text:
    William F. Barker, Appellee, v. Chicago, Peoria & St. Louis Railway Company, Appellant.
    1. Passengee and cabbies—when doctrine res ipsa loquitur applies. When' a passenger is injured by a collision, proof of the relation of passenger and carrier, of the collision and injury, if no contributory negligence upon the part of the passenger appear, makes a prima facie case for the resulting damages and costs upon the carrier; the onus of proving that the injury resulted from inevitable accident or some cause against which human prudence and foresight could not have provided, is on the carrier.
    2. Passenger and cabbies—status of United States postal employe. A United States postal employe while engaged in the performance of his duties upon a railway train is a passenger entitled to all rights as such as against the carrier.
    3. Verdicts—when not excessive. Held, that a verdict for $6,000 reduced by remittitur to $3,000 rendered in an action on the case for personal. injuries was not so excessive as to warrant a reversal of the judgment, it appearing that the plaintiff at the time of the injury was about 44 years of age, that he had previously been in good health and had been in the government employ for about 16 years; that he received cuts and bruises about the face, head, leg and back; that five of his ribs were fractured, two of them being so sunk as to create a deep depression which yet existed; that he remained in bed at the hospital ten days, and at his home 50 days; that he suffered great pain, lost much sleep and that he had not at the time of the trial recovered from the shock to his nervous system; that his hearing was seriously and permanently impaired, his capacity for breathing weakened and a pressure caused on his heart and lungs so as to render him more susceptible to lung trouble.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Wilson, Warren & Child, for appellant.
    Albert Salzenstein and John L. King, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

In an action for the recovery of damages for personal injuries alleged to have been sustained by him through the negligence of the appellant company, appellee recovered a judgment for $3,000, to reverse which this appeal is prosecuted.

The declaration charged that on December 21, 1906, defendant operated a train for the conveyance of goods, passengers and mail; that it had certain switch connections in the city of Springfield from which loaded cars were run from the Illinois Collieries Company mine on to its main track; that the plaintiff was on said day a postal clerk in the employment of the government, and in the discharge of his duties in one of the mail cars of the defendant; that while in the exercise of due care for his own safety the defendant so negligently guarded its main track and improperly managed its said train that hy reason thereof two loaded coal cars suddenly ran uncontrolled from the mine switch track on to the main track of the defendant and collided with its said train, thereby causing injuries to the plaintiff.

It was stipulated by the parties upon the trial that at the time the plaintiff was injured he was in a railway postal car in the train of the defendant in the discharge of his duties as a railway mail clerk pursuant to a contract between the United States government and the defendant for the carriage of mails between Peoria and Springfield; that such contract consisted of an advertisement for bids by the government, the bid made by the defendant which was made subject to all the statutes and postal regulations of the United States concerning railway mail service, and an acceptance of said bid by the government. It was further stipulated that each and every postal regulation and statute of the government concerning the transportation of mails by railways constitute the terms and conditions of said contract; that all of the foregoing facts should be considered as proven at the trial of the case, and that either party might refer to and rely upon any of said facts, postal regulations and statutes as fully as though the same were copied at length in the record.

The evidence tends to disclose the following facts: At the request of a former owner of the mine a predecessor of the defendant had constructed upon the land of the mining company a switch track under the tipple of the mine and connected the same at both ends with the main track of the railway; that the intersection of this switch with the main track was a derailing device to prevent cars running from the switch of the Mining Company on to the main track of the railway, which device was under the exclusive control of the defendant, and had at the time no lock upon it and could be readily opened or closed. It had been the practice of the defendant to set empty cars on to the south end of the switch track where the employes of the mining company took charge of the same, and moved them to the loading place and when loaded, to the north end of the switch. When loaded cars were billed out, the defendant’s engine entered the north end of the switch and took the cars for shipment. From the tipple of the mine to the north end of the switch there was a slight decline in the grade which enabled the mining company to drop the cars from the tipple to the north end of the switch by gravity.

On December 20, 1906, about 10 o’clock at night, the employes of the defendant removed all loaded cars from the north end of the switch except one, for which it had no billing, leaving the derail open. Upon each morning it was the duty of a certain crew of the defendant to proceed north from Springfield and take from the various mine switches such cars as had been billed by the mine for transportation. On the morning of December 21st this switching crew proceeding north for that purpose, passed the north end of the mine switch about 7 o’clock, at which time the derail in the switch connection was still open. Some three hours thereafter the employes of the mining company started to drop two loaded coal cars down to the north end of the switch and discovered that one of the cars had a defective brake, whereupon they attached to it for the purpose of controlling it, another loaded car and started the two cars down the decline. The employe who was riding them then endeavored to slacken the speed by using the brake on the second car. While tightening the brake something suddenly gave way in the braking apparatus, and he lost control of both cars. He and a fellow employe immediately jumped from the cars and endeavored to stop them by throwing chunks of coal and wood in front of them. This proved ineffectual and both cars, gaining in speed, continued down the switch track through the derailing device which was closed, out on to the main track of the railway where they collided with the approaching train. As the result of the collision one end of the mail car in which the plaintiff was employed was torn off, and plaintiff was thrown down and injured.

The evidence fails to disclose how the derailing device came to be closed at the time.

Inasmuch as such device the position of which was the proximate cause of the accident, was within the exclusive control of the appellant company, it is obvious that if, under the undisputed facts, appellee can properly be held under the law to have been a passenger, the rule res ipsa loquitur is applicable, and the burden of proof rests upon the appellant to show that the collision was not the result of any failure to exercise the degree of care owing by it to its passengers. When a. passenger is injured by a collision, proof of the relation of passenger and carrier, of the collision and injury, if no contributory negligence on the part of the passenger appears, makes a prima facie case for the resulting damages and costs upon the common carrier. The onus of proving that the injury resulted from inevitable accident or some cause against which human prudence and foresight could not have provided, is on thé carrier. Elgin, A. & S. T. Co. v. Wilson, 217 Ill. 47, and cases cited.

The printed argument of counsel for appellant is largely devoted to the proposition that the relation of passenger and carrier did not exist between the parties. Although the Supreme Court of Illinois has never directly decided whether or not a United States postal employe, while engaged in the performance of his duties upon a railway train is a passenger and entitled to all rights as such as against the carrier, the question has been directly passed upon and the affirmative held by the Appellate Court of the first district of this state, in Wabash R. Co. v. Jellison, 124 Ill. App. 652. The precise question is there presented and fully discussed. While the conclusions there reached are not as a matter of law binding upon this court, we believe the same to be amply supported by the decision of the Federal Courts and those of sister states cited and discussed in the opinion and are disposed to follow the same. The cases of Blank v. The I. C. R. R. Co., 182 Ill. 332, and C., R. I. & P. Ry. Co. v. Hamler, 215 Ill. 525, are not at variance with the rule laid down. In both cases contracts expressly exempting the carrier were involved.

Appellee being a passenger, under the rule res ipsa loquitur the burden was cast upon appellant to prove that it had exercised the highest degree of care consistent with the practical operation of its road to secure bis safety. C. C. Ry. Co. v. Shaw, 220 Ill. 532. This it manifestly failed to do; on the contrary the failure to guard the main track by loading or guarding the derailing device was clearly shown and the liability of appellant for the injuries received by appellee conclusively established.

It is urged that the damages are excessive. The verdict returned by the jury assessed the damages at $6,000. Appellee thereupon entered a remittitur and judgment was rendered for $3,000. We are not satisfied after a careful consideration of the evidence that the amount awarded is so excessive as to warrant a reversal of the judgment. The testimony of appellee and three physicians tends to show that at the time, he was injured he was about 44 years of age; that he had previously been in perfect health and had been in the government employ for sixteen years; that he received cuts and bruises about the face, head, leg and back; that five of his ribs were fractured, two of them being so sunk as to create a deep depression which yet existed; that he remained in bed at the hospital ten days, and at his home fifty days; that he suffered great pain, lost much sleep and that he had not yet recovered from the shock to his nervous system; that his hearing was seriously and permanently impaired, his capacity for breathing weakened and a pressure caused on his heart and lungs so as to render him more susceptible to lung trouble.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Puterbaugh

license: Public Domain

text:
    David H. Harts et al., Appellants, v. George H. Kimball, Appellee.
    1. Injunctions—what service will not support. Service by publication will not sustain an injunction against a party so served.
    2. Bills to bemove clouds—what not. A cloud is a semblance of a title, either legal or equitable, or a claim to an interest in land appearing in some legal form, but which is in fact unfounded, or. which it would be inequitable to enforce; held, that the contract in question in this case did not come within such definition, and service by publication was not sufficient to confer jurisdiction of the subject-matter thereof.
    3. Bills to bemove clouds—what essential to maintain. A bill to remove a cloud on title can only be maintained where at the time of the filing of the bill the complainant is in possession of the premises or where the same are vacant and unoccupied and the bill must allege such possession and the complainant must prove it.
    Bill in equity. Appeal from the Circuit Court of Logan county; the Hon. T. M. Habéis, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    David H. Harts, Jr., for appellants.
    Blinn & Covey, for appellee; Frank B. Carpenter,. of counsel.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a bill in equity to set aside a contract between the Lincoln Sand and Gravel Company, a corporation, and one George H. Kimball, on the ground of fraud. The bill was filed by David H. Harts and Charles H. Johnson, as shareholders in said Lincoln Sand and Gravel Company, which corporation, together with its officers, and directors, and one George H. Kimball, are made defendants. The contract in question provides for the payment of a royalty by said company to said Kimball upon the output of said company from its gravel pits located on its lands in Broad-well township, Logan county, Hlinois, the consideration expressed being the discovery by Kimball of the deposits of sand and gravel, prior to the organization of said company, upon the lands afterwards purchased and now owned by said company, and the disclosure of said discovery to the persons who thereupon organized said defendant company and became its officers and principal shareholders. The contract was executed on or about June 5, 1905, and was filed for record in the office of the Recorder of Logan county, Hlinois, on February 20,1907. It contained a stipulation by which said Lincoln Sand and Gravel Company undertook to bind itself, and, in case said land should be sold, its grantees and successors, to the payment of the specified royalties.

The bill alleges fraud in the execution of said contract, and prays that the same be set aside, and that the company be enjoined from making payments under the same, and that Kimball be enjoined from bringing suit to enforce the same. The corporation and certain of its officers were personally served with process; all other defendants, including Kimball, were served by publication and mailing according to statute, and the defendant Kimball was also served by the delivery to him at Detroit, Michigan, of a copy of the bill of complaint and a notice of the commencement of suit as provided by statute. Kimball thereupon entered a limited appearance and filed a plea to the jurisdiction of the court, claiming that he was a non-resident of Illinois; that said suit in no manner affected real estate in Logan county; that he had never been served with process and that the court had not jurisdiction of his person.

To this plea complainants replied, denying that the suit did not affect real estate in Logan county, and alleging that the contract sought to be set aside was a cloud upon the title to lands in said county described in the bill of complaint, and further denying that Kimball had not been served with process of the Circuit Court of Logan county, and averring that service had been had upon him at Detroit, Michigan, by the delivery to him of a copy of the bill and a notice of the commencement of suit, according to the statutes of Illinois.

The court upon hearing rendered a decree reciting that it appeared from the face of the bill that the proceeding was not mrem, but sought a personal decree against said Kimball; and finding that the court did not obtain jurisdiction of the person of said Kimball by service of a copy of the bill nor by publication, and decreed that the plea to the jurisdiction be sustained, and that as to him the bill of complaint be held for naught. From this decree the complainants have appealed, insisting that the chancellor erred in sustaining the plea.

It is admitted by complainants in argument that so far as the defendant Kimball is concerned they are not entitled to an injunction upon the service shown by the record. They do contend, however, that in so far as the bill prays for relief from the alleged fraudulent contract as a cloud upon the title to the land of the Sand and Gravel Company, such service is ample to confer upon the court full jurisdiction of the subject-matter, and to furnish sufficient foundation for a decree setting such contract aside; that in this aspect of the case the proceeding is one in rem.

The terms and provisions of the contract, so far as it is necessary to consider them, are as follows:

“The first party (the Sand and Gravel Company), shall pay to second party (Kimball), three cents per cubic yard on the total amount of all merchantable sand or gravel excavated and sold by first party from the certain 318 acre tract of land located in Lincoln county, Illinois, the title of which said tract was acquired from Messrs. Frorer & Harts by E. W. Far-well, and by him deeded to first party in the month of February, 1905, and any other and additional 250 acres adjoining said 318 acres which said first party may hereafter acquire, so long as first party shall continue to excavate and sell sand and gravel from said tracts of land; and, in the event that first party shall sell or assign its interest in said tracts of land or any part thereof to another, first party agrees to obligate its grantee and his or their successors, heirs and assigns to assume and carry out the terms of this agreement in favor of second party.”

The bill does not aver that the contract created a cloud upon the title to the land described in the bill, nor that any cloud existed, nor is it averred nor does it appear that any lien was declared or created by the contract. As we construe the instrument, the same is a mere personal covenant on the part of the company to pay the royalty mentioned, and that in case the land is sold, to bind its grantee and his or their successors to assume and carry out the terms of the contract so long as such grantee or successor shall continue to excavate gravel. A cloud is defined as a semblance of a title, either legal or equitable, or a claim to an interest in land appearing in some legal form, but which in fact is unfounded, or which it would be inequitable to enforce. Allott v. Am. Strawboard Co., 237 Ill. 55.

It seems manifest that the contract can in no way be construed as creating a cloud within the purview of the foregoing definition. Moreover, a bill to remove a cloud from title can only be maintained where, at the time of filing the bill, the complainant is in possession of the premises, or where the same are vacant and unoccupied, and the bill must allege such possession, and the complainant must prove it. Glos v. Kemp, 192 Ill. 72; Glos v. Kenealy, 220 Ill. 540.

The bill avers the possession of the land in question to he in the corporation. Even, therefore, if the contract could be properly held to be a cloud upon the title to the land mentioned therein, the corporation, and it only, could file a bill to remove the same. No such right exists in complainants by reason of their being shareholders in the corporation.

We are of opinion that the decree is proper and the same is affirmed.

Affirmed.


text:
    G. Wilse Tilton, Appellee, v. Fairmount Lodge A. F. & A. M., Appellant.
    ■1. Masters in chancery—effect of failure to object and except to report. If neither party objects or excepts to the report of a master, they are concluded thereby so far as his findings of fact are concerned.
    2. Chancery—when relief upon ground of mutual mistalce not granted. If an agreement is what it was intended to be, equity will not interfere with it, because the parties have mistaken its legal effect and import.
    Bill in equity. Appeal from the Circuit Court of Vermilion county; the Hon.¿James A. Craig, Judge, presiding.
    Heard in this court at, the November term, 1908.
    Reversed.
    Opinion filed May 19, 1909.
    Statement by the Court. In the year 1883 appellee was the owner of a lot in the village of Fairmount upon which there stood a one-story frame building which he was about to repair. The appellant lodge entered into an agreement with appellee whereby a second story was to he constructed upon the building, together with a stairway leading thereto, the cost of the same to be borne by the Lodge, which was to become the owner thereof. The building was thereafter completed and the Lodge paid the actual cost of the additional story and stairway. The question then arose as to what kind of an instrument was necessary to properly protect the interests of the respective parties, and one McAllister, a justice of the peace, was consulted. He advised them that the fee simple title to the second story could only be conveyed to the Lodge through the medium of a ninety-nine year lease. A written instrument in the form of a lease for that term was thereupon prepared and executed, and the Lodge entered into possession and control of the upper story under the same, and thereafter kept the same in repair and insured against fire, until the year 1904, at which time the Lodge, by its officers, for the first time asserted the claim that it was the duty of appellee under the instrument in question as written, to maintain the entire building and keep the same in repair. Upon the refusal of appellee to make certain repairs to the roof and chimney, the same were made and paid for by the Lodge, which then instituted a suit in assumpsit in the Circuit Court, predicated upon the lease, for the recovery of the cost thereof. A demurrer was sustained to the declaration and judgment entered against the plaintiff in bar of the action. Upon an appeal to this court such judgment was reversed and the cause remanded, with directions to the Circuit Court to overrule the demurrer. We there held that a covenant by appellee as lessor to keep the roof and chimneys in repair should be implied from the terms of the lease, which are set out in the opinion then filed. Fairmount Lodge v. Tilton, 122 Ill. App. 636.
    Upon a reinstatement of the cause appellee filed the present bill in equity, praying that the instrument in question be corrected and reformed and the further prosecution of the assumpsit suit perpetually enjoined, averring that the said written instrument failed to contain and set forth the true agreement made between the parties; that the true and real agreement was that appellant was to he the absolute owner of the upper story of said building during the life of the same; that appellee was to be the owner of the lower story and of the real estate, and that under and by virtue of the true agreement entered into between said parties it was the duty of appellant to keep the entire upper story in repair during the life of the building. The bill further recites the institution and prosecution of the assumpsit suit referred to and charges that unless said instrument be reformed and corrected as asked, appellee will recover therein.
    The answer denies that any mistake was made, and avers that the instrument expressed the contract as it was finally entered into between the parties; avers that appellee had full knowledge of its contents and had acted upon the same, and had insisted in said assumpsit suit that said instrument was legal, valid and binding and expressed the contract between the parties with reference to the occupation of the premises, and that he is therefore now estopped by laches and neglect from claiming that any mutual mistake existed with reference to the same.
    The special master to whom the case was referred heard the evidence and reported as his conclusions that the instrument took the precise form which the parties intended; that both parties intended that the fee to the second story should pass, but that both were mistaken as to the legal effect of the instrument executed; that they supposed that the lease in question being for ninety-nine years amounted in law to a deed, and that such mistake being one of law against which equity can afford no relief, the bill should be dismissed. No objections or exceptions were filed to such report. The chancellor upon the hearing disregarded the recommendation of the master and entered a decree granting the relief prayed by the bill.
    Rearick & Meeks, for appellant.
    O. M. Jones and H. M. Steely, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

Inasmuch as neither party objected or excepted to the report of the master, they are concluded thereby so far as his findings of fact are concerned. Imp. Co. v. Whitehead, 128 Ill. 279; Matthews v. Whitehorn, 220 Ill. 36; Jones v. Crary, 234 Ill. 26.

As to his conclusions of law no objections or exceptions were necessary to enable them to question the propriety thereof. Gillett v. T. & T. Co., 230 Ill. 373.

The general rule is that a mistake of law, pure and simple, is not adequate ground for relief. 2 Pomeroy’s Eq. Jur., sec. 842. If an agreement is what it was intended to be, equity will not interefere with it, because the parties have mistaken its legal effect and import. Ibid, sec. 845.

Upon applying the foregoing rule to the facts as found by the special master, by which both parties are concluded, it is apparent that the chancellor erred in not dismissing the bill on the hearing for want of equity. The decree of the Circuit Court is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed.


text:
    C. M. Woods et al., Defendants in Error, v. R. C. Cox, Plaintiff in Error.
    1. Arbitration and award—when special plea had. In an action upon a written submission to arbitration, held that the particular plea interposed was fatally defective which sought to charge such written submission to be under the statute.
    2. Pleading—when special plea had. A special plea is bad if at its commencement it professes to meet the whole declaration, but presents no answer whatever to a part thereof.
    3. Pleading—essentials of special plea. Every plea should be so pleaded as to be capable of trial, and therefore must either traverse the averments of the declaration or set up new matter of fact In avoidance, the existence of which may he tried hy a jury. A plea which consists of *a conclusion of law only, is had.
    Assumpsit. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    W. K. Zendaski, for plaintiff in error.
    Barber & Barber, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

To the declaration of the defendants in error which consisted of the common counts and a special count predicated upon a written submission to arbitration and an award thereunder, plaintiff in error filed the following plea:

“And the defendant, etc., says that the plaintiffs ought not to have their aforesaid action against him, the defendant, because, he says, no cause of action hath accrued to the plaintiffs by reason of the submission to arbitration of the differences between plaintiffs and defendant on June 2, 1908, as averred in said declaration, for the said award gave to plaintiffs no right or cause to sue this defendant, in that the said declaration avers that the submission to arbitrate was a written agreement, which provided that if the award was not observed and performed within thirty days of the making thereof, same might be filed in any court of competent jurisdiction and final judgment entered thereon as on the verdict of a jury, etc., which said written agreement to submit said differences to arbitration was in accord with the statute in such case made and provided, and plaintiffs are restricted therein and thereby to the statutory remedy, as said parties hereto contracted and agreed upon; and this the defendant is ready to verify; wherefore he prays judgment if the plaintiffs ought to have their aforesaid judgment against him, etc.”

The written submission which is set out in haec verba in the declaration contains, among others, the following provisions:

“It is hereby agreed that in ease said award shall not be kept and performed within thirty days of the making thereof, said judgment may be filed in any court of competent jurisdiction and final judgment entered thereon as on the verdict of a jury for the sum specified in said award to be due together with the cost of arbitration and of the court; and execution may issue therefor.”

A demurrer to the plea was sustained and the plaintiff in error elected to abide thereby. A default was entered for want of a plea, whereupon the court heard evidence, assessed the damages in open court and entered judgment for defendants in error for $2,048.58. The only question presented for determination is the sufficiency of the foregoing plea. It will be noted that the plea neither traverses any of the averments of the declaration nor sets up any new matter in avoidance. The only matter of fact alleged in the plea is expressly quoted from the submission as set out in the special count of the declaration. At its commencement the plea professes to answer the whole declaration and then alleges in substance that the submission to arbitration mentioned in the special count of the declaration was a statutory submission and that the award thereon» can be enforced only in the statutory manner. The plea consists entirely of the conclusion of law, that since the submission provides that the successful party may file the award in court and have judgment entered thereon, it is, therefore, a statutory submission and not enforceable by an action of assumpsit.

It is an elementary rule of pleading that every plea should be so pleaded as to be capable of trial, and therefore must either traverse the averments of the declaration or set up new matter of fact in avoidance, the existence of which may be tried by a jury. A plea which consists of a conclusion of law only, is bad. The objection is not one of form, but of substance, and is properly raised by general demurrer. The plea is also bad because at its commencement it professes to meet the whole declaration, but presents no answer whatever to the common counts. A plea must answer all it purports to answer and if there is any count of the declaration which it does not traverse or avoid the plea is obnoxious to general demurrer.

For the foregoing reasons the demurrer to the special plea in question was properly sustained. The judgment of the circuit court is therefore affirmed.

Affirmed.


author: Me. Presiding Justice Puterbaugh

text:
    Sarah Rosater, Appellee, v. Peoria Life Association, Appellant.
    1. Verdict—when not disturbed. Notwithstanding the greater number of witnesses support a particular question of fact contrary to the verdict, the court will not set aside such verdict if it is unable to say that it is manifestly against the weight of the evidence.
    2. Insurance—when estoppel to insist upon forfeiture arises. An insurance company is estopped to insist upon a forfeiture if after the cause of forfeiture accrues, it treats with the insured in such manner as to recognize the policy as still in force; and a clause in an insurance policy that no forfeiture may be waived except by a writing signed by the officer having authority, applies to an express waiver, and not' to a waiver implied by law from a course of conduct which estops the company from insisting upon a forfeiture.
    3. Pleading—when waiver need not be alleged. A waiver which is the equivalent of an estoppel in pais need not be speciaUy pleaded.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Wolfenbarger & May and Dwyer & Dwyer, for appellant.
    F. L. Draper, for appellee.
   Me. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit, by Sarah Bosater, the beneficiary upon a life insurance policy for $500, issued by the Peoria Life Association to Charles E. Bosater. The jury returned a verdict in favor of the plaintiff and assessed her damages at $527.78. Judgment was rendered upon the verdict and the defendant appealed.

The declaration sets out the policy in haec verba, the death of the insured, and avers full compliance by the insured and the beneficiary with all the terms, provisions and conditions of the policy. The chief issue of fact involved in the case was whether a certain premium of two dollars, which was due and payable, according to the terms of the policy, on August 13, 1906, as a condition precedent to maintaining the policy in force, and admitted to have been afterward paid, was paid before or after the death of the insured, which occurred between the hours of one and two o’clock in the afternoon of October 6,1906. The evidence is however in serious conflict as to the time of the payment of the premium in question. The testimony offered by the plaintiff tends to show that the payment was made very shortly before the death occurred, while that offered by the defendant tends to show that it was not made until from two to two and one-half hours thereafter. Notwithstanding a greater number of witnesses supported the contention of the defendant upon this point, we are unable to say that the finding of the jury upon the issue was so manifestly against the evidence as to warrant our disturbing the same.

The assignments of error present the further question whether such acceptance of the over-due premium amounted to a waiver of the conditions of the policy as to forfeiture. To establish such a waiver the plaintiff introduced evidence which warranted the finding that by a uniform course of dealing between the parties, extending over a period of two years, payments that were in arrears from three to forty days or longer had theretofore been accepted by the company without requiring a certificate of health, as provided by the terms and conditions of the policy. It seems to be the well-settled law of this state that an insurance company is estopped to insist upon a forfeiture if, after the cause of forfeiture accrues, it treats with the insured in such manner as to recognize the policy as still in force (Bennett v. Union Central, 203 Ill. 439), and that a clause in an insurance policy providing that no forfeiture shall be waived except by a writing signed by the officer having the authority, applies to an express waiver, and not to a waiver implied by law from a course of conduct which estops the company from insisting upon a forfeiture. (Id.) The receipt of prior delinquent payments without objection, without reinstatement, without ascertaining whether the insured is still in good health, and without any action by the secretary or board of directors exercising an option in regard to his reinstatement as provided by the by-laws of the society, tends to show that the society waived the right to enforce the.forfeiture. Indemnity Society v. Griggs, 118 Ill. App. 577. In this view of the law the rulings of the court upon the evidence and instructions, of which complaint is made, were not prejudicial.

It is insisted by the defendant that inasmuch as the plaintiff failed to allege in her declaration that compliance with the terms of the policy as to prompt payment was waived by the defendant, but on the contrary averred strict compliance therewith, evidence tending to show such waiver was inadmissible. The' doctrine of waiver in this connection, is, in substance and effect, that of an estoppel in pais, which at common law need not, although it might, be pleaded specially. Ins. Co. v. Grunert, 112 Ill. 68; Ins. Co. v. Rogers, 119 Ill. 474; Evans v. Howell, 211 Ill. 85; Dickson v. Biscuit Co., 211 Ill. 468.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    A. R. Orr, Appellee, v. Warner & Frame, Appellants.
    1. Brokers and factors—when entitled to commissions. If a broker substantially complies with his contract he is entitled to his commissions.
    2. Instructions—must not he argumentative. An instruction is properly refused which is argumentative and misleading.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Charles Troup, for appellants.
    M. B. Bailey and S. F. Schecter, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court against appellants and in favor of appellee for the sum of $686.83. The pleadings consist of the common counts and the general issue. The suit is for the recovery of commissions alleged to be due to appellee under a written contract between the parties whereby appellants, who were land agents, appointed appellee their agent and agreed that when he brought purchasers for any of their lands to them at Joliet, South Dakota, or any other place they might direct, and sales were made and the purchase price received by them, they would pay appellee commissions on such sales at the rate of $1.50 per acre. There is evidence tending to show that subsequent to the making of the contract, appellee introduced one Mrs. Somerville to appellants and solicited her to go to North Dakota and buy land of them; that she agreed with him to go, and afterward did so in company with appellants, and that she purchased of them and paid for 457.77 acres of land. Mrs. Somerville testified that her purpose in going to North Dakota was to see the land of appellants which appellee had solicited her to purchase, and that she would not have gone had it not been for the solicitation of appellee, and that when she and appellants started to Joliet, she inquired of them where appellee was, and was told that he “might come along.”

It is insisted by appellants that before appellee could recover commissions under the contract, he must have shown that .he personally accompanied Mrs. Somerville to Joliet. It appears that appellee not only introduced to appellants a purchaser for their land, but that they knew when she went with them to visit the land that she was going at the solicitation of appellee. We are not prepared to hold that under these circumstances the right of appellee to commissions should be defeated solely because of his failure literally to comply with the terms of the contract in this respect. Such construction would be manifestly unreasonable. We think that appellee substantially complied with the terms of the agreement, and thereby became entitled to recover. Nothing remained to be done and the common counts were sufficient to permit a recovery.

The instruction which appellants claim was improperly refused was argumentative and misleading and the ruling of the court thereon was warranted. We find no error in the rulings of the court upon the admissibility of evidence. If appellee introduced the purchaser to appellants and procured her to visit the lands and she afterward purchased, what occurred thereafter in closing the deal was immaterial.

The judgment will be affirmed.

Affirmed.


text:
    School Directors, Defendants in Error, v. James R. Toll et al., Plaintiffs in Error.
    1. Schools—what property subject to control of directors. Held, under the evidence, that the property in question in this case was within the control of the school directors and without their consent it was not lawful for the religious organization to use the same.
    2. Injunctions—when right to restrain threatened trespasses. The jurisdiction of courts of equity to restrain the commission of trespasses is not confined to cases where the injury is irreparable, because the defendant is insolvent, or because the injury goes to the destruction of the estate or inheritance, and a bill to enjoin repeated trespasses which would require numerous and successive suits in an action at law if the complainant were relegated to that remedy, and where the amount recoverable would be disproportionate to the vexation and expense attending the litigation, may be maintained, the remedy at law in such cases being inadequate.
    Bill in chancery. Error to the Circuit Court of Calhoun county; the Hon. Albert Akebs, Judge, presiding,
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Charles Temple, for plaintiffs in error.
    Frank A. Whiteside and T. J. Selby, for defendants in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a hill in chancery filed hy defendants in error, the Directors of School District No. 10, Township 8, etc., Calhoun county, Illinois, by which they seek to restrain plaintiffs in error from entering a certain school building, alleged to belong to said School District No. 10, for the purpose of holding religious or other meetings therein without the consent of a majority of the Board of Directors of said district first had, and from doing any damage to said building or the furniture therein or commiting any acts of trespass to the property of said school district.

A temporary injunction was issued in accordance with the prayer of the bill. A demurrer to the bill was overruled and a motion to dissolve the injunction denied. Upon a hearing upon the report of the master in chancery, the chancellor decreed that the temporary injunction be made permanent, whereupon the defendants sued out this writ of error.

The bill avers in substance that said school district was legally organized in accordance with the statute and had been in existence for many years last past, and that the defendants were residents of said district; that the inhabitants of said district, more than forty years prior to the filing of the bill, had by voluntary contributions erected a certain building for public school purposes upon a certain described tract of land of about an acre in extent, within said district; that said building was thereafter under the control and possession of the directors of said school district for many years, during which time it was used for public school purposes and maintained by public taxation, until destroyed by fire; that immediately thereafter the inhabitants of said School District authorized the directors thereof to levy and collect a tax on the property of said School District to build a new school house on said old site; that pursuant to such authority said directors did levy taxes, and out of the proceeds thereof erected a school building upon said old site and took possession and control of, and thereafter used and maintained the same for school purposes until the present time, a period of over thirty years, and that their right so to do had never been questioned; that said directors had permitted the use of said school house for religious meetings to accommodate the defendants and other inhabitants of said district, but that such meetings had resulted in damage to said building and the furniture therein, and that thereupon they, the said directors, had forbidden the further use of the same for religious meetings; that thereafter at divers times the defendants had wilfully and forcibly broken into said school house, and without the consent of the directors continued to hold meetings therein. The bill further avers that the defendants threatened to continue said trespasses, claiming a joint ownership in said building and the right to use the same for their meetings, and that said directors believed and feared that said defendants would carry such threats into execution unless restrained by order of court; that suits at law or prosecutions against said defendants would prove unavailing to restrain the commission of said trespasses and if instituted would be so numerous as to involve the complainants in a multiplicity of suits and cause excessive expense and strife and contention among a portion of the residents and taxpayers of said district; that said defendants were insolvent, and that irreparable injury would be sustained by the complainants unless the defendants were restrained and enjoined from committing the threatened further trespasses against said property.

The evidence discloses that in the year 1860, one James Poor, the owner of the land upon which the school house mentioned in the bill was located, conveyed the same to Samuel Merida and four others, describing them as “Trustees of Bethel Church,” and to their successors in office, the deed of conveyance reciting that the property was to be used for school purposes. Before any use was thereafter made of the land, the Bethel Church organization disbanded and a number of its members, including four of the five grantees named in the deed from Poor, joined another organization known as the Church of Christ. The latter body in the year 1862 erected a building upon the premises in question which was used for both church and school purposes until the year 1874, when the same was destroyed by fire. During the following year the school directors submitted to the voters of the district the question of the erection of a new school house and the selection of a site therefor. An election was held at which it was unanimously determined that a new building should be erected upon the site of the former one. No claim of right or title to the land was at that time asserted by the members of the Church of Christ or any or either of them. The present building was thereupon erected by the then board of school directors, and the cost thereof, as well as its subsequent maintenance, paid out of money raised by taxation for school purposes. The new building was thereafter used for church and school purposes by the Church of Christ and the directors, jointly, until the year 1892, when the then school directors refused to permit the church organization to further use the building. A suit was then instituted by the trustees of the church to recover possession of the building, but such suit was thereafter dismissed and the building continued to be used and occupied as formerly until September 1904, when the present bill was filed.

The evidence further shows that during the interim plaintiffs in error and others on several occasions forcibly entered the school building and held religious meetings therein, and that they had threatened to continue to do so.

Under the foregoing circumstances it is obvious that the building in controversy is school property within the meaning of the statute which provides that the Board of School Directors “shall have the control and supervision of all school houses in their district and may grant the temporary use of school houses, when not occupied by schools, for religious meetings and Sunday schools, for evening schools and literary societies, and for such other meetings as the directors may deem proper.” Rev. Stat. 1909, p. 2013.

It is equally clear that neither plaintiffs in error, the religious organization represented by them, nor others, could have a lawful right to use the school house in question without the permission of defendants in error.

Plaintiffs in error insist that inasmuch as the parties have had joint occupancy of the premises for many years, each recognizing the other as joint owner, one cannot deprive the other of the right of occupancy without first having the respective rights of the parties determined in a court of law.

The evidence fails to show any vested right of plaintiffs in error or other members of the church organization to occupy or use the new school house. Such rights as they enjoyed were permissive only and revocable at any time at the discretion of the Board of School Directors. There was therefore no disputed right of title or occupancy of the school house for the determination of a court of law.

It is further insisted that before the present bill can be maintained, it must be alleged and proved that irreparable injury would result to the complainants if the relief is not granted; that the injunction is absolutely necessary to avoid a multiplicity of suits; that the defendants are insolvent, and that the complainants have no adequate remedy at law. It is contended that the evidence fails to establish neither of the foregoing essential elements. In the recent case of Cragg v. Levinson, 238 Ill. 69, it is held that the jurisdiction of courts of equity to restrain the commission of trespasses is not confined to cases where the injury is irreparable, because the defendant is insolvent, or because the injury goes to the destruction of the estate or inheritance, and that a bill to enjoin repeated trespasses which would require numerous and successive suits in an action at law if the complainant were relegated to that remedy, and where the amount recoverable would be disproportionate to the vexation and expense attending the litigation, may be maintained, the remedy at law in such cases being inadequate.

It is obvious that if plaintiffs in error were relegated to the action of trespass numerous suits against the various trespassers would probably be necessary for the protection of their rights in the premises, and that the present case falls within the exceptions to the general rule thus declared.

We are of opinion that the chancellor had jurisdiction to grant the relief prayed for and that the same was warranted by the evidence.

The decree will be accordingly affirmed.

Affirmed.


text:
    Grace Self, Appellee, v. John Bull, Appellant.
    1. Parties—when complaint of joinder comes too late. A party • who has been joined in an action at law as party defendant thereto and who has pleaded to the merits of the action and has been benefited rather than otherwise by such joinder, cannot complain thereof.
    2. Pleading—dilatory plea comes too late. A dilatory plea comes too late after pleas in bar have been interposed.
    3. Landlord and tenant—what not defense to distress. A plea alleging abandonment of a lien is in abatement of the action and comes too late after pleas in bar have been filed.
    Distress for rent. Appeal from the County Court of Morgan county; the Hon. Francis E. Baldwin, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    William N. Hairgrove, for appellant; R. W. Mills, of counsel.
    Bellatti & Barnes, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by John Bull from a judgment rendered in favor of the plaintiff, Grace Self, in a proceeding of distress for rent. The controversy arises out of the following facts: The plaintiff, by a written lease dated November 28, 1906, rented to James McTee 240 acres of land for the crop season ending February 29, 1908. The rent for said term yras $700, and was evidenced by a promissory note maturing January 15, 1908. McTee failed to pay the note when due, whereupon the plaintiff, on January 21,1908, delivered a distress warrant to one Lombard, who executed the same by levying upon, as the property of McTee, a lot of corn on the premises described in the lease, and also upon certain other corn then in crib on the farm of the defendant Bull, which Bull claimed to own. He placed the former corn in the custody of one Wiggs, and the latter in the custody of Bull. Two days thereafter McTee filed a voluntary petition in bankruptcy, and was duly declared a bankrupt. In his schedule of assets he included the corn upon the leased land which had been levied upon, but not that upon Bull’s land.

A trustee in bankruptcy of McTee’s estate was appointed and he took charge of the scheduled property. The plaintiff then filed in the bankruptcy court a claim for the rent due her, which was allowed and made a preferred lien upon the crops scheduled, which were the only scheduled assets of the estate, above exemptions. Such crops were afterward sold by the trustee, under order of the bankruptcy court for $429.05, and the proceeds paid to the plaintiff. The distress warrant, together with the officer’s return thereon, was then filed in the county court and summons issued against both McTee and Bull. To the distress warrant McTee filed the general issue and two special pleas. Demurrers were sustained to the special pleas, and a stipulation entered into that no personal judgment should be taken against McTee. The defendant Bull filed a number of special pleas, of which it is necessary to notice the following only.

The first special plea was in effect that the relation of landlord and tenant did not exist nor never had existed between Bull and the plaintiff; that no distress warrant was issued against him, and that he was not indebted to the plaintiff. The amended third additional plea alleged that after the supposed levy of the distress warrant, the plaintiff abandoned said levy and gave np possession under the same and thereby waived any lien thereunder, and that the defendant Bull being then in possession of the crop located on his premises, fed the same to his cattle, and that no part of said crop was then in his possession. Demurrers were sustained to both pleas.

At the close of the evidence the court directed the jury to return a verdict for the plaintiff finding that there was due her as rent the sum of $700, which was accordingly done. The court then rendered judgment on the verdict for the plaintiff and against the corn in the possession of Bull, and ordered that special execution issue, but that only a sufficient amount of the corn be sold to pay the amount remaining due to plaintiff, after crediting whatever amount might thereafter be received by her from the trustee in bankruptcy of McTee upon the preferred claim for rent, and for costs of levy of the distress warrant. The evidence shows that afterward plaintiff received from said trustee in bankruptcy the sum of $469.95, which by order of court was credited upon the judgment, leaving due $230.05 and costs of suit.

It is first urged by the appellant that he was improperly joined as a defendant to the proceeding; that inasmuch as no privity of contract existed between him and the plaintiff, the demurrer to his first special plea should have been overruled. It is unnecessary to determine whether or not the statute warranted the issuance of summons against appellant; having pleaded to the merits by setting up ownership of the corn in controversy he is not now in a position to raise that question. Moreover, no personal judgment or liability was claimed or established against him. The only effect of summoning him was to give him notice of the plaintiff’s claim to the corn, and he was benefited rather than injured thereby. This is also true as to the objection that the judgment rendered should have been personal instead of in rem.

Appellant further complains of the action of the court in sustaining a demurrer to his third amended additional plea. The plea was, in effect, one in abatement, and if true was no defense to the merits of the action. The levy of the distress warrant did not create the lien but was simply a method of enforcing the same. It could have been abandoned and, under the statute, another distress warrant issued within the period of six months after the expiration of the term of the lease. The plea being dilatory was not properly pleaded after pleas in bar had been filed. The allegation of the plea that the corn had after the alleged abandonment been fed to cattle and was not in existence at the time of the rendition of the judgment, cannot be urged or taken advantage of by appellant, for the reason that he was appointed custodian and accepted the custody thereof and is estopped to deny that the same was by reason of his own act no longer in his possession.

The judgment is clearly right upon the merits and there being no prejudicial error in the record it is affirmed.

Affirmed.


text:
    Harry Hunt, for use of Sam Edwards et al., Appellee, A. F. Frauks, Appellant.

      Vebdicts—when not disturbed. A verdict will not be set aside on review as against the weight oí the evidence unless clearly and manifestly so.
    Garnishment. Appeal from the County Court of Greene county; the Hon. Thomas Hbkshaw, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    H. H. Montgomery and J. C. Bowman, for appellant.
    Rainey & Jones, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

The appellant was summoned as garnishee in two attachment suits brought by Edwards and Williams & Son, respectively, against one Hunt. After the causes had been consolidated, a trial by jury was had, which resulted in a judgment against appellant, for the use of appellees, in the sum of $15. The only error assigned is that the verdict is contrary to the evidence. The sole controverted issue of fact in the case was whether or not appellant was entitled to off-set against the demand of Hunt, the reasonable rental value of a room and light which he claimed to have furnished Hunt. The evidence relative thereto was conflicting, and we are unable to say that the verdict of the jury was manifestly against the evidence.

The judgment is therefore affirmed.

'Affirmed.


text:
    S. M. Grubbs et al., Appellants, v. P. H. Kelly, Appellee.
    1. Contracts—liability .upon subscriptions to induce location of industrial enterprise. A subscription contract entered into with trustees for the purpose of inducing the location of an industrial enterprise in a particular city when acted upon is valid and enforceable by such trustees.
    2. Contracts—when performance not essential to recovery. If a contract provide for payment in installments at definite times before performance, the performance of the contract need not be shown in order to recover such installments.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1909.
    Lane & Cooper, for appellants.

      Jett & Kinder, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action by appellants against appellee, for the recovery of the amount alleged to have been due under the terms of a certain instrument in writing hereinafter set forth.

The suit was instituted before a justice of the peace from whose judgment an appeal was taken to the Circuit Court, when the cause was tried by the court without a jury and judgment rendered against the plaintiffs in bar of action and for costs. The present appeal was then perfected by the plaintiff.

The evidence discloses the following facts, which are practically undisputed: In March 1903, a corporation known as the Litchfield & St. Louis Bailway Company was organized for the purpose of constructing a belt railway around the southeastern portion of the city of Litchfield for the purpose of connecting four existing trunk lines, thus affording desirable locations for sites for manufactories which it was hoped might be induced to locate in said city. Before anything was done in the matter of constructing such belt line a proposition was received from the American Badiator Company to locate one of its plants in Litchfield. Negotiations were thereupon entered into between said company and a committee of twenty-one citizens appointed for that purpose by the Board of Trade, which resulted in a contract between the company and the committee whereby the company in consideration that a site therefor was furnished by the city and certain concessions and privileges to be granted agreed to erect and maintain one of its factories adjacent to the city.

At a public meeting of citizens, appellants were appointed as a committee to solicit subscriptions toward a fund to be used in securing a site for the proposed factory. Blank notes were prepared by the committee for this purpose and subscriptions obtained to the extent of $13,500. That executed by appellee which was identical in form with the others, except as to date and amount, is in the words and figures following, to-wit:

“Litchfield, III., May 27, 1903.
For and in consideration that the Litchfield & St. Louis Railway Co. shall build a belt railroad connecting the C C C & St L Railroad with the other trunk lines entering this city and shall cause to be erected by the American Radiator Company, on the line of said belt railroad, one of said American Radiator Company’s manufacturing plants costing not less than $100,000 and employing at least two hundred men, the undersigned agree to pay to the order of S. M. Grubbs, J. A. Pappmeier and J. R. Paisley, as trustees, the sum of Fifty Dollars at Litchfield Bank & Trust Co. in the City of Litchfield, said sum to be due and payable in the following manner, to-wit: Twenty-five per cent of said amount to be paid when the contract with the American Radiator Company covering the location and erection of said manufacturing plant is signed and accepted, and deed for site placed in escrow, twenty-five per cent when work is commenced on said manufacturing plant, twenty-five per cent when said plant begins operations, and twenty-five per cent when said Belt Line Railway is completed, and if the first payment of twenty-five per cent shall not become due according to the terms of this note, by the first day of January, 1904, then this instrument to be null and void. If this note be not paid when due, I agree to pay a reasonable attorney’s fee for the collection of the same.
P. M. Kelly.”

The evidence further shows that the contract between the citizens committee and the Radiator Company for the location of the manufacturing plant was executed and accepted; that the deed for the site was placed in escrow with a trust company on December 22, 1903; that the plant was erected at a cost of over $100,000, and began operating in February, 1905, and that since October, 1905, there were from 280' to 320 men employed therein.

It further appears that at the time of the trial but $6,000 had been paid upon the subscription referred to; that appellee had paid nothing upon the note in suit; that appellants and others had endorsed the notes of the Railway Company to the extent of $5,300, the proceeds of which were used to purchase the site for the radiator plant; that other obligations had been incurred in carrying out the contract with the Radiator Company; that but about seventy-five per cent of the amount subscribed was collectable; that the amount already collected was insufficient to pay the liabilities incurred, and that an additional sum of at least $5,000 would be necessary for that purpose. It still further appears that the obligations in question were incurred by appellants and others upon the strength of the subscriptions evidenced by the subscription notes in question.

That a note or contract of the character in question is valid and binding, and that when the subscription is made payable to a certain person or persons as trustees, and the terms of the subscription have been complied with, such trustee or trustees can recover thereon for the benefit of any one who has acted on the faith of the subscription, has long been well settled. Robertson v. March, 3 Scam. 198; Miller v. Ballard, 46 Ill. 377.

The real consideration upon which such a subscription stands is that money has been expended, material furnished or labor bestowed on the faith of the promise, and not any special benefit derived or anticipated by the promisor from the object for which the subscription is made (Pratt v. Trustees, 93 Ill. 475; Richelieu Hotel Co. v. Mil. Encamp. Co., 140 Ill. 248), and the subscription will be upheld upon the ground of estoppel alone, regardless of the consideration in the original undertaking. Beatty v. West. Coll., 177 Ill. 280.

It was essential, however, that before a recovery could be had the conditions upon which the subscription was made must have been substantially performed, and. that the same be due and payable according to its terms. The position of appellee is that nothing would become due upon the note unless the Railway Company procured the location of the plant, and not then until the contemplated railway had been built or an honest effort made in that direction. If this be the correct construction of the contract it is manifest that no part of the subscription would become due and collectable until all the requirements or conditions had been literally complied with. The provision that the subscription should be paid in installments would thus be rendered useless and ineffective.

Applying the rule that a contract should, if possible, be so construed as to give all the words used therein force and effect, it seems clear that the contract was severable and that the installments sought to be recovered became due and payable prior to the commencement of the present suit. Had appellee desired to have his entire subscription hinge upon the completion of both the plant and the railroad, he should have so stipulated.

We are further of the opinion that it is immaterial under the circumstances, whether the location of the radiator plant was procured by the railway company or by others. The evident purpose and intention of appellee was to aid in procuring the plant to be located in Litchfield. His wish was gratified, and as has been said, the evidence shows that the necessary cost and expense attending such location, were paid or incurred upon the faith of his and other subscriptions. The conditions upon which the several installments in suit were to become due, were substantially performed, and appellants had a right to enforce payment of the same without awaiting the performance of the final condition.

It is not argued by appellee that if entitled to recover, interest upon the past due installments, and a reasonable attorney’s fee, should not properly be included in the judgment.

The propositions of law submitted by appellants and refused, correctly stated the law applicable to the facts disclosed by the evidence, and the court erred in refusing to hold the same.

The judgment must, therefore, be reversed and the cause remanded.

Reversed and remanded.


text:
    Florimond Legru, Appellee, v. Penwell Coal Mining Company, Appellant.
    1. Trial—when conduct of counsel ground for reversal. A new trial should be granted if prejudice results from the attempt of counsel to bring to the knowledge of the jury matters foreign to the issues involved with intent improperly to influence them.
    2. Evidence—when upon question of negligence incompetent. It is error to permit witnesses to testify whether a particular place was safe or not.
    3. Mines and Miners Act—what duty not imposed upon mine manager. The Mines and Miners Act does not impose a duty upon the mine’ manager to mark dangerous places and to display danger signals with respect thereto.
    Action in case for personal injuries. Appeal from the Circuit Court of Christian county; the Hon. Treman E. Ames, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded..
    Opinion filed May 19, 1909.
    J. C. & W. B. McBride, for appellant.
    Hogan & Wallace, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

The plaintiff recovered judgment against the defendant in the sum of $1,200, for injuries received by bim through the alleged wilful failure of the defendant to comply with certain provisions of the Mines and Miners Act. To reverse such judgment this appeal is prosecuted by the defendant.

The second original count of the declaration charges in substance that on December 10, 1906, plaintiff was at work in room No. 6 off of the fourth entry of defendant’s mine; that it was the duty of the mine examiner under section 18 of the Miners act to inspect the place where plaintiff was expected or required to work and observe any dangerous conditions therein, and to inscribe on the walls with chalk the month and day of his visit, as required by law; that the conditions in said room, particularly the neck thereof, were unsafe, by reason of improper and unsafe construction thereof, by reason of the roof and walls not being properly or sufficiently supported by props or other means, through its mine examiner failing to perform such duty; that it was also the duty of the defendant under said statute to allow no one to enter said room or place and work except under the directions of the mine manager until the conditions should be made safe; that the defendant permitted the plaintiff to enter said room for work, when the conditions were unsafe, and that while the plaintiff was engaged in his regular duties in said room in the neck thereof, a large quantity of slate and coal fell from the roof of the neck thereof upon the plaintiff, and injured him.

The first additional count alleges that under section 16 of said act it .was the duty of the mine manager to examine the various working places in the mine as often as practicable and see that all dangerous places above and below, in and about said mine, were properly marked and danger signals displayed wherever required; that said mine manager wilfully failed to properly mark said dangerous places in the neck of the room and to display danger signals with reference thereto, whereby the plaintiff was injured.

The evidence discloses that on the morning of November 10, 1906, the plaintiff and his father were at work in a room of the defendant’s mine, taking out coal at different points along the pillar. When they had finished up at one place and were about to move up to another point of the pillar, nearer the entry, it became necessary to move the track and lay it to connect with the new place. Track-layers thereupon proceeded to remove the track and relay it. The evidence introduced by the plaintiff tends to show that while they were so engaged he and his father remained idle, but that when the work of relaying the track was completed they went to the entry and procured an empty car and that while his father was pulling and plaintiff was pushing the car into the room, and as they were passing through the neck of the room, a large quantity of coal fell from the side of the neck and injured the plaintiff; that the side of the neck was dangerous, and that plaintiff had so notified the pit boss on two different occasions, and further that at that time there was a squeeze on in said neck. The evidence adduced by the defendant tends to show that while the track men were in the room relaying the track, the plaintiff and his father stopped a car in the neck of the room and proceeded to knock down coal from the east side of the neck and load it into the car; that after they had loaded one car and started to load another, the plaintiff struck the coal in the east rib of the neck with his pick, causing the coal to fall from about four feet up on the side and strike the plaintiff and catch his leg between the coal and the car, breaking both bones of the leg between the knee and ankle.

The evidence was in sharp conflict and the case exceedingly close upon the facts. It was therefore especially important that no error should intervene upon the trial. August Legru, Sr., the father of the plaintiff, testified on cross-examination in answer to questions propounded to him by counsel for the defendant, that he had a conversation with one Kiefer, a bookkeeper employed by the defendant, and had told him how the accident happened, and that he, the witness, signed a written statement shown to him. On re-direct examination the witness further testified that Kiefer got him to sign the paper. The following colloquy then occurred:

“Q. Just tell Kiefer’s words as near as you cant
Objected to; overruled; defendant excepts.
A. There wasn’t much to it. When he come there was no conversation very much; when he come there he told me this was an insurance paper, and then I signed my name to it.
Defendant moves to exclude answer. Overruled; defendant excepts.
Counsel for defendant: Counsel for plaintiff remarked, ‘That is what we were after’; we except to it.
Counsel for-plaintiff: Not in the hearing of the-jury, or addressed to either.
Counsel for defendant: It was spoken in the hearing of the jury.
Counsel for plaintiff: That was a side remark of counsel addressed to his associate, and addressed to his associate only.
Counsel for defendant: That is not correct Mr.
Wallace. Mr. Wallace’s statement is not correct.
Counsel for plaintiff: I will say it is a great deal nearer correct than a remark that you have made.”

Kiefer was afterward called by the defendant and testified as to the conversation in question. On cross-examination counsel for plaintiff asked the witness: “Did you say anything’ to his father about the insurance company?” The question was objected to, and the objection overruled. The witness was then asked: “Well, did the insurance company have anything to do with your visit there?” to which question an objection was sustained.

The views of this court as to the attempts of counsel to bring to the knowledge of the jury matters foreign to the issues involved with intent to improperly influence them are announced in Parlin v. Scott, 137 Ill. App. 454; Emery v. DeHart, 130 Ill. App. 244, and Wullner v. Smith-Lohr Co., 145 Ill. App. 486, and it is unnecessary to repeat them here.

The court over the objection of appellant permitted a number of witnesses to testify whether the neck of the room was safe or not. The admission of this evidence was error. Yarber v. R. Co., 235 Ill. 589; Hart v. Penwell Coal Co., 146 Ill. App. 155; Wullner v. SmithLohr Co., supra.

By the fourth instruction given for the plaintiff, the court erroneously instructed the jury that if they believed from a preponderance of the evidence that the mine manager wilfully violated the provisions of the Mines and Miners Act “by wilfully failing to mark said dangerous places or wilfully failing to display danger signals with reference thereto, where they were required,” then their verdict should be for the plaintiff. No such duty is required of the mine manager by the statute. Parrish v. Coal Co., 143 Ill. App. 118.

For the reasons referred to the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Mrs. Walter L. Jackson, Appellant, v. Mrs. Elmer Craw, Appellee.
    1. Replevin—what essential to recovery. A plaintiff in replevin can only recover upon the strength of her own title and if such title has been denied the burden is upon her to show a general or special property in the goods replevied.
    2. Replevin—who cannot maintain. In the absence of proof that a partner claiming right to possession of the partnership property had an exclusive right thereto, replevin will not lie by one partner against another.
    Replevin. Appeal from the County Court of Vermilion county; the Hon. Isaac A. Love, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Ray F. Barnett and Acton & Acton, for appellant.
    O. M. Jones and W. J. Bookwalter, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in replevin brought by appellant against appellee, before a justice of the peace. Upon appeal to the Circuit Court the cause was tried by the court without a jury. At the close of the plaintiff’s evidence the court, upon motion of the defendant, found the -issues in her favor, entered judgment accordingly, and awarded .a return of the property. The only question involved is whether the evidence adduced by the plaintiff was sufficient to entitle her to a judgment. There is no controversy as to the facts which are substantially the following: Appellant, appellee and eight other women for the purpose of cooperating in the purchase of what are known as Larkin products, and to obtain the premiums offered therewith, entered into the following agreement in writing, to-wit:

“We, the undersigned, associate for the purpose of procuring Larkin products and premiums by the Larkin Club-of-Ten plan.
“We agree that all Larkin products shall be paid for on or before delivery, and that the Larkin premiums, received in whatever name, and to whomsoever delivered, shall be and remain the exclusive property of the Association until each member shall have received a Larkin Premium, or until the member holding the premium shall have paid the current prices for the products and premiums received.
“We agree that Mrs. Walter L. Jackson shall act as secretary of the association, and, in case of any disagreement among members, shall be the general custodian of the property of the Association. All premiums of the Association shall be delivered to him on demand, or he may maintain an action to secure them or their value, in his own name, as trustee.
“The undersigned old customers, if any, agree to and do hereby assign to the said secretary of the Association all title to Certificate Premiums.”

The products referred to consisted of soap, coffee, powder, perfumery and other household supplies. After the organization each member sent to appellant, the secretary, her individual order for such of' the products as she desired, together with the amount of the purchase price of the same, whereupon appellant sent to the company in her own name a general order for the products, together with the money so collected. Upon the receipt of such orders it was the custom of the company to give a premium to be selected from a catalogue by the member who was to receive the same, who was chosen by the members. It had been agreed that appellant was to receive the premium in this instance, and the same, together with the products ordered, was shipped her, she paying the total freight charges. A meeting of the club was then held and the various supplies distributed according to the orders of the respective members. When • the second order was made, appellee, who was to receive the premium, selected a refrigerator, and the products ordered, together with the premium, were accordingly shipped to and received by her. She failed, however, to call a meeting for the distribution of the goods within what appellant and other members considered a reasonable time. Thereupon appellant as secretary of the association demanded possession of all of the products except such as had been ordered by appellee, and afterward brought the present suit to recover possession of the same.

It is not controverted that appellant could only recover upon the strength of her own title and such title having been denied she had the burden of showing a general or special property in the goods. Perkins v. Knisely, 204 Ill. 275. It is contended, however, that by virtue of the provisions of the agreement she had, as secretary of the club, such a special property in the products ordered as to entitle her to possession of the same. We do not so construe the agreement. It expressly provides that the premiums shall be delivered to the secretary and remain the property of the association,'and authorizes the secretary to maintain an action to recover the same. No such provision appears as to the products, which were the articles replevied. Such being the case, the latter were manifestly, as against appellant, the property of the individuals who ordered and paid for them. In any event the association was but a partnership and even if the products in question be held the property of the partnership, in the absence of proof that the partner claiming right to possession of the property had the exclusive right thereto, replevin would not lie by one partner against another. Belcher v. Van Duzen, 37 Ill. 281.

Inasmuch as the evidence fails to show any right in appellant to the possession of the property replevined the action of the court was warranted and the judgment will be affirmed.

Affirmed.


text:
    C. Lane & Co., Appellees, v. Western Union Telegraph Company, Appellant.
    1. Contracts—when may be varied by parol. The rule that parol evidence is not admissible to vary the terms of a written instrument can only be invoked by the parties to the contract or those in privity with them.
    2. Telegraph companies—when failure to deliver telegrams authorises recovery. If a telegraph company fails to deliver a telegram within a reasonable time and a loss prosimately results therefrom, a recovery against such company will he sustained.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 19, 1909.
    Rehearing denied June 30, 1909.
    Evans & Taylor, for appellant; George H. Fearons, W. L. Goss and West, Eckhart & Taylor, of counsel.
    O. M. Jones, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellees for the recovery of damages resulting from the failure of appellant to deliver within a reasonable time a certain telegram sent by appellees to the E. F. Connell Land Company at Hereford, Texas, whereby they lost commissions on a certain land deal. The message in question was delivered to appellant for transmission on January 19, 1907, but was not received by the Land Company until January 24, 1907. To the declaration a plea was interposed admitting the delay and confessing damages to the extent of $1.50, the amount of charges for transmitting and delivering the telegram, but denying any other or further damage.

The plea further avers that the message in the declaration mentioned was the last one of a series transmitted by appellees to the Land Company over the wires of appellant.

“Jan. 3, 1907.
E. F. Connell Land Co.
Hartz know in day or two about trade—see letter.
C. Lane & Co.” “Jan. 10,1907.
E. F. Connell Land Co.
Hartz will take two sections at fifteen or three sections at fourteen. We will take five hundred cash commission. Will f orward contract signed if accepted. Wire answer.
C. Lane & Co.” “Jan. 10,1907.
C. Lane & Co.
Can close deal on three sections at sixteen, nothing loss
E. F. Connell Land Co.” “Jan. 12,1907.
E. F. Connell Land Co.
If we can get Hartz contract three sections at fifteen will you pay us five hundred commission. Wire answer.
C. Lane & Co.” “Jan. 13, 1907.
C. Lane & Co.
Will pay five hundred commission in second lien notes against Minn, land less fifty dollars your part of automobile hire this at fifteen. Answer.
E. F. Connell Land Co.” “Jan. 18,1907.
C. Lane & Co.
If you can guarantee loan of ten thousand dollars on four hundred eighty acres deal is made. Answer ' on or before the twentieth, otherwise deal off.
E. F. Connell Land Co.” “Jan. 19, 1907.
E. F. Connell Land Co.
Deal closed per your telegram. Hartz guarantees ten thousand dollars on four hundred eighty acres. Letter follows.
C. Lane & Co.”

Appellees by their replication averred that prior to the sending of the messages in question it had been verbally agreed between the Land Company and appellees that if any loan was guaranteed it should be guaranteed by Hartz and not by appellees, and that the word “you” in the telegram dated January 18th, was intended by the Land Company to refer to Hartz, and that it was so understood by appellees and by the Land Company. Appellant demurred to said replication upon the ground that the contract referred to being in writing could not be varied by parol evidence. The demurrer was overruled by the court, and upon appellant abiding thereby damages were assessed and judgment rendered against appellant for $450. The demurrer to the replication was properly overruled. The rule that parol evidence is not admissible to vary the terms of a written contract can only be invoked by the parties to the contract or those in privity with them. Assurance Co. v. Building Assn., 198 Ill. 474.

The contention of appellant that the telegrams did not constitute a completed contract that appellees could have enforced against the Land Company and consequently could have suffered none other than nominal damages, is without force, / It is clear from the language of the telegrams that there was a complete meeting of the minds of the parties that had the final telegram of January 19th, which constituted an absolute unconditional and precise acceptance, been delivered within a reasonable time, the contract would have been complete and enforceable. That it did not become so was manifestly because of the iiegligence of appellant./

Appellant insists that the damages are excessive; that $50 automobile hire should have been deducted from the amount of the second lien notes which appellees were to receive. We think the telegram of January 13th may be properly construed to mean that the second lien notes mentioned amounted to $450 after deducting the automobile hire. Inasmuch as the evidence shows that such notes were worth their face value, the court was warranted in assessing the damages at $450.

The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Robert McCray, Administrator, Appellee, v. Moweaqua Coal Mining & Manufacturing Company, Appellant.
    1. Mines and Minebs Act—in whom right of action lies for wilful violation. For a wilful violation of the Mines, and Miners Act resulting in death, the cause of action is vested hy statute in the widow and not in the administrator of the deceased.
    2. Mines and Minees Act—what essential to recovery for wilful violation. In an action under the Mines and Miners Act it is necessary to prove that the proximate cause of the death was the wilful violation of the defendant to comply with some of the provisions of such statute, and the defenses of contributory negligence and assumption of risk are unavailing.
    3. Statute of Limitations—when new cause of action set up. If the original declaration relied upon a right of action created at common law and the amended declaration sets up a cause of action conferred by the Mines and Miners Act, a new cause of action is set up.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Shelby county; the Hon. Tbuman E. Ames, Judge, presiding.
    Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed May 22, 1909.
    J. C. & W. B. McBride, for appellant; W. C. Kelly and John Ridgely, Jr., of counsel.
    Chafee & Chew and S. S. Clapper, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case for the recovery of damages alleged to have been occasioned by the death of Thomas McCray. A trial by jury resulted in a judgment in favor of appellee of $4,500.

The original declaration was filed on November 3, 1905, by Bobert McCray, administrator of the estate of Thomas McCray, deceased. It is therein charged that Thomas McCray left him surviving Ethel McCray, his widow, and Waneda McCray, his only child and next of kin, and that by reason of his death they had been deprived of their means of support, to their damage, etc. On November 16, 1907, the plaintiff amended his declaration by inserting after the words “Bobert McCray, administrator,” the following words: “and sues for the use of Ethel McCray, widow of Thomas McCray, deceased, and Waneda McCray, only child of said Thomas McCray.” The defendant then interposed a plea of the statute of limitations to such amended declaration, averring that the cause of action did not accrue to the plaintiff or to the said Ethel McCray and Waneda McCray at any time within one year prior to the filing of the declaration. A demurrer was filed to said plea and sustained. The amended declaration upon which issue was joined and the cause tried was filed November 27, 1907. It is charged in the several counts thereof that the defendant on June 28, 1905, was operating a coal mine at Moweaqua in Shelby County, Illinois; that Thomas McCray, who was then and there employed by the defendant as a mule driver, was engaged as such in a certain entry in said mine, hauling loaded cars of coal, and riding at his proper place on the front end of the first car; that another train of loaded cars became suddenly stalled immediately in front of that of which he was in charge, whereby he was thrown from the said car, and caught between the rib and car and crushed and killed.

Each of the counts charges that the death of McCray resulted from the wilful failure of the defendant to provide and maintain places of refuge in the entry in question, and in several it is also charged that the defendant wilfully failed to keep the existing places of refuge clear of obstructions, and in others that the defendant permitted dirt to accumulate upon the track. In a number of the counts it is further alleged that at the time of his death McCray was in the exercise of due care and caution for his own safety. While no reference to the statute is made in either count, the duty and wilful failure to provide and maintain places of refuge is set out substantially in the language of the statute relative to mines and miners.

The declaration thus contains some of the essential averments in both actions for negligence at common law and for violation of the Mines and Miners statute. It is reasonable to infer from the absence of reference to the latter statute, the averments of due care on the part of the deceased, and the fact that the suit was instituted by the administrator, that by the original declaration it was sought to invoke the common law remedy for the alleged wrongful act, neglect or default of the defendant, and that thereafter he sought to amend his declaration so as to state a right of action under the statute.

While the original declaration defectively stated a good cause of action under the Mines and Miners Act, and could have been made a basis of formal amendment so as to have avoided the effect of mere defective pleadings, the substantial and insuperable objection arises that the suit was not brought by and in the name of the widow who if living was the only person authorized by the act to do so. Rev. Stat. 1908, page 1393.

In order to recover in an action for common law negligence it is necessary to prove that the deceased was in the exercise of due care and did not assume the risk as incident to his employment. In an action under the mines and mining statute it is necessary to prove that the proximate cause of the death was the wilful failure of the defendant to comply with some of the provisions of such statute, and the defense of contributory negligence and assumption of risk are unavailing. The two causes of action are therefore radically different. Bradley v. Coal Co., 231 Ill. 622.

It follows that if the effect of the amendments was to change the action from one for common law liability to one for violation of the mining statute, a different cause of action was presented and the court erred in sustaining the demurrer to the statute of limitations. Bradley v. Coal Co., supra.

We are of opinion, however, that the subsequent attempt of the appellee to change the party plaintiff by amending by inserting in the declaration after the words “Robert McCray, administrator,” the further words “and sues for the use of Ethel McCray, widow of Thomas McCray, deceased, and Waneda McCray only child of said Thomas McCray” did not operate to change the form of action. The words interpolated were but mere surplusage and added nothing to the declaration. C. & A. R. R. Co. v. Murphy, 198 Ill. 462. “In an action at law by one for the use of another the words ‘for the use of’ are unnecessary for any purpose other than to protect the interest of the usee against .the nominal plaintiff. Courts of law can only recognize the nominal plaintiff, although as a matter of convenience they will disclose and protect the trust.” W. C. St. R. R. Co. v. Lundahl, 183 Ill. 284; C. G. Ry. Co. v. Kriz, 94 Ill. App. 277. The declaration after amendment must thereupon he held to have stated a cause of action for common law negligence merely.

It is difficult to determine from the record whether the cause was tried as an action for the alleged common law or the statutory liability of appellant. Counsel for appellee insist in argument that the declaration as it finally stood sufficiently stated a statutory right of action and that the same was established by the evidence. A number of instructions were given by the court at the request of appellee grounded upon the statute. Under the views herein expressed these instructions have no place in the case and the court erred in giving the same.

The judgment is reversed and the cause remanded.

Reversed and remanded.