the lowest amount possible. That being the case, he has no right to com plain of the action of the court in afterward exercising its proper functions by fixing the amount which was due appellee and peremptorily ordering the receiver forthwith to pay it. The receiver’s contingent interest in the sixteen hundred dollars was one which we can not recognize and which the court below was at liberty to disregard, because it should never have been created. We have fully considered the matter of the alleged set-off, or the receiver’s right to damages against A. H. Andrews & Co., arising out of the refusal of the latter to have the receiver go on with the performance of the contract which the Booth <fc Osgood Manufacturing Company had at the time of their failure, to furnish the former with 30,000 desk woods. If A. H. Andrews & Co. had not, under the peculiar terms of that contract, been discharged from the performance of it, by the failure of the Booth & Osgood Manufacturing Company to comply with its terms, the latter by its failure in business became utterly incapacitated to perform, and that relieved AII. Andrews & Go. from all its obligations in the future. The performance by the manufacturing company was of a personal character and the other contracting party was under no obligation to accept performance by the receiver or anybody else. Hobson & Sharp v. Drummond, 2 Barnw. & Add. 303.

We are of opinion that there was no merit in the receiver's claim of set-off on the ground of appellee’s refusal to go on with that contract, and there is no error of which be has any j ight to complain. The order appealed from will be affirmed.

Affirmed.


text:
    Thomas C. Hoag v. Charles Carpenter.
    1. Landlord and tenant—Surrender.—The execution and acceptance by both parties, of a lease really intended by the parties as a substitute for a former lease which had been destroyed, must be held as ¡amounting in law to a surrender of the former lease, and of all the rights to which the lessee was entitled thereunder.
    2. Evidence—Parol, to vary written agreement.—The admission of evidence tending to establish an oral agreement cotemporaneous with the execution of a lease, is a clear violation of the rule which prohibits the acliuis. sion of parol evidence to add to or vary a written agreement.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed May 5, 1886.
    Mr. Frank R. Grover, for appellant.

      Hr. John E. Dalton, for appellee.
   Bailey, P. J.

This was a suit brought by Thomas 0. Hoag against Charles Carpenter, before a justice of the peace, and taken by appeal to the circuit court, where a trial was had before the court and a jury, resulting in a judgment and verdict for the defendant. The suit was brought to recover the taxes for the year 1882, on certain premises previously demised by the plaintiff to the defendant, and which the defendant in and by said lease had covenanted to pay.

At the trial the plaintiff, to maintain the issues on his part gave in evidence a lease, which appears to have been executed by the parties under their respective hands and seals in duplicate, by which the plaintiff demised to the defendant certain premises, for a term beginning February 1, 1872, and ending Hay 1, 1878, reserving certain rent, and in which the defendant covenanted, among other things, to pay all ordinary taxes upon the demised premises, for city, county and State purposes, during the term. By an indorsement on the lease executed by the parties under their respective hands and seals^ said lease was extended for five years from Hay 1, 1878, at a certain stipulated rent, subject to all the conditions mentioned in said lease. The plaintiff also proved that the taxes on the demised premises for the year 1882 amounted to $56.42, and that he had paid said taxes, and it was admitted by the defendant that he had not paid any portion of the taxes for that year.

The defendant "thereupon read in evidence a lease of the same premises, executed by the plaintiff and defendant, under their respective hands and seals, bearing date April 1, 1868, by which the plaintiff demised to the defendant said premises for a term commencing April 1, 1868, and ending April 30, 1878, said lease containing a like covenant on the part of the defendant in relation to the payment of taxes. ■ The defendant also gave evidence tending to show that the last mentioned lease having been executed in duplicate, and the copy held by the plaintiff having been destroyed by the great fire of October 9, 1871, the plaintiff applied to the defendant for a loan of his copy, for the purpose of enabling him to draw up and have executed a duplicate in place of the one destroyed, and that the plaintiff, in place of drawing up such duplicate, drew up a new lease and brought it to the defendant to be executed, and retained the old lease in his possession. It is not disputed that the new lease was executed by both parties, nor is it suggested that any fraud was practiced on the defendant in procuring its execution.

The defendant also gave evidence tending to show that cotemporaneously with the execution of the lease of 1868 there was an oral agreement between the plaintiff and defendant, not embodied in the lease, that the defendant should pay the taxes on the demised premises for the year preceding the beginning of the original term, and that, in consideration of such payment, the defendant should be released from the payment of the taxes for the last year of the term, and that in pursuance of that agreement the defendant paid the taxes on said premises for the year 1867. It was admitted that tl e defendant had paid the taxes for each succeeding year up to but not including the year 1882. It is claimed that by reason of the facts above stated the defendant was discharged from the payment of the taxes for the year last named, and it seems that the court and jury so held.

It can' scarcely be doubted that the rights of the parties are to be determined by the lease of February 1, 1872. Although that lease may have been really intended by the parties as a substitute for the former lease which had been destroyed, yet we think that its execution and acceptance by the defendant must be held as amounting in law to a surrender of the former lease, and of all the rights to which the defendant was entitled thereunder. Jungerman v. Bovee, 19 Cal. 355 ; Livingston v. Potts, 16 John. 28 ; Van Rensselaer v. Penniman, 6 Wend. 569 ; Ryan v. Kirchberg, 17 Bradwell, 132; Wood on Landlord and Tenant, § 492; Taylor on Landlord and Tenant, § 507. If then, the plaintiff had, in respect to the former lease, a light' to be exempted from the payment of the taxes levied during the last year of the term, that right was surrendered on accepting the new lease, and by that lease the defendant expressly covenanted to pay the taxes for that year.

Even if the defendant retained any right growing out of his payment of the taxes of 1867 after his acceptance of the new lease, it was a right of action only. The oral agreement applied only to the lease of 1868, which was surrendered, and had no application to the new lease. In that lease the defendant entered into a new covenant to pay the very taxes which he now claims to have been already discharged from paying. If it were necessary to show a consideration for this new covenant, it is to be found in the fact that the new lease contains various terms and conditions not contained in the former lease, some of them more advantageous to the defendant. If the defendant did not intend to abandon his claim for having-paid the taxes of 1867, all that remained to him was the right to recover the money ba,ck. That was a mere chose in action to which the Statute of Limitations applied, and which was clearly barred long before the plaintiff’s present action or right of action arose.

But we think that the evidence tending to establish an oral agreement cotemporaneous with the execution of the first lease, was a clear violation of -the rule which prohibits the admission of parol evidence to add to or vary a written agreement. Such evidence, so far as it had any effect at all, tended to vary the terms of the lease so far as they related to the payment of! taxes. If the defendant paid out any' money under such oral agreement, he was in no position to take advantage of the agreement, but stood in the attitude of having paid, laid out and -expended money at the request and for the benefit of the plaintiff, and an action immediately accrued to him to recover it back, an action which manifestly has long since been barred by the Statute of Limitations.

The plaintiff’s evidence established a clear right of action, and that introduced by the defendant showed no defense. It follows then the verdict was contrary to the evidence, and the judgment for that reason must be reversed and the cause remanded.

Judgment reversed.


author: Moran, J.

text:
    West Chicago Park Commissioners et al. v. John Brenock.
    1. Park commissioners.—By an exception in the act of 1869 creating the West Chicago Park Commissioners, the commissioner who for the time being should be president of the board might have such compensation as president as the board in its discretion should fix, not to exceed $4,000. By the general act of 1871 it is declared that no park commissioner shall receive any salary as compensation for personal services. Held, that as the 1 after provision is utterly repugnant to the exception in lie firmer act, the "aw of 1871 abre gates the act of 1869, as ref ards the discretion as to president’s salary given to the board in the act of 1869.
    2. Act of 1873.—The act of 1873, repealing in tolo the act of 1871, did not restore to the board the discretion vested in it by the act of 1869. (Act of 1873, § 14.) No act or part of an act repealed by the general assembly shall be deemed to be revived by the repeal of the repealing act.
    Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed May 5, 1886.
    Mr. Wm. E. Mason and Mr. J. D. Adair, for plaintiffs in error
    ; that the act of 1871, being a general law, does not repeal the prior special law, cited Town of Ottawa v. La Salle Co., 12 Ill. 339; City of Covington v. East St. Louis, 78 Ill. 549 ; Litchfield Co. v. Taylor, 81 Ill. 590 ; Gunnarsshon v. City of Sterling, 92 Ill. 569 ; Wragg v. Penn Township, 94 Ill. 11.
    The acts of 1869 and 1871 are affirmative statutes, the one relating, on the point here raised, to the compensation of the hoard as such, except as to one of its officials; the latter, to the board as such, and is silent as to its officials. Hence, while by both statutes the hoard, as such, could receive no compensation, the authority it possessed by the original act, to vote, in its discretion, a salary to its president, was in no manner affected by the act of 1871: Brice v. Schuyler, 4 G. 221; Harding v. R., R. I. & St. L. R. R. Co., 65 Ill. 90; Fowler v. Pirkins, 77 Ill. 271; Wragg v. Penn Town, 94 Ib. 11.

      Mr. George H. Smith, for defendant in error;
    cited Day v. Clinton, 6 Bradwell, 476; Tuley’s Laws and Ordinances 1873, 611; W. C. P. Com’rs v. W. U. T. Co., 103 Ill. 33 ; Kedzie v. W. C. P. Com’rs, 114 Ill. 280.
   Moran, J.

On a bill filed by the defendant in error, the circuit court entered a decree restraining the West Chicago Park Commissioners from ¡laying, and Harvey M. Thompson, as its president, from receiving, the sum of twenty-five hundred dollars, voted by said board to said Thompson as a salary as president of the board.

The entering of said decree is assigned for error, and the question presented is, whether said West Chicago Park Commissioners had authority to vote a salary to the president of said board. °

The act creating the Board of West Chicago Park Commissioners provides, among other things, that “ The said commissioners shall receive no compensation for their services, except the president, who may, in the discretion of said board, have and receive such compensation as may be fixed, as hereinafter provided, not to exceed four thousand dollars per annum.” R. L. 1869, Vol. 3, p. 342.

In 1871 the legislature passed an act entitled An act to enable corporate authorities of towns to levy a tax to improve public parks and boulevards, and to provide for the extension of boulevards, and regulating the duties of park commissioners and limiting the period within which they may he paid salaries.”

Sec. 7 of said act declared: “ Ho park commissioner shall receive any salary for personal services, or be directly or indirectly interested in the purchase or sale of park lands or park bonds, and all transactions in violation of this section shall be null and void, and the commissioner so offending shall forfeit his office * * * * provided, that the provisions of this section shall not take effect until December thirty-first, eighteen hundred and seventy-two.”

The contention of counsel for plaintiff in error is, that the act creating the West Park Board was a special act; that the act of 1871 is a general act, and that the discretion given to the hoard in the special law, to allow the president a salary^ will not be repealed by implication, by a general law.

While the act of 1871 is in terms general, it affects, by its provisions, the corporations and persons to whom by its terms it is made applicable.

The West Chicago Park Commission is a quasi municipal corporation and the Supreme Court has decided that it was described by the definition of the class which the legislation was to affect. West Chicago Park Commissioners v. W. U. T. Co., 103 Ill. 33; Kedzie v. W. C. P. Comm’rs, 114 Ill. 280.

That repeals by implication are not favored is true; and when there is room to so construct the acts that the two may stand, it will be done. But when there is a positive repugnancy between the latter and former act, the law must be found in the last and the prior must be held to be repealed.

By the exception in the act of 1869, the commissioner who for the time being should be president of the board, might have such compensation as president, as the board in its discretion should fix, not to exceed four thousand dollars.

By the act of 1871 it is declared that no park commissioner shall receive any salary as compensation for personal services.

These two provisions relate to the same subject, i. e., compensation or salary of commissioners.

The 'after provision is utterly repugnant to the exception in the former act. By no reasonable construction can the acts be reconciled, so as to leave in the board the discretion as to a salary for the president, which was given in the first act, and it must he held that to that extent it was the intention of the legislature, by the law of 1871, to abrogate the act of 1869.

In 1873 the legislature passed another act which, by description of the class intended to be included within its provisions, was by the same language as that used in the law of 1871 made applicable to the West Chicago Park Commissioners.

By it the act of 1871 is repealed in toto, and it declares in Sec. 14, “Ho member of such board of park commissioners shall be directly or indirectly interested in the purchase or sale of any park lands, or in any contract for the improvement of any park, or shall receive any compensation for personal services, except such and only such as provided by the act creating such hoard of park commissioners.”

The foregoing section had not the effect of restoring to the board the discretion vested in it by the act of 1869: “ No act or part of an act repealed by the general assembly shall be deemed to he revived by the repeal of the repealing act.” R. S. Chap. 131, Sec. 3 ; Day v. Clinton, 6 Bradwell, 476.

It must therefore he concluded, that the Board of West Chicago Park Commissioners had no authority to vote or pay to the president of said board any salary or compensation, and the decree of the circuit court restraining the payment of such salary must be affirmed.

Affirmed.


author: Bailey, P. J. Mobar J.5

text:
    Charles L. Bonney v. Mary E. Stoughton, Adm’x, etc.

      1. Partnership—Accounts—Statute of Limitations.—A bill in chancery between parties or their representatives for an account, is subject to the limitation of five years, and where the bar of the statute appears on the face of the bill and no circumstances are alleged to take the case out of the statute, the bill is obnoxious to a demurrer.
    2. Same—Mistake of law.—The court is of opinion that the facts stated in this bill fail to take the case out of the Statute of Limitations, the only ground of relief being a mistake of law, not unmixed with negligence.
    Error to the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Opinion filed May 5, 1886.
    Mr. C. C. Bonnet and Mr. Lyman M. Paine, for plaintiff in error.
    Messrs. Swett, Grossoup & Swett, for defendant in error.
   Bailey, P. J.

This was a suit in chancery, commenced on the 20th day of January, 1885, by Charles L. Bonney, as assignee of Edward G. Bowzer, against Mary E. Stoughton; administratrix of the estate of Charles H. Crowell, deceased, for an accounting and settlement of a partnership heretofore existing between said Crowell and said Bowzer, under the firm name of C. H. Crowell & Co., it being alleged that on such accounting and settlement it would appear that a considerable balance was due the complainant. .A demurrer was sustained to the bill on the ground that the right to an accounting was barred by the Statute of Limitations, and a decree was thereupon entered dismissing the bill at the complainant’s costs.

It is alleged that said partnership was in existence and doing business on the 1st day of July, 1878, and that it was terminated and ended by the mutual act, consent and acquiescence of said partners on the 20th day of May, 1879. It thus appears from the averments of the bill that more than five years elapsed after the dissolution of the partnership and before the commencement of this suit. A bill in chancery between partners or their representatives for an account, is subject to the limitation of five years. Quayle v. Guild, 91 Ill. 378. And where the bar of the statute appears on the face of the bill, and no circumstances are alleged to take the case out of the statute, the bill is obnoxious to a demurrer. Henry County v. Winnebago Drainage Co., 52 Ill. 454.

By way of attempting to take the case out of the statute, the bill alleges, in substance, that at the time of the dissolution of the firm, Bowzer called on Crowell for a settlement of the accounts of the partnership, and thereupon said accounts were discussed between them, Bowzer claiming that there was due him on a correct settlement the sum of §1,950 ; that Crowell did not deny that on a settlement there would be a considerable amount due Bowzer, and did not dispute the amount claimed by Bowzer; that thereupon the parties made sundry computations relating to said amount for the ostensible purpose of determining the same; that Crowell then and there made upon a piece of paper sundry figures and computations, and among other figures and items wrote down the figures “ 1137.75,” to which said Bowzer added the figures “90.31” making a total of “ 1230.06,” and said Bowzer then and there understood and believed that the figures so made between Crowell and him, together with the other figures and memoranda written at the same time, which figures and memoranda were then and there delivered by Crowell to Bowzer, amounted in fact and in law to an admission by Crowell that the sum of $1,230.06 was due from him to Bowzer on a. settlement of the partnership accounts, until it was adjudged to the contrary as hereinafter stated ; that about December 18, 1881, Crowell died, and that Mary E. Stoughton was thereupon appointed administratrix of his estate ; that on the 21st day of August, 1882, Bowzer, still believing that what transpired between him and Crowell on "the 21st day of May, 1879, constituted a valid settlement in law and equity, filed liis claim against the estate of Crowell for said sum of $1,230.06, and that such proceedings were afterward had in the probate court in the matter of said claim, that it was adjudged by said court that no final settlement had been had between said partners in respect to the accounts of said firm, and said claim was by said court on that ground disallowed; that the matter of said claim was thereupon taken by app’eal to the circuit court, where, on trial, said claim was disallowed on the same ground, the judgment of the circuit court in said matter being rendered on the 2d day of Movember, 1884.

The facts stated in the bill fail, in our opinion, to take the case out of the Statute of Limitations. Mo fraud is alleged, the only ground of relief being mistake. The mistake, however, does not seem to be one of fact., It is nowhere alleged that Bowzer was not fully and completely cognizant of all the facts upon which he based his assumption of a settlement. They all took place in his presence. Mothing, so far as appears, was concealed from him, and nothing is shown to have been done by Crowell or any other person, tending to mislead him or to take any undue advantage of him. His mistake was that of placing an improper construction upon facts with which he was perfectly cognizant; or in other words, his mistake was purely a mistake of law, unaccompanied by any special circumstances which should induce a court of equity to interpose to relieve him from the consequences of his mistake. It may be further remarked that his mistake is by no means unmixed with negligence. It is difficult to see how the facts stated in the hill could of themselves alone have been relied upon in good faith by a person of ordinary understanding, as amounting to an accounting and settlement of the affairs and business of the pirtnership. It does not appear that the accounts of the firm were gone over and a balance struck, but only that after some negotiations the parties set down on a piece of paper certain figures unaccompanied by any explanation, either oral or written. There was no word or character even indicating that the figures were intended to represent sums of money. Hothing is shown to have been said or done by either party, indicating in any intelligible manner that the figures thus written down were to be taken as a statement of the balance due from Crowell to Bowzer. If such was the intention, it would have been natural for something to have been said indicating such intention, and it was at least incumbent upon Bowzer, instead of relying upon memoranda, which were of themselves meaningless on at least equivocal, to have obtained from Crowell some expression of wliat he meant by them. His professions of good faith in supposing that he had obtained a final settlement, require some stretch of credulity in order to be believed.

We think the court below properly sustained the demurrer, and the decree will be affirmed.

Decree affirmed.

Mobar J.5

took no part in this decision.


text:
    James Todd v. City of Chicago.
    1. License to make excavation in street—Liability.—One who receives a permit from the proper municipal authorities to dig in the street, receives such license or permission under an implied agreement to perform such act in such a manner as to save the public who use the street from danger and the municipality from liability.

      2. Suit against city—Judgment.—When a suit is brought against a city for damages caused by the act of one who obstructs or excavates in the street and such person has notice of the suit, the judgment will be conclusive against him in an action by the city to recover over the amount it has been compelled to pay, so far as relates to all matters necessarily included in the adjudication.
    8. Contractors—Possession of owner.—When the different portions of the wor kare let to different contractors, the interval between the completion of his work and departure from the premises by one contractor and the actual entry on the premises in the performance of his particular contract by another, must be held to be the possession of the owner, and during such interval it is his duty to maintain such barriers or guards around an excavation which he has caused to be made in the sidewalk as will protect passersby against the pitfall.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed May 5, 1886.
    This case was an action brought by appellee against appellant, to recover the amount of a judgment obtained by one Mary Wells against the city of Chicago, in an action brought in the circuit court, wherein she recovered damages for an injury sustained July 23, 1831, by falling into an open space in front of the lot of appellant. The city paid the judgment before bringing this suit.
    Todd was at the time of the accident erecting a building on his lot, and by his authority the space underneath the sidewalk had been excavated, for the purpose of using said space for the convenience oE the building then being erected and for the use of its future occupants.
    There was placed over said sidewalk excavation a stone flagging, with the exception of a space four feet in width next to the said building, around which there was no protection, and into which Mrs. Wells fell.
    Todd had a permit from the city to build the building, but such permit does not, in terms, authorize the excavation under the sidewalk.
    bio tice was given to Todd of the suit of Mrs. Wells against the city, and he was requested to defend it. Todd was a nonresident and his building was being erected under the superintendence of an architect and under contracts made with different contractors, for separate portions of the work, no one contractor having entire possession of the premises.
    The space left open in the stone flagging into which Mary Wells fell was to he covered with iron work, and the contract for such iron work was let to Holmes and Pyott, but they had not commenced work at the túne of the accident.
    Mr. John D. Adair, for appellant;
    as to liability of contractors, cited Scammon v. City of Chicago, 25 Ill. 424; Schwartz v. Gilmore, 45 Ill. 455; Pfau v. Williamson, 63 Ill. 16; Glickauf v. Maurer, 75 Ill. 289; Hale v. Johnson, 80 Ill. 195; Kepperly v. Ramsden, 83 Ill. 354; Arasmith v. Temple, 11 Bradwell, 39.
    Mr. Hempstead Washburre and Mr. Clarerce A. Bright, for appellees;
    cited City of Chicago v. Robbins, 2 Black. 423 ; Robbins v. City, 4 Wall. 657 ; Clark v. Fry, 8 Ohio, 359 ; Harmon v. Stanley, 66 Pa. 464 ; Creed v. Hartman, 29 N. Y. 592 ; Storrs v. City of Utica, 17 N. Y. 104 ; First Nat. Bank of Port Jervis v. Port Jervis, 96 N. Y. 550 ; City of Rochester v. Montgomery, 72 N. Y. 66; Fahey v. Town of Howard, 62 Ill. 28; Cooley on Torts, 626 ; 1 Sutherland on Damages, 157; 2 Dillon on Municipal Corporations, 1055 ; Palmer v. City of Lincoln, 5 Neb. 136 ; Pfau v. Reynolds, 53 Ill. 212.
   Moran, J.

A municipal corporation which is compelled to pay a judgment to a person injured by an obstruction or excavation in the street or sidewalk of such corporation, may recover over against the person who by negligence or by a wrongful act created the obstruction or excavation which caused the injury. Gridley v. City of Bloomington, 68 Ill. 47 ; City of Rochester v. Montgomery, 72 N. Y. 67; Village of Port Jervis v. First National Bank, 96 N. Y. 550.

It is not material to consider in this case, the question made by appellant’s counsel as to whether the permit given in fact, is to be construed as authority from the city to Todd, to exeavate tlie sidewalk space. One who receives a permit from the proper municipal authorities to dig in the street, receives such license or permission under an implied agreement, to perform such act in such a manner as to save the. public, who use the street, from danger, and the municipality from liability. Village of Seneca Falls v. Zalinski, 8 Hun, 571; The City of Chicago v. Robbins, 2 Black. 418.

And when a suit is brought against a city for damages caused by the act of one wdio obstructs or excavates in the street, and such person has notice of the suit, the judgment will be conchisive against him, in an action by the city to recover over the amount it has been compelled to pay, so far as relates to all matters necessarily included in the adjudication; such as that the person was injured at the place alleged, without fault on his part, and that damages were sustained to the amount of the judgment, and that in this case, the excavation was wrongfully and negligently permitted to remain uncovered and unguarded. City of Bloomington v. Roush, 13 Bradwell, 339; Severin v. Eddy, 52 Ill. 189.

If the permit did not authorize defendant to excavate in the street, then what was done, was unlawful, and created a nuisance per se, and being done by his direction he was bound, at his peril, to see that it was guarded and covered so that the public should not be injured in passing along. Congreve v. Smith, 18 N. Y. 80 ; Clark v. Fry, 8 Ohio St. 359 ; Stephani v. Brown, 40 Ill. 428.

The main contention by appellant’s counsel, is, that under the rule laid down in Scammon v. The City of Chicago, 25 Ill. 425, the appellant can not be held liable in this case, as work was being done by different contractors upon the building, and the building and premises were not in appellant’s possession. In that case the contractor for the iron work had commenced but not completed his work, when the accident occurred and for the time being was in the actual possession of the property. “ While the contractor is in possession of that part of the premises upon which the excavation is to be made, with the exclusive control of the work, it becomes an incident to his undertaking to so do the work as to be reasonably safe for passers-by, observing due care for themselves, and that duty, it is declared, includes the erection and maintenance of suitable safe-guards about all excavations at all dangerous.” Kepperly v. Ramsden, 83 Ill. 354,

In such case the owner is not liable, and the question must always arise, who was, in fact, in possession of the portion of the premises where the injury occurred, at the time of the occurrence, and this is a question of fact.

Here the evidence tends to show that Singer & Talcott, the stone flagging contractors, had completed their work and removed entirely from the premises. The iron contractors? who were to cover the hole in the sidewalk between the edge of the stone flagging and the building, had not commenced their work or in any manner gone into possession of the premises.

When the different portions of the work are let to different contractors, the interval between the completion of his work and departure from the premises by one contractor, and the actual entry on the premises in the performance of his particular contract by another, must be held to be the possession of the owner, and during such interval it is his duty to maintain such barriers or guards around an excavation which he has caused to be made in the sidewalk, as will protect passers-by against the pit-fall.

The fact that the second contractor does not enter on the work promptly, or that by the terms of his contract, he is at the time of the accident entitled to have control and possession of the particular portion of the premises to do his work, will not relieve the owner from liability. In order to charge the contractor with the duty of maintaining safe-guards about an excavation, and relieve the owner from such duty, the contractor must be in actual possession of the premises, and have the entire and exclusive control of the work in his charge. Kepperly v. Ramsden, supra ; Pfau v. Williamson, 63 Ill. 20.

The finding of the court below is fully sustained by the evidence, and on well settled legal principles, the judgment was correct and must therefore be affirmed.

Affirmed.


text:
    The Fame Insurance Co. v. Eliza T. Norris.
    1. Insurance—Adjustment.—Where a party was employed by an insurance company to go upon the premises, and in conjunction with representatives of other companies and the assured to make calculations and deductions, and after all proper allowances and deductions were made the proportion of the loss to be paid under the policy was ascertained and stated. Held, that this was an adjustment, and the fact that it was not formally signed and an express promise made in such manner as to conclusively bind the company willjnot, under the circumstances of the case, prevent such adjustment from being received as prima facie evidence of the right of the assured to recover the amount thereby ascertained.
    2. Same.—A promise to pay the amount may be implied from such adjustment, but the defendant is not estopped by it, and may avail itself of any defense which will show that the implied promise is without consideration.
    Appeal from the Circuit Court of Cook county ; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed May 5, 1886.
    Hr. Henry C. Whitney, for appellant;
    that the business performed by Montgomery was not an adjustment in legal parlance so as to be binding on the underwriter, cited Phillips on Insurance, § 1815; Park on Insurance, 117; Starkie on Ev. § 1168; Farmers, etc., Ins. Co. v. Chestnut, 50 Ill. 112; I. M. Ins. Co. v. Archdeacon, 82 Ill. 236; Arnold on Insurance, 196, 197; 2 Green on Ev., § 393; Hughes on Insurance, 274.
    Messrs. Crant & Brady, for appellee ;
    that the pleadings and proofs are sufficient to enable the plaintiffs to recover upon an implied promise, cited Mut. Fire Ins. Co. v. Archdeacon, 82 Ill. 236 ; Farmers Ins. Co. v. Chestnut, 50 Ill. 112 ; Abbott’s Law Dictionary, title, Adjustment; 2 Phillips on Insurance, Ch. 21, p. 482 ; 1 Chitty on Pleading, 340; Fowler v. Deakman, 84 Ill. 130; Smith v. Clens Falls Ins. Co., 62 N. Y. 85.
   Moran, J.

This appeal is from a finding and judgment in the court below, in favor of appellee.

The narr. was the common counts with a special account attached as follows: “To amount of loss as adjusted on policy Ho. 1968, $244.45.”

On the trial plaintiff introduced the insurance policy, and a writing purporting to be an adjustment and apportionment between Horris and Trickey and some twenty-one different companies. It appears from the record that the writing showing the adjustment and apportionment was made by J. C. Montgomery, who was an independent insurance adjuster, and who was employed by Southwick, the general agent of the defendant, to adjust the losses on all policies which he represented in the Homs planing mill fire.

Montgomery met with other adjusters who represented different companies, and with Homs and Trickey, and after making various valuations and deductions the proportion of the loss due on this policy was fixed at $244.45.

The writing showing adjustment and apportionment was taken by Montgomery and Horris to Southwick and delivered to him, and proofs of loss were made out on the basis of the adjustment, and properly executed and also delivered.

The adjustment and proofs of loss were forwarded to the secretary of the defendant company, and it does not appear that any objection, either to the proofs of loss or the adjustment, was ever made to the plaintiff. When making the adjustment, Montgomery stated to Horris and Trickey that lie would advise his companies to pay cash on the adjustment.

Counsel for appellant, while he admits “ that the sum fixed by Montgomery, in his adjustment, is the true amount of the loss, if the insured is entitled to anything, ” still insists that what Montgomery did was not binding upon the company, he having no authority to bind it. The contention is that the statement in writing made by Montgomery was not within the meaning of the law an adjustment. An adjustment is defined to be, “ the settling and ascertaining the amount of the indemnity which the insured, after all proper allowances and deductions have been made, is entitled to receive, and the proportion which each underwiter is liable to pay under the policy.” Marshall on Insurance, 617.

In this case Montgomery was employed by the defendant company to go upon the premises, and in conjunction with the representatives of other companies and the assured, to make calculations and deductions, and after all proper allowances and deductions were made the proportion of the loss to be paid under this policy was ascertained and stated. This would seem to be an adjustment within the foregoing definition, and that it was not formally signed, and an express promise made in such manner as to conclusively bind the company, will not, under the circumstances of this case, prevent such adjustment from being received as grima, facie evidence of plaintiff’s right to recover the amount thereby ascertained.

In Bordes v. Hollet, 1 Caines, 444, where the amount was apportioned and noted on the back of the policy, by one who acted for the defendant and other underwriters in adjusting claims against them, and such adjuster testified “ That though he was thus employed and though the underwri tors did usually assent to and pay according to his reports, still he had no bind, ing authority on them, for they often disputed his statements, notwithstanding they had not, to his knowledge, on the present occasion, either assented or dissented from the calculations he had made,” it was held that though the insurer was not bound by the adjustment and was at liberty to show that it was erroneous, still as there was no dissent from it, and no attempt was made to show it wrong, it was sufficient to sustain the finding and judgment against the underwriter.

On the question of the authority of the adjuster, that case is very much like this one.

Courts do not favor the position sometimes assumed by insurance companies, that an agent employed for a specific work, such as adjustment of losses, and who proceeds to negotiate with the assured and make valuations and deductions, acquiesced in by the assured, for the sake of getting his loss settled, has no authority to ascertain as between the company and the assured the amount due. F. & M. Ins. Co. v. Chestnut et al., 50 Ill. 111.

We think the finding of the court below, that the loss was adjusted, was a just conclusion under the facts in this case and that the adjustment, as .shown by the written statement made by Montgomery, was competent evidence under the common counts and the special account attached to the narr. Angell on Ins., 361; 50 Ill. 111; I. M. Ins. Co. v. Archdeacon, 82 Ill. 236.

A promise to pay the amount may be implied from such adjustment, but the defendant is not estopped by it and may avail itself of any defense which will show that the implied promise is without consideration. Herbert v. Champion, 1 Campbell, 134; Colonius v. Hibernia Fire Ins. Co., 3 Mo. App. 56.

.By the special count the defendant was advised that the claim of the plaintiff was for the amount of loss on the policy as adjusted.

There was nothing to prevent defendant from filing special pleas or from proving under the general issue any matter of defense which would defeat the plaintiff’s right to recover on the policy. Ho such defense was attempted, and the judgment was correct and must be affirmed.

Affirmed.


text:
    John C. Lullman et al. v. Charles P. Barrett et al.
    1. Demurrer.—When judgment is given against a party on demurrer to a pleading, such party, if he wishes to obtain a review of the judgment must stand by his pleading in the court below, otherwise he will be precluded from assigning the judgment for error.
    2. Jurisdiction—Changing prom daw to chancery.—Courts of chancery and courts of law are, in this State, distinct tribunals. Though they may be presided over by the same judge they possess separate and distinct jurisdiction. Where parties upon demurrer to a declaration elected to take leave to file an amended declaration, and afterward sought to amend by filing a bill in chancery in place of the declaration. Held improper to thus change the action at law to a suit in chancery.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed May 11, 1886.

      Messrs. Willard & Driggs and Mr. Frauk J. Loesch, for appellants;
    that the court erred in overruling the motion to change the form of the action from an action at law to a suit in chancery, cited R. S., 1874, Ch. 110, § 24; St. Peters v. Germain, 104 Ill. 440; Atkins v. Fiber Dis. Co., 18 Wall. 272; N. S. v. Freeman, 3 Howard, 563.
    Messrs. C. C. & O. L. Bohhey and Mr. Lymatt M. Paihe, for appellees;
    as to jurisdiction, cited Ross v. Buchanan, 13 Ill. 55; Chancery Act of 1845; Hodgen v. Guttery, 58 Ill. 431; Booth v. Wiley, 102 Ill. 100.
   Moran, J.

The demurrers of the appellees to the appellants’ declaration, were sustained by the court below, and, instead of standing by the pleading, the plaintiffs moved the court for leave to file an amended declaration, and obtained said leave. Afterward, appellants sought to amend by filing a bill in chancery, in place of the declaration, and thus changing the proceeding from an action at law to a suit in chancery. Leave to file the bill in the action at law was denied, and the action was dismissed out of court.

Appellants assign for error the sustaining of the demurrer to the declaration, and the refusal of the court to allow the amendment changing the proceedings to a suit in equity.

By electing to take leave to file an amended declaration, instead of standing by the declaration to which the demurrer was sustained, the plaintiffs abandoned their declaration, and can not assign the sustaining of demurrer for error.

It has been repeatedly decided that when judgment is given against a party on demurrer to a pleading, such party, if he wishes to obtain a review of the judgment, must stand by his pleading in the court below, otherwise he will be precluded from assigning the judgment for error. Gilbert v. Maggord, 1 Scam. 471; Snyder v. Gaither, 3 Scam. 91; Gardner v. Haynie, 42 Ill. 291; Snell et al. v. Cottingham, 72 Ill. 161; McFadden v. Fortier, 20 Ill. 515 ; Camp v. Small, 44 Ill. 37.

Counsel contend that the court erred in refusing leave to file the bill of complaint and change the form of the action to a suit in chancery, and argue that section 24, Chap. 110, R. S. 1874, authorizes the amendment and change proposed.

Courts of chancery and courts of law are, in this State distinct tribunals. Though they may be presided over by the same judge, “they possess separate and distinct jurisdiction.” Ross v. Buchanan, 13 Ill. 55.

This distinction has been constantly recognized by the legislature, and at the same session at which the “ act in regard to practice in courts of record,” from which counsel cites, was enacted, an “ act to regulate the practice in courts of chancery ” was passed.

Section 37 of the last named act authorizes amendments of chancery pleading, and is, in that regard and as governing that court, a complete code in itself.

By section 24 of the Practice Act, the amendment of proceedings in the law courts is provided for, and while the language is broad, and authorizes changes from one form of action to another, it can hardly be construed as authorizing, by amendment of the pleadings, a change from one jurisdiction to another. It is true, as counsel states, that the intention of the Jaw-makers constitutes the law, but that which is within the letter is not within the statute, unless within the intention.

We apprehend that whenever the legislature of this State shall see fit to introduce such a change as counsel is contending has been made, it will be so done that there will he a perfect accord between the letter and the spirit of the statute.

The ruling of the circuit court was correct and must be affirmed.

Affirmed.


text:
    New Orleans Insurance Company v. Harmon Spruance.
    Insurance—Policy in name op agent.—Where a broker, or agent has taken insurance for his principal who is undisclosed, and the policy or certificate is in the name of the agent and not disclosing his agency, and the agent has no insurable interest in the property, a recovery in the name of such undisclosed principal is sustainable.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed May 11, 1886.
    This was an action by appellee against appellant, upon aeon-, tract of insurance, made March 17, 1884, whereby the latter as it is alleged, undertook, for a valuable consideration, to in. sure the former against loss by fire upon one thousand bags of timothy seed then in the Northwestern warehouse, in the city of Chicago, from the 18th day of March to the 10th day of June, 1884. The grass seed mentioned was destroyed by fire May 25, 1884. The amount of insurance was §3,955. The case was tried before the court without a jury, resulting in a finding and judgment for plaintiff in the sum of §3,825.67, upon which defendant brought this appeal.
    It appears that the alleged contract of insurance sued upon, arose substantially in the following manner: J. A. Miller & Go. were the local agents of the defendant insurance company at Chicago, and W. W. Caldwell was the general manager thereof throughout the northwest; that January, 1884, the defendant duly issued and put into the hands of said Miller & Co., as its agents, an open policy of insurance, of which all that is material to this case was as follows:
    “No 77,400. §500,000.
    The New Orleans Ins. Co., oe New Orleans, La.,
    “ In consideration of premium paid on each certificate issued -dollars, and of the agreements and conditions herein contained, do insure whom it may concern, to the amount of five hundred thousand dollars, as follows : in such sums, for such periods, upon such property in such places as shall appear with other particulars upon certificates of fire insurance of this company, issued under and subject to all the terms of this policy. No risk to be binding upon the company, except under said certificates duly made and signed by the authorized agents of this company at Chicago, Illinois, and it is a special condition of this policy that each and every certificate of insurance that shall be issued, shall be reported by mail to W. W. Caldwell, Manager of Northern Department, Chicago, Illinois, on the same day that the insurance is to take effect, against all such immediate loss or damage sustained by the assured as may occur by fire to the property above specified, while contained on or in the premises herein described, not exceeding the interest of the assured in the property, and except, as hereinafter provided, from the 1st day of January, eighteen hundred and eighty-four, at 12 o’clock, noon, to the-day of--, eighteen hundred and-,™at 12 o’clock, noon, the amount of loss or damage to be estimated according to the actual cash value of the property at the time of the fire, which loss or damage shall in no case exceed what it would then cost to repair or replace the same, deducting a suitable amount for any depreciation of said property from age, use or otherwise, and to be paid to the assured, or legal representative, as hereinafter provided, and subject to the following conditions
    It appears that the procurement of risks and the issuance of certificates under said policy were within the scope of the agency of said Miller & Co.; that one T. B. Crosby had for a long time been an insurance broker, having an office in Chicago in charge of Gunning, acting for him; that the plaintiff below, Spruance, was a commission merchant in Chicago, and as such, had had frequent occasions for insurance upon produce or merchandise, which, for a year or more, he had been accustomed to have procured through the office of said Crosby, acting as his agent or broker in that behalf; that about March 17, 1881, Spruance being the owner and having warehouse receipts in his own name for the grass seed in question, he, through his clerk, who took said receipts with him, applied at said Crosby’s office for the procurement of insurance upon said seed, which was of the value of §3,955, and in store in the Northwestern warehouse; that having obtained the requisite data for the purpose, ^Gunning, acting for Crosby, prepared an application on behalf of said Spruance for such insurance under said open policy to be obtained at the office of said Miller & Co., with whom said Crosby, as an insurance broker, had a standing arrangement, and took said application and presented it at Miller & Co.’s office, when, the requisite particulars being understood, an entry of the insurance was thereupon made by Miller & Co., in a book of registry prepared as a means of effecting insurance under said open policy; that Miller & Co. knew at the time that said Crosby, in applying for said insurance, was acting only in the capacity of broker or agent for some of his patrons; that in pursuance of the customary mode of effecting insurance under said open policy, Miller & Co. issued to said Crosby a certificate of which the following is a copy:
    “ The New Orleans Insurance Company, by this certificate, in consideration of §15.82 premium paid, do insure T. G. Crosby, agent, against loss or damage by fire, to the amount of §3,955, under and subject to all terms and conditions in open policy No. 77,400, issued by said company, on merchandise contained in Northwestern warehouse, Chicago, Ill., assured’s own, or held in trust or on commission, or consignment, or sold but not delivered, for which assured may be legally liable. Loss payable to assured or order hereon from the 18th day of March, 1884,"to the 18th day of June, 1884. J. A. Miller & Co., Agents. Open certificates must be closed within three months from date of issue.”
    The evidence tended to prove the loss of the seed by fire May 25, 1884; that the contract of insurance was made by Crosby for and on behalf of Spruance; that notice of said certificate was duly given to said Caldwell, and proofs of loss properly made and presented to him.
    Mr. Egbert H. Gary, for appellant;
    that the contract of insurance is a personal contract, and does not run with the subject matter of the insurance, cited May on Insurance, 5, 6; Wood on Insurance, 535, 536 ; Wilson v. Hill, 3 Met. 66; Sadlers Co. v. Babcock, 2 Atk. 554; Adams v. Insurance Co., 29 Me. 292 ; Alexandria v, Lawrence, 10 Pet. 512; Lynch v. Dalzell, 4 B. P. C. 431; Carpenter v. Insurance Co., 16 Pet. 495.
    In order to recover, the person insured must have an interest in the property, and be so situated in reference to it that an injury thereto would result in pecuniary loss to him: Wood on Ins., p. 48, et seq.; May on Insurance, § 74; Phillips on Insurance, §§ 5, 172, 623; Flanders on Insurance, 376; Fowler v. Insurance Co., 26 N. Y. 422; Agricultural Insurance Co. v. Montague, 38 Mich. 551; Bersch v. Insurance Co., 28 Ind. 64; Sawyer v. Mayhew, 51 Me. 398; Sweeny v. Insurance Co., 20 Penn. St. 337; Spare v. Insurance Co., 12 Insurance L. Jour. 365 ; Insurance Co. v. M. M. Co., 1 Gil. 236; Dix v. Insurance Co., 22 Ill. 272; Insurance Co. v. Schneller, 60 Ill. 471; Rohrback v. Insurance Co., 62 N. Y. 47; Carter v. Insurance Co., 12 Iowa, 287; Seagrave v. Insurance Co., L. R. I. C. 305.
    Messrs. Bisbee, Aureus & Decker, for appellee;
    as to contract of agent, cited Ford v. Williams, 24 Howard (U. S.) 287; New Jersey Steam Navigation Co. v. Mechants Bank, 6 How. U. S. 381; Beebe v. Robert, 12 Wend. 413; Taintor v. Prendergast, 3 Hill, 72 ; Sanderson v. Lamberton, 6 Binney, 129; Sims v. Bond, 5 Barn & Ald. 393; Truman v. Loder, 11 A. & E. 594; Dykers v. Townsend, 24 N. Y. 61; Colman v. First Nat. Bank Elmira, 53 N. Y. 393; Briggs v. Partridge, 64 N. Y. 357; Huntington v. Knox, 7 Cush. 371; Eastern R. R. Co. v. Benedict, 5 Gray, 561; Alexander v. Moore, 19 Mo. 143; Woodruff v. McGehee, 30 Ga. 158; Culver v. Bigelow, 43 Vt. 249; Saladin v. Mitchell, 45 Ill. 79 ; H. R. & E. R. R. Co. v. Walsh, 85 Ill. 58.
    As to agent insuring for undisclosed principal: Angell on Insurance, § 81; Miltenberger v. Beacom, 9 Barr, 198 ; Ruth v. Thompson, 13 East, 274; Durand v. Thouron, 1 Port. (Ala.) 238; Watkins v. Durand, Id. 251; Seamans v. Lering, 1 Mass. 127; Solmes v. Rutger’s Fire Insurance Co., 3 Keyes, 416 ; Motley v. Mfg. Insurance Co., 29 Me. 337; Goodall v. N. E. Mut. Fire Insurance Co., 25 N. H. 169 ; Phillips on Insurance, § 109.
   McAllister, J.

The appellant’s counsel does not, as we understand him, make any question as to the right of an undisclosed principal to maintain an action upon a certain class of simple contracts made in the name of his agent on his behalf. Bat he contends that the general doctrine applicable to such cases can not apply to a contract of insurance under the circumstances of this case, because that contract is of a personal nature as regards the assured, and in this case Crosby, in whose name the contract was made, having no insurable interest in the property whose loss by fire was insured against, and ap. pellee, the owner and principal being unknown to appellant^ the contract is for that reason invalid. And counsel says that no case has been cited or can be found wherein it has been held that a recovery in the name of such undisclosed principal has been held sustainable, unless the agent had some insurable interest in the property.

The law of a case arises upon the facts. What, then, are the material facts which the evidence upon the trial tended to prove ?

It appears that the appellant, an insurance company had, before the transaction in question, issued the open policy in evidence, running in express terms, to whom it may concern, and placed it in the hands of Miller & Co. as its agents in Chicago, for the purpose of having the latter take risks thereunder and receive premiums on behalf of appellant, in sub stantially the same manner as was pursued in this case; that it was intended on the part of appellant, by this plan, to afford and to offer to commercial men like appellee, peculiar facilities for obtaining insurance for short periods of time, as the shifting exigencies of commerce in this city might require, it being well understood that insurance, taken under that plan, would almost universally be effected through the agency of insurance brokers acting for their respective patrons.

It appears that Crosby, long before, and at the time of the contract in question, was carrying on the business of insurance broker in Chicago ; that such was his onjy business, and that it was well known to Miller & Co., that he was authorized by appellee to procure the insurance in question for him, and acted in procuring it solely on appellee’s behalf; that at the time Crosby made the application for this insurance at the office of Miller & Go., under said open policy, the latter well knew that he was acting only as broker, and for some third party as his principal; and the evidence tends to show that if Miller & Co. did not know at the time that appellee was, in fact, Crosby’s principal in the transaction, it was because they waived all information on that subject.

Having by their plan and course of dealing, waived all information respecting for whom Crosby was acting, appellant must be regarded as having the knowledge that it was for appellee. Davis v. Boardman, 12 Mass. 80; 1 Phil. on Ins., p. 213, § 404.

Mot to so hold and to permit appellant, after a loss, to question the. validity of the contract, on the ground that Crosby had no insurable interest, and appellee was unknown as principal, would he to allow appellant to use the plan which it had adopted and offered to the public as a snare for the unwary merchants who were foolish enough to confide in commercial honor.

The case for appellee further shows that in the entry of the transaction in the books of registry, and upon the face of the certificate, Crosby’s agency is indicated.

We are required, upon the facts, to hold that to all intents and purposes the contract of insurance involved in this case was with appellee, and is as valid as if his name had been inserted in the certificate in place of that of Crosby as agent. Taking the open policy and the certificate together as constituting the evidence in writing of the contract between these parties, we think it was competent for appellee to bring suit in his own name, and prove by parol his interest and relation to the contract the same as if the certificate, like the open policy, had run to whom it might concern.

But authorities of the very highest character have held that where a broker or agent had taken insurance for Ms principal, who was undisclosed, and the policy or certificate was in the name of the agent and not disclosing his agency, and the agent having no insurable interest in the property, a recovery in the name of such undisclosed principal is sustamable. DeVinier v. Swanson, 1 Bos. & Pul. 346, note; Browning v. The Provincial Ins. Co. of Canada, 5 Law Rep., Privy Council Appeal Cases, 263.

Upon the facts of this case and the authorities cited, we are of the opinion that the judgment below was right and should he affirmed.

Affirmed.


text:
    Marcus C. Stearns v. Patrick Reidy.
    1. Instructions.—A refusal to give an instruction -which is in conformity with law, based on the evidence and presenting a view of the case that may be controlling, and which is not covered by any other instruction, will cause a reversal of the case.
    2. Same—Negligence.—In an action for damages for personal injuries, a modification by the court of several of defendant’s instructions by adding the words “ and he was injured in consequence of his own carelessness and negligence, and not through the carelessness and negligence of the defendant, then the plaintiff can not recover ” was erroneous. The effect of this modification was to direct that the jury must find, besides the facts supposed in the instruction, the further fact that the plaintiff was injured by his own negligence and not by the negligence of the defendant, in order to defeat a recovery, which is not true.
    3. Same.—When there is a sharp conflict of evidence on a material issue in the case, the instructions should be accurate, clear and perspicuous; and when, in such a case, a reviewing court can see that the jury may have been influenced by improper or inaccurate instructions, the case must be sent back for new trial.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed May 11, 1886.

      Mr. M. W. Fuller, for appellant;
    as to instructions, cited C., B. & Q. R. R. Co. v. Warner, 108 Ill. 538; C., R. I. & P. R. R. Co. v. Eininger, 114 Ill. 79.
    Mr. 8. K. Dow, for appellee;
    cited Simmons v. C., R. I. & P. R. R. Co., 110 Ill.; Ill. Central R. R. Co. v. Hammer, 72 Ill. 343; Bauer v. Bell, 74 Ill. 223.
   Moran, J.

This was an action on the case brought by appellee to recover against appellant, for a personal injury received by reason of an explosion of dynamite, contained in a certain rock in appellant’s stone quarry, in which appellee was employed as a workman.

The contention of appellee was that he was directed by one Henry Albright, the foreman in the quarry, to drill out a hole in a certain rock, in which said Albright knew there was an unexploded charge of dynamite, and of which fact appellee was ignorant.

There had just recently been a setting off of a number of blasts in the quarry, and the charge in this particular stone missed, and such eases were known in the quarry as “missed holes.” When such missed holes” occur, which is quite frequent, they are cleared out with what is known as a scraper, and appellee knew that to use a drill in a “ missed hole” was dangerous. Appellee was deaf and testified that while he was at work, drilling a little distance from the stone, Albright, the foreman, attracted his attention, and indicated by motions that appellee should drill a hole in the stone, and placed his finger on the spot in the stone where appellee should drill; .that the stone was of a soft nature or rotten and covered with dirt and gravel; that appellee, not knowing it was a “ missed hole,” commenced to drill at the point where Albright had indicated; that from the soft character of the stone, he did not discover that he was drilling in a hole, and continued to drill until the explosion occurred, which caused the loss of his sight.

Albright, the foreman, testified that instead of telling appellee to drill a hole in the stone, he took the scraper in his hands, and by motions told appellee to scrape out the hole, and laid the scraper down on the stone, near by the il missed, hole” and went to another part of the quarry.

There was also conflict of evidence as to what material was used in the quarry at the time for tamping the holes containing the charge, and on the question whether one could not readily discover that he was drilling in a “ missed ” or tamped hole, instead of into an undrilled stone.

There was a verdict and judgment for the plaintiff, and appellant brings the record here and assigns numerous errors.

Objection is mainly urged to the modification, by the court below, of some of defendant’s instructions and to the refusal to give others.

In the view we take of this case, it will be necessary to consider only the refusal to give some of the defendant’s instructions, as asked, and the propriety of giving them as modified by the court.

The defendant asked the court to give to the jury the following instruction:

“ Ho 22. The jury are instructed that the burden of proof is upon the plaintiff to establish his case by a preponderance of evidence,” and if the jury shall find from the evidence that Henry Albright, without fault or negligence, gave the plaintiff proper directions as to clearing out a missed hole, and that the plaintiff misunderstood such directions, even though without fault or negligence on the plaintiff’s part, and on account of such misunderstanding an explosion occurred and plaintiff was injured, then the plaintiff has failed to establish his case by a preponderance of evidence, and the verdict should be not guilty.”

■ Which the court refused to do, but modified the same and gave the same as modified as follows, to wit:

Defendant’s instructions:

“ The jury are instructed that the burden of proof is upon the plaintiff to establish his case by a preponderance of evidence, and if the jury shall find from the evidence that Henry Albright, without fault or negligence, gave to the plaintiff proper directions as to clearing out a missed hole and that the plaintiff misunderstood such directions, an 1 that through his own fault and negligence on plaintiff’s part, and on account of such misunderstanding an explosion occurred, and plaintiff was injured, then the plaintiff can not recover in this action and the verdict should be not guilty.”

This instruction, as asked, contained the law, and the proposition contained in it is covered by no other instruction given in the case.

As modified by the court, it entirely left out the proposition which the defendant sought to have submitted to the juiy-

If the defendant’s foreman, without fault or negligence, gave to the plaintiff proper directions, and the plaintiff, innocently and without negligence, misunderstood them, he could not recover.

There was a phase of the evidence on which the instruction was properly based and the substitute entirely ignores such phase and directs the attention of the jury to the fault or negligence of the plaintiff.

Where an instruction which is in conformity with law is asked, based on the evidence, and presenting a view of the case that may be controlling, and which is not covered by any other instruction, a refusal to give it will cause a reversal of the case. Bennett v. Connelly, 103 Ill. 50 ; State v. Wilson, 2 Scam. 225 ; Cohen v. Schick, 6 Bradwell, 280 ; C., B. & Q. R. R. Co. v. Warner, 108 Ill. 538.

The defendant also asked the court to give the following instructions:

“ If the jury believe from the evidence that the plaintiff knew that the use of a drill in clearing out a missed hole was dangerous, and that he used a drill in clearing out the hole in question, when he knew, or by the exercise of ordinary care and diligence might have known, that it Avas a missed hole, then the plaintiff can not recover, and the verdict should be not guilty.”

But the court modified the same and gave it as modified as follows:

Defendant’s instructions:

“If the jury believe from the evidence that the plaintiff was directed by Albright to clear out a missed hole, and he knew that the use of a drill in clearing out a missed hole was dangerous, and that he voluntarily used a drill in clearing out the hole in question, when he knew it was dangerous, and he could, by the exercise of ordinary care and ..diligence, have avoided the danger, and he was injured in consequence of his own carelessness and negligence, and not through the carelessness and negligence of the defendant, then the plaintiff can not re cover, and the verdict should be not guilty.”

The design of this instruction as asked, was to direct the jury to the inquiry, whether the plaintiff knew there was a missed hole or iy the exercise of ordinary care might have hnown it. As modified the inquiry is directed to whether he had actual knowledge of the missed hole, and whether, knowing it was dangerous, he could by ordinary care have avoided the danger.

In the one case the ordinary care is required in avoiding the danger, when plaintiff knew it, in the other the ordinary care is to be exercised in discovering that there was a missed hole, and therefore, danger.

The instruction, as asked, was proper, and the defendant had the right to have it given without change. C., B. & Q. R. R. v. Warner, supra.

A large number of instructions were asked by the defendant which were given by the court without very material modification, except that the court added, in substance, to each one, the proposition contained in the following words: “ And he was injured in consequence of his own carelessness and negligence, and not through the carelessness and negligence of the defendant, then the plaintiff can not recover, and the verdict should be not guilty.”

We do not deem it necessary to examine, seriatim, all the instructions thus modified, and determine whether they were proper as asked. Whether, as asked, they were good or not, the modification of them by tire proposition above set out, was erroneous.

The effect of it was to direct that the jury must find, besides the facts supposed in the instruction, the further fact that the plaintiff was injured by his own negligence and not by the negligence of the defendant, in order to defeat a recovery.

The proposition in such form is not true. If he was injured by his own negligence, he could not recover, even though the negligence of the defendant concurred with his own and contributed to his injury. He might be injured by the defendant’s negligence, and yet if he was not in the exercise of ordinary care himself, he could not recover. Abend v. T. H. & I. R. R. Co., 111 Ill. 203.

The instructions all, supposed certain facts and sought to have the court tell the jury, if they found such facts, plaintiff could not recover; but the court added the proposition, as above set out, directing the attention of the jury to negligence generally, and not to the negligence arising from the facts supposed in the instructions. If the court did not feel at liberty to take the question from the jury, as to whether the facts supposed in the particular instruction constituted negligence per se, the instruction could have been modified so as to leave the question as to whether such facts constituted negligence to the jury; but the modification above set forth did not accomplish that purpose, if such was the intention of the court in making it. The modification was misleading and confusing, and tacked on, as it was, to several of defendant’s instructions, its reiteration made it still more likely to produce mischievous results.

In this case defendant’s counsel submitted thirty-five skillfully drawn instructions to be given to the jury.

In the hurry of a nisiprius trial, it is very difficult for a court to always attain absolute correctness of verbal statement, and in all cases such accuracy may not be essential; but the well established rule is, that when there is a sharp conflict of evidence on a material issue in the case, the instruction should be accurate, clear and perspicuous, and when, in such a case, a reviewing court can see that the jury may have been influenced by improper or inaccurate instructions, the case must be sent back for new trial. Volk v. Roche, 70 Ill. 297; Cushman v. Cogswell, 86 Ill. 62 ; Wabash Ry. Co. v. Henks, 91 Ill. 406; Mendota v. Fay, 1 Bradwell, 418 ; Toledo, W. & W. Ry. Co. v. Moore, 77 Ill. 217; C., B. & Q. R. R. Co. v. Warner, 108 Ill. 564.

For the errors indicated, the case will he reversed and remanded.

Beversed and remanded.