text:
    Minnie L. Baxter, Administratrix, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Instructions—when failure to instruct jurp to disregard counts not ground for reversal. If the court improperly refuse to direct the jury to disregard certain counts of the declaration, such action will not reverse if there are other counts in the declaration which the evidence fairly tended to support and to which the verdict is clearly referable.
    3. Evidence—when proof of ordinance sufficient. An ordinance is properly proved if contained in a book of ordinances shown to have been published by authority of the city council.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed August 5, 1909.
    Rehearing denied November 24, 1909.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin, Gillespie & Fitzgerald and W. C. Kelly, of counsel.
    Dove & Dove, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

In an action on the case appellee recovered a judgment against appellant for $1500’ damages for wrongfully causing the death of James H. Baxter, her husband and intestate. The declaration charges the death of Baxter on January 29, 1907, at a crossing of Cedar street and the railway of appellant in the city of Shelbyville, through the negligence of appellant. The first count charges careless and improper driving and managing a locomotive by the servants of the defendant; the second count, the failure to ring a bell or blow a whistle in approaching the crossing as required by the statute; the third count, that the train was run -at an excessive rate of speed, in violation of an ordinance of the city; the fourth count is substantially the same as the third; the fifth count, the failure of the defendant railway company to maintain a safe' crossing; the sixth count, the running of the train at a high and dangerous rate of speed, without any warning as required by the statute. The seventh additional count charges that the defendant, by its servants driving said engine and train at a rapid rate of speed, without ringing any bell or sounding any whistle, as required by the statute, or other warning, so maliciously, wilfully and wantonly operated said engine and train that the same ran into the said Baxter, thereby causing his death.

A plea of the general issue was interposed to the declaration and the issues submitted to a jury. At the conclusion of the plaintiff’s evidence in chief and again at the close of all the evidence, the defendant moved the court to instruct the jury to find a verdict in favor of the defendant, which motions were overruled.

The following facts appear from the evidence: Appellant’s railway extends east and west through the city of Shelbyville, crossing first Vine and then Cedar street in said city. James H. Baxter, appellee’s intestate, was a coal miner employed at a coal mine located about a quarter of a mile south of the intersection of Cedar street with the railway. He resided several blocks north of said crossing and just east of Vine street. Shortly after five o’clock on the morning he was killed, he left his home to go to work. The evidence does not clearly disclose the route pursued by him. It does appear, however, that he went either south on Vine street and thence west on the railroad toward Cedar street crossing or that he went west on a street parallel with the railroad until he reached Cedar street and thence south on Cedar street to the crossing. The defendant insists that he followed the former route and was struck while upon the right of way and before he had reached the crossing proper, while the plaintiff contends that he took the former, and there is evidence tending to support either theory. There is evidence tending to show that when upon the railroad track and upon or near its intersection with Cedar street, he was struck by appellant’s passenger train No. 43, which went west on that morning and passed the crossing at about 6:10 o’clock, at a rate of speed of at least fifty miles an hour. There were no eye witnesses to the occurrence, and therefore no direct proof' as to his position at the precise time he was struck. The circumstantial evidence pertaining thereto was substantially the following: Between 6 and 6:30 o’clock the witness Montooth found Baxter’s cap lying west of the center of the crossing; shortly thereafter• his body was found lying upon the crossing about twenty feet south of the track, with the head toward the north and the feet toward the south, nearly in' line with the street, and east of the traveled portion thereof. The food from his dinner pail was scattered on the right of way from a point east of the east line of Cedar street and thence toward where the body lay. Some of the liquid coffee from the pail was spilled upon the frost east of the street line and cattle-guard.

The accident occurred within the corporate limits of Shelbyville. An ordinance of that city was introduced and admitted in evidence, which prohibited the running of trains at a speed in excess of ten miles an hour within the corporate limits. There is a serious conflict in the evidence upon the question as to whether or not the statutory signals were given. The chief grounds urged for a reversal of the judgment are that the evidence shows that the deceased was a trespasser, and fails to show that he was in the exercise of ordinary care at the time he was killed. Whether the deceased was a trespasser or not, was a question of fact for the jury to be determined from all the facts and circumstances shown by the evidence. While the evidence might well have supported a finding that the deceased was upon the right of way of the defendant when he was struck, the question as to his position at the time was properly submitted to the jury by an instruction which advised them that if they believed from the evidence that at the time the deceased was struck and killed he was upon the railway of the defendant, not at ajpublic crossing, there could be no recovery. We cannot say, after a careful consideration of the evidence, that the finding of the jury as evidenced by the general verdict, was clearly unwarranted by the evidence, and we are therefore concluded thereby.

It is further urged that a verdict should have been directed for the reason that the plaintiff failed to establish the fact that the deceased was- at the time he was killed in the exercise of ordinary care for his own safety. A number of witnesses testified on the trial that Baxter was a strong, healthy man, with good eye-sight and hearing; was sober and industrious, and a man careful for his own safety. Where there were no eye witnesses -to the killing of a person, his administrator in an action for damages may establish the exercise of ordinary care on the part of the deceased by the highest proof of which the case is capable, including the habits of the deceased, and facts and circumstances from which the jury may rightfully find that he was exercising such care; and the jury may take into consideration, with the other facts and circumstances proven in the = case, the instinct which naturally leads men to avoid injury and preserve their own lives. Collison v. I. C. R. R. Co., 239 Ill. 532. Counsel for the defendant admit that such is the law, but insist that an inference of negligence on the part of the deceased is equally to be entertained by the courts when it logically arises from such circumstances, and that slight circumstances may overcome the presumption of freedom from negligence thus established. It will suffice to say in the present case that we do not think the facts and circumstances relied upon by the defendant are sufficient to overcome the inference of due care on the part of the deceased; and we are not disposed to hold as a matter of law, that a verdict should have been directed for this reason.

It is next urged that the court erred in submitting for the consideration of the jury the first and seventh counts of the declaration, for the reason that there was no evidence tending to support either of the charges of negligence therein. Such counts should have properly been withdrawn from the jury. Inasmuch, however, as there were counts in the declaration which the evidence fairly tended to support, and to which the verdict is clearly referable, it was not reversible error to refuse to withdraw the same. In Klofski v. R. R. Supply Co., 235 Ill. 146, it is said: “Where a declaration consists of more than one count and some of the counts fail to state a cause of action or are unsupported by any evidence fairly tending to prove them it is proper practice for the trial court when asked to do so to withdraw such defective or unsupported counts from the consideration of the jury; but the refusal of the trial court to so withdraw such defective or unproven counts from the consideration of the jury is no reason for reversing the judgment, when there are other proven counts in the declaration sufficient to sustain the verdict.”

It is also urged that the court erred in not excluding from the consideration of the jury the ordinance of the city of Shelbyville limiting the speed of railroad trains to ten miles per hour. The book of ordinances was properly admitted in evidence under the statute. The circumstances recited in the supplemental bill of exceptions show that the same were published by authority of the city council.

We are unable to say that the findings of the jury upon the issues of fact in controversy, were manifestly against the weight of the evidence. There was no prejudicial error in the rulings of the court upon the instructions.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    E. H. Bindley & Company, Appellees, v. William T. Watson, Appellant.
    1. Evidence—what not part of res gestae. Self-serving declarations not part of the res gestae are properly excluded.
    2. Instructions—when errors presumed cured. If all given instructions do not appear in the abstract, it will be presumed that' any errors appearing in those complained of were cured by the other instructions given.

      Assumpsit. Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    Yah Sellar & Yah Sellar, for appellant.
    H. S. Tahher and Stewart W. Kincaid, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Appellees, who were wholesale drug dealers, recovered a judgment in assumpsit against the appellant, in the sum of $381.93, for goods, wares and merchandise sold and delivered. ■ The undisputed facts involved are substantially as follows: Prior to March 14, 1908, one Lyons purchased a drugstore in Chrisman and gave his notes in payment therefor, his father-in-law, appellant, signing the same as surety. On March 14, 1908, he made a bill of sale to appellant. No possession was taken under the bill of sale by appellant until April 11th, thereafter, at which time he went into actual possession of the store, and employed Lyons to manage the same.

The merchandise for which this suit was brought, with the exception of one item, was purchased and delivered after the execution of the bill of sale and prior to April 11th, was charged to Lyons, and became a part of the stock of goods in question. Appellant continued to conduct the business until the following May, at which time he turned over the stock of goods to Lyons, who shortly thereafter was adjudged a bankrupt, and the property was then sold under an order of the bankruptcy court. Appellant then tendered to appellees payment for the goods ordered after April 11th, but appellees refused to accept the same, and instituted the present suit.

It is contended by appellant that the bill of sale was executed by Lyons to him to secure him against liability as surety upon the notes referred to; that said instrument was in effect only a chattel mortgage; that no credit was extended to Lyons on account of appellant, and that he cannot therefore be held responsible for any indebtedness so contracted.

Appellees’ contention is that upon the execution of the bill of sale to appellant, he became the real owner of the stock of goods, and thereafter conducted the business, and therefore became liable as an undisclosed principal, for the goods purchased thereafter, although the credit was extended and the goods charged to Lyons.

To establish their case appellees, in addition to the bill of sale, introduced the evidence of Norman Bindley, a member of their firm, who testified that in May, 1908, appellant stated to him that he had become tired of advancing money to Lyons and had told him early in January of that year to make out a bill of sale and transfer the store to him, appellant. The contention of appellant is that the bill of sale was given merely to secure him against liability as surety upon Lyons’ notes and that the assumption of possession by him was equivalent to a foreclosure, and did not relate back to the date of the bill of sale. Whether appellant was the real owner of the store at the time the goods were sold, and whether the bill of salje was intended as an absolute transfer or merely as security, were issues of fact for the determination of the jury. The evidence relative thereto was close and conflicting. We cannot say that their findings were so manifestly against the evidence as to warrant disturbing the same.

Such part of the conversation between Norman Bindley and appellant as was permitted to remain in evidence was competent as an admission, and the court did not err in its rulings relative thereto. The evidence of Pfunty as to what Lyons said at the time the bill of sale was acknowledged was incompetent, being in the nature of a self-serving declaration and not a part of the res gestae.

Inasmuch as all of the given instructions offered do not appear in the abstract, we will refrain from considering whether the court erred in its rulings thereon. It will be presumed that any error was cured by other instructions given. City of Danyille v. Schultz, 99 Ill. App. 287.

There is no prejudicial error in the record and the judgment is affirmed.

Affirmed.


text:
    J. T. Osborn, for use of Jared Davis, Appellee, v. American Insurance Company, Appellant.

      Insurance—when fire policy void by reason of change of ownership. Held, that the policy in suit became void by reason of the change in the ownership of the property insured without the consent of the company, and held further, under the evidence, that a soliciting agent of such company had and assumed no authority to make an assignment of the policy or to consent thereto or to waive any of the conditions of such policy after it was issued.

      Assumpsit. Appeal from the Circuit of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed with finding of facts.
    Opinion filed October 25, 1909.
    Thomas Bates and Acton & Acton, for appellant.
    O. M. Jones and Bearick & Meeks, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit upon a fire insurance policy. A trial by jury resulted in a judgment against defendant for $3000, to reverse which it prosecutes this appeal.

The policy, which is set out in full in the declaration, contains the following provision:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the interest of the assured be other than unconditional and sole ownership, or if any change other than by the death of the assured takes place in the interest, title or possession of the subject of insurance, or if this policy be assigned before loss.”

The policy also recites that “In any matter regarding this insurance, no person, unless duly authorized in writing, shall be deemed the agent of this company; ’ ’ that the policy was made and accepted subject to the foregoing stipulations and conditions, and that no agent had power to waive any of the provisions unless indorsed in writing on the policy. Another clause provides that if the policy should be cancelled or become void or cease, the unearned premium should be returned on surrender of the policy, the company retaining the customary short rate.

The defendant pleaded the general issue and a number of special pleas. The second plea alleges that the plaintiff sold and conveyed the property described in the policy to Davis, the usee plaintiff, and that no consent to said change was ever made by the company, nor was the condition waived, by reason whereof the policy was void. The third plea sets out the provisions of the policy prohibiting assignment, and avers that the policy was assigned by plaintiff to Davis without any consent of the company, which avoided the policy. In the view we take of the case it will be unnecessary to consider the defenses raised by the remaining pleas.

The facts in the case, as shown by the record, are as follows: Prior to and on February 28, 1908, one Armstrong was the soliciting agent for appellant at Allerton, Illinois, with authority to solicit insurance, take written applications therefor, forward the same to the general agent of the company at Rockford, Illinois, and, if the applications were accepted by such general agent and a policy was issued by him, to then collect the premium and remit it to the company’s office at Rockford. He had no authority to and did not pass upon applications or determine for the company whether policies should be issued thereon. On February 24, 1908, the appellee, Osborn, made a'written application addressed to the manager of the company at Rockford, Illinois, for a policy in the sum of $3000, covering a stock of diy goods, groceries, clothing, and store fixtures, contained in his store at Collison, Hlinois. The application was delivered to Armstrong, who forwarded it to the manager at Rockford, and upon February 28, the policy was written by the company pursuant to the application, duly executed, and sent to Armstrong at Allerton, who delivered the same to Osborn and received the premium.

After the policy was issued, and in the latter part of June, 1908, Osborn sold the stock of goods and the fixtures described in the policy to Jared Davis, and on June 29, 1908, Davis took possession of the same. On July 4, or about one o’clock on the morning of the 5th, the store, together with the stock and fixtures, was entirely destroyed by fire. The officers of the appellant company were notified of the fire, and sent its agent Smith to Collison, to investigate the loss. On July 13, the company learned for the first time, through Smith, of the sale of the stock and fixtures to Davis, and that possession of the same had been turned over to him. Liability was denied under the policy, whereupon Osborn brought the present suit upon the same for the use of Davis. It appeared upon the trial that after the stock and fixtures were sold and turned over to Davis, Osborn wrote a letter to Armstrong stating that he had sold the stock and fixtures to Davis, and wished to assign the policy to him; that about three days thereafter he received a reply from Armstrong telling him to fill up the blank on the back of the policy and send it to him, Armstrong, and he would have the matter attended to, or if he did not know how to fill up the assignment, to send it to him, and he, Armstrong, would fill it up and send it back to Osborn for his signature, and that upon this being done and the policy returned to him, he would have the matter attended to. Osborn then filled up the assignment, but failed to send the policy to Armstrong or to thereafter have any further negotiations or communication with him relative to the matter.

It is apparent from the evidence that Armstrong was but a soliciting agent; that he had and assumed no authority to make an assignment of the policy, or to consent thereto, or to waive any of the conditions of the policy after it was issued and delivered. The policy was void by reason of the change of ownership of the property. Appellee contends that it is immaterial as to what the actual authority of Armstrong was, but that if the evidence was sufficient to warrant the jury in finding that he had apparent authority, the fact that he had express notice that the property had been transferred to Davis, and that it was desired to keep the policy in force in his favor, and the company having elected to retain the unearned premium after such notice, the condition in question was waived.

Waiving the question as to whether or not Armstrong had authority, either actual or apparent, to consent to an assignment of the policy, we think that the court should have at the close of all the evidence directed a verdict in favor of the defendant, for the reason that the evidence is insufficient to warrant a finding that he assumed to or did consent to such assignment or that he had any knowledge that such assignment had been made. The judgment of the Circuit Court is reversed, and the clerk of this court will insert as a part of the judgment herein a finding that the appellee violated the provision of the policy in suit by selling the property covered thereby without obtaining the written consent of the appellant to such transfer of ownership.

Reversed with finding of facts.


text:
    City of Canton, Appellant, v. William C. Torrance, Appellee.

      Contribution—right of municipal corporation to recover of individual amount of judgment paid for injury suffered from obstruction. A municipal corporation which, has been compelled to pay a judgment to a person injured by an obstruction, excavation or defect in a street or sidewalk may recover over against the person who is the author of such obstruction, etc., which caused the injury, the amount of such judgment and attendant costs, unless such municipal corporation was itself at fault, and in such an action if the defendant had notice of the former action and an opportunity to defend the same, such former action and the judgment rendered therein are conclusive against the defendant upon the issues as to whether the obstruction, etc., existed, whether the person was injured as alleged without fault on his part, and whether he sustained damages to the amount of the judgment.
    Trespass on the case. Appeal from the City Court of Canton; the Hon. P. W. Gallagher, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Floyd F. Putman, for appellant.
    C. B. Adams, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

,This is an action in case by the City of Canton against William C. Torrance, for the recovery of the amount of a judgment theretofore rendered against the city in favor of one Charles Shaffer, as compensation for injuries sustained by him through falling into a defective coalhole in the sidewalk in front of the defendant’s premises. A trial by jury resulted in a judgment in favor of the defendant, to reverse which this appeal is prosecuted.

The declaration alleges that the defendant owned the premises abutting upon the sidewalk containing the defective coalhole; that it was the duty of the defendant not to render unsafe or in bad condition the said sidewalk; that the defendant had theretofore wrongfully rendered said sidewalk unsafe by having caused to be constructed in the same such defective coalhole; that Shaffer was injured; that he brought suit against the city for said injuries; that the defendant was notified by the city to come in and defend said suit, and that he did so; that judgment wag rendered in said suit against the plaintiff for $550 and costs, amounting to $591.20 in all, and that such judgment and costs were paid by the plaintiff. A general demurrer to the declaration was overruled by the court, whereupon the plea of the general issue was interposed.

The evidence shows that in about the year 1889 the defendant Torrance, who was then and has ever since been the owner of the premises abutting upon the same, caused the sidewalk in which was located the coalhole in question, to be constructed, and that at such time the coalhole in question was built therein; that the city authorities had never made any objection to the condition of the sidewalk or coalhole until after the happening of the accident; that the coalhole had continued in the same condition from the time of its construction till the happening of the accident to Shaffer; that the coalhole cover was too small for the rim, whereby the same was liable to tip when stepped upon.

Appellant introduced in evidence the record and files in the case of Charles Shaffer against the City of Canton, showing the institution by him of a suit against the city for damages for an alleged injury by reason of such condition of said coalhole cover; a trial by jury at the December term of said court, and the rendition of a judgment against the city for $550 and costs, amounting to $591.20; and also proved that notice had been given to appellee to defend said suit, and that he did appear and defend the same, and that appellant had paid said judgment and costs.

It is well settled that a municipal corporation which has been compelled to pay a judgment to a person injured by an obstruction, excavation or defect in the street or sidewalk of such corporation, may recover over against the person who is the author of such defect which caused the injury, the amount of such judgment and attendant costs, unless such corporation was itself at fault (Robbins v. City, 2 Black (U. S.) 418; City v. Robbins, 4 Wall. (U. S.) 657; Gridley v. City, 68 Ill. 47; Todd v. City, 18 Ill. App. 565; Severin v. Eddy, 52 Ill. 3 89; McDaneld v. Logi, 143 Ill. 487; City v. Roush, 13 Ill. App. 339; McDonald v. Village, 28 Ill. App. 157), and that in such an action, if the defendant had notice of the former action and an opportunity to defend the same, such former suit and judgment are conclusive against the defendant upon the issues as to whether the sidewalk was in fact defective, whether the person was injured as alleged, without fault on his part, and whether he sustained damages to the amount of the judgment. City v. Roush, supra; McDonald v. Village, supra; Robbins v. City, supra; City v. Robbins, supra.

Applying the foregoing rules of law to the facts stated, it is apparent that the evidence adduced by the city in the present case tends to establish the right of recovery under the second count of the declaration.

Appellee claims that no recovery can be had against him for the reason that the evidence shows that the sidewalk and coalhole were constructed in accordance with the orders of the city, under the supervision of its officials, and accepted by it. and that said sidewalk has ever since been used by it without complaint as to its condition; by reason of which the city is estopped to complain of its original construction.

We are unable to find any competent evidence in the record showing any action by the city accepting said sidewalk, or that the work was done under its supervision, or that it authorized the coalhole to be constructed. The fact that Torrance was permitted by the city to construct the coaivault and coalhole in the sidewalk gave him implied license only to construct the same in a reasonable and proper manner, but not to render the sidewalk less safe than it would have been without such coaivault and coalhole. Gridley v. City, supra; Smith v. McDowell, 148 Ill. 51; City v. Robbins, supra; Robbins v. City, supra; Todd v. City, supra. The fact that while acting under such implied license he constructed a coalhole which was in fact defective, does not estop the city from recovering in this case; tliat is to say, the city was not a wrongdoer in such a sense as to preclude its recovery. Robbins v. City, supra; Todd v. City, supra; Village v. Zalinski, 8 Hun 571. The jury were fully warranted in finding that the condition of the coalhole was defective when originally constructed by Torrance, and the city’s right of recovery was thus made complete. That the premises at the time Shaffer was injured were in possession of a tenant is immaterial, for the reason that the defective condition of the sidewalk existed prior to the possession of such tenant. Masonic Ass’n v. Cohn, 192 Ill. 210.

The third instruction given on behalf of the defendant was not in accordance with the law and should not have been given.

It is further insisted that there can be no recovery in this case for the reason that in the Shaffer case the plaintiff failed to allege in his declaration the filing of the notice to the city required by sections 7 and 8 of the Act entitled “Injuries,” and that therefore under the authority of Erford v. City of Peoria, 229 Ill. 546, the court acquired no jurisdiction of the subject-matter. The defendant appeared and defended the former suit, and had an opportunity to there raise the question. He failed' to do so, and the former judgment must be held to he conclusive as against him.

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

Reversed and remanded.


text:
    Anna Chapman, Appellant, v. Susannah J. Miller, Appellee.

      "ConvetaNciís—when tender essential to liability. A purchaser of real estate is not liable for the purchase price until conveyance or 'tender bf conveyance has been made.

      Asrsumpsi't. Appeal frbm the Circuit Court of McLean county; the Hon. "CoEOSTirr D. Myebs, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Livingston & Bach, for appellant.
    Welty, Sterling & Whitmore, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit for the recovery of certain money alleged to have been received by the defendant for the use of the plaintiff. A trial was had by the court, a jury having been waived, and resulted in a judgment against the plaintiff for costs. The declaration consists of the common counts and an additional count which alleges an indebtedness for the plaintiff’s share of the sale price of two certain pieces of real estate owned by the plaintiff, the defendant and two other persons in common, and which the plaintiff authorized the defendant to sell for her, and which the defendant did sell for $5140. The defendant pleaded the general issue.

The evidence shows that the plaintiff and defendant, who were sisters, and Martha Boss and Anna Dwyer, their nieces, were tenants in common of certain real estate devised to them by James Warnes, deceased, consisting of twenty acres of farm land and a dwelling-house in the city of Bloomington, plaintiff and defendant each owning a one-third, and said nieces each a one-sixth interest. The property in question had for several years been subject to a trust for the benefit of an invalid sister, and had been in charge of the defendant. After the death of the sister, the parties entered into a written agreement by the terms of which the defendant was to have charge of and sell the property, and the plaintiff, Martha Boss and Anna Dwyer, together with their respective husbands, executed a joint power of attorney to the defendant, authorizing her to negotiate and sell the property “for the best possible price at her discretion” and to in their names, execute all necessary deeds of conveyance therefor, and empowering her “to do all that may be necessary to procure the best possible price for said premises.”

The defendant was unable to find a purchaser for the farm land at what she deemed a fair price, and accordingly advertised and sold the same at public auction. All of the parties were present at the sale. The highest bid received was $125- an acre, whereupon the defendant, believing the property to be worth more, and, as she claims, to prevent its being sacrificed, herself bid $130 per acre, and the property was struck off to her. Later the city property was sold in a similar manner to the defendant’s daughter for $2540. No question was raised as to the validity of this latter sale, and the defendant paid to the other tenants in common their proportionate share of $1878.39- of the proceeds. The plaintiff contends that the sale of the farm property by the defendant to herself, under the circumstances, was voidable at the election of her tenants in common. They, however, chose to affirm the same, and by this and similar suits instituted by Martha Boss and Anna Dwyer, seek to recover from her their respective shares of the proceeds thereof. The defendant contends that under the authority and discretion vested in her by the power of attorney, she merely bid in the property to prevent the same being sold at an inadequate price and should therefore not be held as a purchaser of the'same.

The court in passing upon the propositions of law,in substance held the law applicable to be that an agent to sell real estate has no power to, without authority, bid in the same for his principal, and that in case of such an unauthorized purchase the principal has the election to accept the property or to hold the agent liable for the purchase price; that in case an agent to sell property sells the same to himself, the principal may ratify the sale and hold the agent to the terms thereof, and that such agent cannot invoke the Statute of Frauds as a defense to a suit for that purpose. We perceive nothing in either the written agreement or power of attorney which authorized the defendant to purchase the property for her tenants in common, and it is obvious that without such authority she was powerless to do so. Whether, however, the sale be treated as an unauthorized one to the principal, or a purchase by the agent, in either event the plaintiff and the other tenants in common had a right either to disaffirm or ratify the transaction. They have elected to ratify the same as a purchase by the defendant herself, and have the right to insist upon the performance by her of the terms of the same. We are of opinion, however, that upon payment of the purchase price to the plaintiff and the other tenants in common, she would be entitled to a deed of conveyance to the premises, and that in the absence of a tender of such a deed to the defendant by the plaintiff and the other tenants in common, she was not bound to pay the purchase price, or any part thereof, and that no recovery can be had by the plaintiff in this action for her proportion of the same.

In addition to the amount claimed to have been due from the sale of the farm land, the plaintiff seeks also to recover her proportion of a balance claimed to be due on account of the sale of the city property. The defendant insists that she was entitled to retain such balance as commissions for administering the estate of James Warnes and his widow, and in satisfaction of certain other charges which she claims are due to her from the plaintiff and the other devisees. There is no evidence in the record which tends to substantiate any set-off against the proceeds of the city property in the hands of the defendant, and the court erred in not allowing to the plaintiff the sum of $76.68, the balance due upon her share of the same. To this extent the judgment of the Circuit Court is erroneous, and the same will be reversed and the cause remanded.

Reversed and remanded.


text:
    B. P. Staley et al., Appellants, v. T. M. Lyman, Appellee.
    1. Contracts—when liability for failure to deliver arises. If a party who has sold a commodity to another repudiates his obligation to deliver, the other party may act upon such repudiation, rescind the contract and purchase upon the market the commodity so refused to be delivered and recover the difference between the amount paid therefor and the contract price. But the party to whom such commodity should be delivered must make his election so to treat such contract at an end; otherwise the same continues in force for the benefit of both parties.
    2. Damages—when only nominal, recoverable. If no data is supplied by the evidence from which the actual damages may be computed, nominal damages can only be recovered.

      Assumpsit. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbbick, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    H. Leonard Jones, for appellant; O. B. Dobbins, of counsel.
    Schaeeer & Dolan, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by the appellants, partners doing business as Staley & Hitch, against the appellee Lyman, for the recovery of damages for the alleged breach of two contracts to deliver certain grain; At the close of all the evidence, by direction of the court, the jury found the issues for the plaintiffs and assessed their damages at one cent. From the judgment rendered upon said verdict this appeal is prosecuted by the plaintiffs.

The declaration charges substantially that on October 1, 1905, the defendant sold to the plaintiffs 7000 bushels of corn at thirty-seven cents per bushel, and on May 23, 1906, sold to the plaintiffs 2800 bushels of oats at thirty-one cents per bushel, said com to be delivered within ninety days from the date of such sale thereof, and said oats within seven days from the date of such sale thereof; that the plaintiffs were ready and willing then and there to receive said grain and to pay the price agreed therefor upon receipt of the same, but that the defendant refused to deliver said grain or any part thereof within the time provided in said contract.

Staley & Hitch wer.e engaged in the grain business, having an office in Champaign, and elevators at Bond-ville and Staley. About October 1, 1905, Staley on behalf of his firm bought from Lyman, a farmer living near Staley, 7000 bushels of new com at thirty-seven cents per bushel, which Lyman agreed to deliver at either Staley or Bondville as soon as merchantable during the month of December, 1905, and within ninety days from the date of said contract. On October 10, 1905, Staley went to California, leaving Hitch in charge of the office and elevators of the firm. During Staley’s absence Lyman’s wife, at his direction, wrote the following letter, addressing it and the envelope containing the same, to Staley personally:

1 ‘ October 17, 1905.

“Mr. B. P. Staley.

Dear Sir: I changed my plans about delivering corn in December and want to cancel the sale of it. I have a good many cattle on hand at present and may need most of it for feed. T. M. Lyman. ’ ’

The letter was received in due course of mail. The envelope being addressed to Staley individually Hitch did not open the same when it was delivered but left it with Staley’s personal mail awaiting his return from California. Upon his return on October 29', 1905, Staley opened and read the letter, and in response thereto wrote to Lyman refusing to cancel the sale of the corn. In reply thereto Lyman wrote the following, which was received by the plaintiffs on November 2, 1905:

“November 1, 1905.

“Messrs. Staley & Hitch.

Tours of Oct. 31st at hand. I wrote you in the middle of Oct. in regard to canceling sale of corn, several days before there was any raise in price of corn. When I did not receive an answer in due time took it for granted the sale was canceled. It is canceled as far as I am concerned. I do not propose to pay the difference. I am not responsible for your absence from place of business. If this is not satisfactory you will have to take legal action. I stand pat on the honorable canceling of that sale before any raise in price of corn.

“T. M. Ltmah.”

The evidence shows that the market price of new corn at the time Staley returned from California, October 29, 1905, was forty cents per bushel, and that said price prevailed on November 1, 1905. Upon receipt of the last letter quoted the plaintiffs bought other corn to replace that due under the contract, paying for the same forty cents per bushel. The only questions presented by the contract are as to what sum the plaintiffs were entitled to recover as damages by reason of the failure of the defendant to deliver the com and oats in question within the time provided by the contracts. The plaintiffs contend that inasmuch as the defendant by his letter of November first repudiated his contract, they had the right to buy other corn to fill the same, and that in such event the measure of damages was the difference between the contract price and the fair cash market value at the time of repudiation, which they claim as shown by the evidence to have been three cents per bushel, or a total of $210. The defendant contends that the measure of damages was the difference, if any, between the contract price and the fair cash market value at the time and place where the delivery was to be made, and that there being no evidence as to such value at that time, nominal damages only were recoverable.

We are of opinion that upon the receipt of the defendant’s letter of November first, the plaintiffs had the right to act thereupon and to rescind the contract and contract with other parties for a like quantity of similar com, to be delivered at the time and places provided in their contract with the defendant, and to within a reasonable time bring suit for the recovery from him of the difference between the amount paid therefor and the contract price. Follansbee v. Adams, 86 Ill. 13; Kadish v. Young, 108 Ill. 170. The evidence discloses the fair market price of similar corn on the day in question. It does not appear, however, that such was the price on that day for delivery in the following December, and it must therefore be presumed to have been com which was to be delivered at once. What the plaintiffs were entitled to, under the contract, was to have the corn delivered to them at the time therein provided. They had the right, upon the repudiation of the contract by the defendant, to place themselves in the same and no better situation than that which they would have occupied had there been no repudiation, in other words, they were entitled on November first, to a contract for November com only and not the actual corn.

The plaintiffs did nothing, however, to indicate to the defendant that they had elected to rescind the contract, either by so notifying him or by bringing suit for a breach of the contract. The mere fact of contracting for other corn did not constitute an election so as to bind the defendant. It must be assumed, therefore, that they chose to treat the notice of repudiation as inoperative, await the time when the contract was to be executed, and then hold the defendant responsible for the consequences of his non-performance, in which case they kept the contract alive for the benefit of the defendant' as well as their own. They had no right, however, to wait as they did, without acting, until the time for performance had elapsed, and then elect to hold the defendant for damages as of the day of notice of repudiation. In either view the court properly limited the recovery to nominal damages, there being no evidence from which actual damages could be correctly admeasured.

There is evidence tending to show that on May 23, 1906, Lyman sold to the plaintiffs 2800 bushels of oats at thirty cents per bushel, to be delivered either at Staley or Bondville within seven days; that Lyman failed to deliver the same within that time; that when requested to do so on the last day provided for delivery, he told Staley that he didn’t have time to deliver them just then; that a new bridg'e was being built over a ditch, and that as soon as that was done he would deliver the oats, and that Staley made no objection to such extension of the time of delivery. There is no definite proof as to the fair market price of oats on the day fixed by contract for their delivery. Neither does it appear from the evidence when the bridge in question was completed or that the plaintiffs ever thereafter demanded delivery of the oats. It follows that there was no data from which actual damages, if any, could be computed, and nominal damages only were recoverable.

The judgment of the Circuit Court is affirmed.

Affirmed.

Mr. Justice Philbriok took no part in the consideration of this case.


text:
    Levi Seass, Appellant, v. N. S. Monroe et al., Appellees.

      Injunctions—when damages not allowed upon dissolution. If the original issuance of the injunction was rightful, the fact of dissolution resulting as a consequence of some ensuing act of those enjoined, does not authorize the assessment of damages.
    Bill in chancery. Appeal from the Circuit Court of Moultrie county; the Hon. •W. G. Cochean, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed.
    Opinion filed October 25, 1909.
    Rehearing denied; opinion modified November 24, 1909.
    Walter Eden, for appellant.
    W. K. Whitpield and F. J. Thompson, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Monroe, Dolan and Fulton, pursuant to the statute, severally suggested to the Circuit Court sitting in chancery, that by reason of the wrongful issuing of the injunction referred to in the opinion of this court in Seass v. Monroe et al., 146 Ill. App. 56, they had sustained damages by reason of having become liable to pay the reasonable and customary fees and charges for services necessarily rendered by their solicitors in procuring the dissolution of said injunction, and for various expenses and costs by them nece'ssarily expended to that end. Upon a hearing upon such petitions and the answer filed thereto by Seass, the chancellor found that the petitioner Monroe had sustained damages by reason of the wrongful suing out of said injunction, in the sum of $107.80; that for the same reason the petitioners Dolan and Fulton had been .jointly damaged in a like sum, and ordered that the petitioners have and recover the same of Seass, and that execution issue therefor. To reverse such decree this appeal is prosecuted by Seass.

It was held in onr former opinion that while the injunction in question was properly issued in the first instance, inasmuch as it appeared from their answers and the proof that the commissioners had after the issuance of the injunction and prior to the hearing of the motion to dissolve the same, so amended their official records as to show that their actions, alleged in the bill for injunction to be without authority of law, were in accordance with the statute, the injunction should have been dissolved upon such showing. The statute only allows the assessment of damages sustained by reason of wrongfully suing out an injunction (Elder v. Sabin, 66 Ill. 126), its object.being to compensate the party for the injury he has suffered by reason of having been wrongfully enjoined from doing a thing he had at the time the right to do. At the time the injunction was procured to be issued the petitioners were threatening to do that which their existing official records failed to show they had legal right to do. Their subsequent actions manifestly did not relate back so as to render the issuance of the injunction wrongful. It follows that the petitioners were not entitled to damages under the statute, and the decree of the Circuit Court is accordingly reversed.

Reversed.


author: Mr. Justice Putbrbaugh

text:
    William Lanum, Appellant, v. W. D. Patterson, Appellee.

      Injunctions'—when allowance of solicitor’s fees upon dissolution sustained. Where the allowance is predicated solely upon the value of the services rendered in procuring a dissolution of the injunction in question, the assessment will be sustained.
    Bill in chancery. Appeal from the Circuit Court of Moultrie county; the Hon. Solon Philbbick, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.

      Walter Eden and Eden & Martin, for appellant.
    E. J. Miller, for appellee.
   Mr. Justice Putbrbaugh

delivered the opinion of the court.

This is an appeal from a decree rendered upon suggestions by appellee of damages incurred by him by reason of the wrongful suing out by appellant of an injunction against him, by which decree appellee was allowed the sum of $150, being the amount of the solicitor’s fees incurred by him in procuring the dissolution of said injunction. The history of the litigation will be found in 143 Ill. App. 255. We held that a former decree for damages should be reversed for the reason that in determining the amount of such solicitor’s fees the proof was not confined to the services rendered in procuring the dissolution of the injunction, but on the contrary covered services rendered in the suit at law there referred to. Upon the present hearing the proof was confined to the value of services rendered in procuring a dissolution of the injunction, and was such as to justify the chancellor in allowing solicitor’s fees to the amount of the present decree. It will be affirmed.

Affirmed.

Mr. Justice Philbrick took no part in the consideration of this case.


author: Mr. Presiding Justice Baume

text:
    Charles Vacker, Appellee, v. M. Yeager et al., Appellants.
    1. Pebsonal injuries—how question of independent contractor determined. While the mode of payment is a circumstance entitled to some weight in a case of doubt as to whether the relation of master and servant exists, it is not the test by which such relation is to be determined.

      2. Personal injuries—how question of independent contractor determined. The contract between the owner and the contractors is primarily the source from which the question is to be determined, but the law will not countenance the employment of any shift or device to escape a legal liability, and even where a contract exists which assumes to determine the relation of the parties, if the facts and circumstances in evidence tend to show the existence of a relation other than that fixed by the contract, the question of the existence of such relation will become one of fact for the jury notwithstanding the contract.
    3. Personal injuries—what does not exclude relation of independent contractors. The mere retention by the owners to exercise, by their foreman, the right to inspect work as it progressed for the purpose of determining whether such work complied with the plans and specifications, does not operate to create the relation of master and servant between such owners and those engaged upon such work.
    4. Evidence—competency of liability policy, in an action for personal injuries. Held, that an employer’s liability policy was incompetent upon the question of negligence but was competent upon the question of the existence of the relation of master and servant.
    5. Master and servant—what duties non-deleg able. The duty imposed upon the master to provide a servant with a reasonably safe place to work is a non-delegable duty.
    6. Instructions—must not single out particular evidence. An instruction is erroneous which singles out and calls attention to a particular item of evidence.
    7. Instructions—must be clear. An instruction is properly refused which would rather tend to confuse than to enlighten the jury as to the law of the case.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    H. M. Steely and Louis Clements, for appellants.
    Walter V. Dysert and Doan & Orbison, for appellee; Thomas A. Grahami, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The plaintiff, Charles Vacker, recovered a verdict and judgment in the Circuit Court of Vermilion county against the defendants, M. Yeager and O. P. Yeager, partners doing business as M. Yeager & Son, for the sum of $7000' as damages for personal injuries. The declaration contains two counts. The first count alleges that the defendants on June 25,1907, had the contract for the erection and construction of a seven-story building in the city of Danville; that Joseph A. Dondono and John Gerance, employed under the name of Dondono i& Gerance, were the foremen for the defendants to superintend and direct the erection and construction of the steel work upon said building; that one Charles Bushong was the general foreman of defendants in the construction of said building; that plaintiff was a structural iron worker employed as such by the defendants, and that plaintiff and all other structural iron workers of defendants, and said Dondono and Gerance, as foremen, were under the personal control, direction and supervision of said general foreman, Charles Bushong, and were then and there in pursuance of said employment working upon a scaffold located three feet below the fourth floor of said structure, where they were engaged in riveting under the general direction and with the knowledge of defendants’ general foreman; that the steel work of said building had been erected to the sixth story and certain employes of the defendants were then and there working upon said sixth story erecting the beams of the seventh story; that defendants negligently failed to use reasonable care to protect plaintiff’s working place from falling tools and material dropping from the sixth floor and negligently failed to properly cover the floor of that part of the sixth floor above the place where plaintiff was at work, but negligently used a certain temporary floor constructed of planks which were too short to reach from one side of the structure to the other, whereby open spaces were left eight feet in length and six inches in width, of which defendants had knowledge and the plaintiff had no knowledge nor could by the exercise of reasonable care have had knowledge; that while the plaintiff was in the pursuance of his said employment and exercising due care for his own safety a wooden roller which was being used by the employes of the defendants upon the sixth floor was inadvertently pushed toward one of said open spaces and fell upon the head of plaintiff. The second count contains the additional allegation that the unsafe condition of the said floor upon the sixth story of the building had existed for five days prior to the injury complained of. To this declaration the defendants pleaded the general issue and also a special plea averring that the plaintiff was not an employe of the defendants and was not performing any duty or work for them, and that the defendants did not owe to the plaintiff the duties alleged in the declaration, but that plaintiff was at the time mentioned and prior thereto an employe of Joseph A. Dondono and John Geranee, partners doing business as Dondono & Geranee, independent contractors, and was working for them in the erection of the steel work of said building; that the temporary flooring mentioned in the declaration was laid and constructed by said Dondono & Geranee, as such independent contractors and not by the defendants, and that the employes engaged in moving said wooden roller upon the sixth floor, as well as the plaintiff, were all employes of Dondono & Geranee, and were performing such work for and acting under the directions of said Dondono & Geranee, and not of the defendants.

On November 23, 1906, W. F. Baum & Son, as owners, entered into a written contract with the defendants, M. Yeager & Son, for the construction by the latter of a seven-story steel building in compliance with the architects’ plans and specifications for the sum of $116,198.20 including the cost of labor and material, and the sum of $7500 as compensation for their services. The contract provided that the contractors might sublet any portion of the work, and on January 28,1907, said contractors entered into a written agreement with Joseph A. Dondono and John Gerance, designated as a copartnership' and as subcontractors, whereby, as such subcontractors, said Dondono & Gerance agreed to erect all the necessary steel work for the building in accordance with the architects’ plans and specifications and under the direction of the contractors or their authorized foremen, for the sum of $7.50 per ton for all steel erected. As to the manner of payment to said subcontractors the contract provided that the contractors should pay for all labor necessary in the erection of said steel according to pay rolls as submitted by the subcontractors, said pay rolls to be made up and paid every two weeks according to time books kept by the superintendent for the contractors, and that the subcontractors Dondono & Gerance, should each be allowed $30 per week; that after all the steel work had been set and completed to the satisfaction of the contractors and architects, the actual weight of the steel should be determined and the amount, if any, then remaining due to the subcontractors should be paid to them within thirty days thereafter. Said subcontract further provided, that in the erection of the work the contractors were to furnish all the necessary equipment to do the work, with the exception of the small hand tools, which were to be furnished by the subcontractors.

On June 25, 1907, while the plaintiff was engaged in his employment as a structural iron worker on the fourth story of the building, a wooden roller which was being used by certain other structural iron workers on the sixth story of the building fell through an opening in the temporary platform or floor constructed of planks on said sixth story and struck the plaintiff on the head causing the injuries complained of. It is uncontroverted that the plaintiff together with all of the other structural iron workers employed on the building were hired by Dondono & Gerance and that the general method of installing the equipment necessary to the erection of the structural iron work was directed and controlled by said Dondono & Gerance; that the necessary equipment for the proper performance of the work, including planks to be used as temporary floors on the several stories of the building as the work progressed, was furnished by the defendants, M. Yeager & Son; that at the time plaintiff was injured there was a sufficient supply of planks furnished by the defendants and1 accessible to Dondono & Gerance for use in constructing a close temporary floor on the sixth story of the building. The evidence tends to show that there was a difference of opinion' between Gerance and Dondono as to the manner in which such temporary floor should be constructed, Dondono insisting that such floor should be put in tight while Gerance considered the method adopted as sufficient for the purpose.

If the written contract which was entered into between the defendants and Dondono & Gerance is controlling and conclusive as to the relation of the parties it must be held that Dondono & Gerance were thereby created independent contractors to construct and erect the structural iron work. The contract in question in so far as it provides that the work shall be done under the direction of the defendants or their authorized foremen and to the acceptance of the architects or their authorized representative, is not unlike the contract involved in Pioneer Construction Co. v. Hansen, 176 Ill. 100, where it was held that such a provision conferred upon the general contractor the right of inspection and that the reservation of such right of inspection was not a reservation of the power to control the method of doing the work. The same doctrine is announced in Foster v. City of Chicago, 197 Ill. 264. It has also been held that while the mode of payment is a circumstance entitled to some weight in a case of doubt as to whether the relation of master and servant exists, it is not the test by which such relation is to be determined. Corbin v. American Mills, 27 Conn. 274; N. O. & N. E. R. R. Co. v. Reese, 61 Miss. 581; Morgan v. Smith, 159 Mass. 570.

It is insisted on behalf of the plaintiff: that the contract in question between the defendants and Dondono & Gerance was a mere shift or device entered into for the purpose of enabling the defendants to evade liability under the doctrine of respondeat superior for injuries resulting to structural iron workers upon the building, and that the facts and circumstances in evidence justify such insistence; and that the question as to whether or not the relation of master and servant existed between the plaintiff and the defendants became one of fact for the jury. The law will not countenance the employment of any shift or device to escape a legal liability and we have no doubt that even where a contract exists which assumes to determine the, relations of the parties, if the facts and circumstances in evidence tend to show the existence of a relation other than that fixed by the contract, the question of the existence of such relation will become one of fact for the jury notwithstanding the contract.

Upon the trial of the cause the plaintiff was permitted over the objection of the defendants to introduce in evidence an employer’s liability insurance policy issued to the defendants by the Aetna Life Insurance Company through its agent, John W. Webster, which policy covered any loss or damage resulting from claims upon the defendants for damages on account of bodily injuries or death accidentally suffered by any employe or employes of the defendants by reason of the prosecution of the work under the contract between said defendants and the owners. Considering the question involved upon the admission of the insurance policy apart from the question which subsequently arose upon the trial as to the admissibility of evidence of the conduct of one of the defendants in notifying the agent of the insurance company that one of the workmen upon the building had been injured, which question we reserve for discussion hereafter, the insurance policy was improperly admitted at the time it was offered. As bearing upon the question of the negligence of the defendants the fact that the master carried insurance against loss or damage resulting from accidental injuries to his servants is wholly irrelevant, and in such case the mere statement or intimation by counsel of such fact upon the trial of a cause before a jury has frequently been held to constitute reversible error. Emery Dry Goods Co. v. DeHart, 130 Ill. App. 244; McCarthy v. Spring Valley Coal Co., 232 Ill. 473. The policy of insurance was offered by plaintiff and permitted to be introduced in evidence as tending to show that the relation of master and servant existed between plaintiff and the defendants, but there is nothing in the policy which even by inference tends to show the existence of such relation. The employes of the defendants for whose accidental injury or death the policy was issued as indemnity are not named therein and the policy by its express terms excludes any liability from iron or steel frame erections, and the estimated premium which was paid for the policy, which premium was based upon the wages paid by the defendants to their employes as indicated by the payrolls, expressly excludes any payments to subcontractors.

Upon the direct examination of Oscar P. Yeager, one of the defendants, he testified that the plaintiff was in the employ of Dondono & Gerance. Upon his cross-examination by counsel for plaintiff Yeager was asked- whether he had not notified the Aetna Life Insurance Company of the accident by which plaintiff was injured, and over the objection of defendants he was permitted to state that immediately after the accident he communicated with the agent of the insurance company by telephone, and notified such agent that an accident had occurred upon the building and that one of the steel workers had been injured. He further testified that as the policy of insurance required the assured to notify the company immediately upon the occurrence of an accident, he had given such notice for the purpose of being on the safe side. It is urged on behalf of the defendants that the subject-matter of his cross-examination was wholly irrelevant and improper, and that its admission operated to seriously prejudice their case. This evidence adduced upon the cross-examination of the witness Yeager was in the nature of an admission by conduct, and while not conclusive in its character it was competent to be considered by the jury in determining the main issue in the case, viz., whether the plaintiff was a servant of the defendants or of the independent contractors. Where the existence of the relation of master and servant is an issue in a case, such as that at bar, it has been held, and we think properly, that it is competent for the plaintiff to show that the defendant carried indemnity' insurance upon the employes, including the plaintiff. Brower v. Timreck, 66 Kan. 770 ; Barg v. Bousfield, 65 Minn. 355; Corrigan v. Elsinger, 81 Minn. 42. Any act or conduct on the part of a defendant which is inconsistent with a defense interposed by him is generally admissible in evidence and proper to be considered by the jury in determining the issue involved, and the fact that such evidence may have but a slight bearing upon the issue does not render it incompetent but merely affects its weight.

The fact that the payrolls used by Dondono & Iterance were the same in form as those used by the defendants, except that lines were drawn through the names of the defendants printed thereon and the names of Dondono & (Iterance as employers were substituted therefor in writing, is not of sufficient significance in the determination of the issue involved to merit notice.

It is insisted on behalf of the plaintiff that the evidence discloses that Charles Bushong, the general foreman or superintendent of construction in the employ of the defendants, directed the particular method and means by which the structural iron workers employed upon the building should prosecute their work, and that Dondono & Gerance were merely foreman employed by the defendants because of their special familiarity with that character of work. There is much incompetent evidence in the record consisting of the mere conclusion of witnesses with reference to the capacity in which Bushong acted in directing and superintending the work of construction. It was competent to show what Bushong did or said with reference to the prosecution of the structural steel work, and so far as the competent evidence in the record discloses, what he said and did in that regard was entirely consistent with his duties as general superintendent of construction as it related to the inspection of the work for the purpose of ascertaining whether it complied with the plans and specifications, and not to the method or means which should be employed in doing such work. The mere retention by the defendants and the exercise by their foreman of the right to inspect the structural steel work as it progressed, for the purpose of determining whether such work complied with the plans and specifications, did not operate to create the relation of master and servant between the defendants and the structural steel workers. Pioneer Construction Co. v. Hansen, supra; Foster v. City of Chicago, supra. To hold otherwise would result in depriving an owner or general contractor of the right to sub-let work to an independent contractor without incurring the disability of determining whether such independent contractor had complied with the plans and specifications in pursuance of which the work was to be performed. Considering only the competent evidence in the record bearing upon the issue as to whether or not the plaintiff was a servant of the defendants, we are clearly of the opinion that the verdict of the jury is against the manifest weight of the evidence and that the trial court should have set it aside upon the motion for a new trial.

The negligence alleged in the declaration is the failure of the defendants to exercise reasonable care to provide the plaintiff with a reasonably safe place in which to work. This duty imposed upon the master is a non-delegable duty and the fellow-servant doctrine is not applicable to the case. The declaration expressly negatives plaintiff’s assumption of the risk and it was not reversible error to instruct the jury to find for the plaintiff if they believed from a preponderance of the evidence that he had made out his case as alleged in the declaration or either count thereof. Hagen v. Schleuter, 236 Ill. 467. The giving of an instruction in this form is not, however, to be commended. Dickson v. Swift Co., 238 Ill. 62.

The third instruction given at the instance of plaintiff, wherein it authorized the jury to consider the insurance policy together with all other evidence in the case in determining whether the plaintiff was or was not an employe of the defendants, was improperly given for the reasons heretofore stated, and for the further reason that it singled out a particular item of evidence. Such policy of insurance gave no color to plaintiff’s claim that he was an employe of the defendants. The fourth instruction given on behalf of plaintiff is' erroneous because it is predicated in part upon no competent evidence in the record, and because it directs the jury in determining the question as to whether or not the plaintiff was in the employ of the defendants to consider matters which have no possible bearing upon that issue.

The construction of the written contract between the defendants and Dondono & Geranee was a question of law for the court and the defendants might well have asked an instruction which the court could have properly given construing such contract as creating the relation on the part of Dondono & Geranee of independent contractors, hut the jury should have been further advised in that connection that such contract was not conclusive as to the relation of the parties. The 25th instruction asked by the defendants and refused by the court substantially treated the contract in question as conclusive of the relation of the parties and was therefore properly refused. The 18th instruction offered by defendants was properly refused because it assumed that the plaintiff had notice and knowledge of the danger liable to result to him from the manner in which the temporary floor was constructed. As the fellow-servant question was not involved in the case it was not error to refuse the 19th instruction tendered bv defendants. The 20th instruction tendered by defendants and refused by the court was properly refused'as it tended to confuse rather than enlighten the jury as to the law of the case. Chicago City Ry. Co. v. Lowitz, 218 Ill. 24. The 21st, 22nd and 23rd instructions offered by the defendants and refused by the court were cautionary in character and the giving of the same was largely discretionary with the trial court. The 24th instruction asked by the defendants and refused by the court was sufficiently covered by other instructions given in the case. The 26th instruction tendered by defendants and refused by the court was properly refused because it advised the jury to disregard evidence of the conduct of the defendants in notifying the agent of the insurance company of the accident to plaintiff, which evidence we have held to have been competent.

For the reasons stated the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed cmd remanded.


text:
    G. C. Smith, Administrator, Appellee, v. W. C. Penn, Appellant.
    Brokers and factors—when real estate commissions earned. In order that a real estate broker shall become entitled to commissions he must show that he produced a purchaser for the property of the owner upon the terms prescribed who was ready, able and willing to purchase the same. The duty to procure a purchaser who is willing and able to perform, is not complied with by merely presenting one who is able to put up a forfeit hut is otherwise financially unable to carry out the contract, and the owner is not required to accept a purchaser without opportunity for investigation as to his ability to comply with the terms of the contract.

      Assumpsit. Appeal from the Circuit Court oftSangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed.
    Opinion filed October 25, 1909.
    Rehearing denied November 24, 1909.
    Davidson & Bussell and John Gr. Pried meter, for appellant.
    Egbert H. Patton, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit originally instituted by Menkens, a real estate dealer in Springfield, Illinois, against Penn, a resident of St. Louis, Missouri, for the recovery of commissions under a contract for the sale of certain real estate in Sangamon county, Illinois, which was owned by Penn and his brother and sister jointly. Menkens died, pendente lite, and Smith, his administrator, was substituted as plaintiff. •

There is evidence tending to show that Penn, through the medium of one Needles, a resident of Springfield, agreed with Menkens that if he would within one week from June 6, 1906, find a purchaser for the real estate, at $21,000 net, he would sell the same for that sum, and he, Menkens, might retain any excess above that amount as his commissions, and that on June 8, 1906, Menkens notified Needles that he had found a purchaser at the price named, and to execute a deed to J. E. Caldwell as purchaser. The evidence discloses that the actual proposed purchaser procured by Menkens was one J ames, and not Caldwell; that it was intended by Menkens, for the purpose of protecting his commissions, to have the property conveyed to Caldwell, and by Caldwell in turn to James, and that James was to pay for the property the sum of $21,700.

In order to recover in this suit it was essential that the plaintiff produce a purchaser for the property upon the térms prescribed, who was ready, able and willing to purchase the same. The purchaser presented by Menkens to Penn was Caldwell. While the evidence was ample to justify the jury in finding that he was willing to carry out the contract of purchase, it fails to show that he was financially able to do so. Caldwell testified that the arrangement was that the deed was to be taken in his name, and that James was to take a deed from him; that to secure performance on his part, James placed in his hands as a forfeit a check for $500, and that he in turn gave his check to Menkens for u like sum and for a like purpose; that he simply assisted Menkens in trying to put the deal through, as a prospective purchaser, and did not intend to invest any money; that he was simply acting as middleman to take the deed, so as to cover up Menkens’ commissions.

We are of opinion that the failure to show that Caldwell, who was reported by Menkens as the prospective purchaser, was able to carry out the deal, is fatal to a recovery; that it is not sufficient to show that James, who was an utter stranger to the defendant in the transaction, was on his part so able. While it is true that Caldwell placed the check in the hands of Menkens as a forfeit, what Penn desired was a purchaser for the property, not a penalty. The duty to procure a purchaser who is willing and able to perform, is not complied with by merely presenting one who is able to put up a forfeit but is otherwise financially unable to carry out the contract.

The defendant was not required to accept a purchaser without opportunity for investigation as to his ability to comply with the terms of the contract. Fox v. Ryan, 240 Ill. 391. He was therefore entitled to be advised as to the identity of the purchaser, and was not bound to recognize one with whom he was not in privity. . •

For the reasons stated, the judgment of the Circuit Court is reversed.

Reversed.


text:
    Henry Swincsynski, Appellee, v. Kelly Coal Company, Appellant.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the' weight of the evidence unless clearly and manifestly so.
    2. Instruction's—when authorising allowance for future suffering appropriate. An instruction is appropriate which authorizes the jury in an action for personal injuries to take into consideration upon the amount of damages to be awarded, future suffering in body and mind, etc., if the evidence shows that at the time of the trial the plaintiff had not recovered from his injuries.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    O. M. Jones and Charles Troup, for appellant; Mas-tin & Sherlock, of counsel.
    ■ Thomas A. Graham, for appellee; Walter V. Dysert, of counsel.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case brought by appellee, a coal miner, against appellant, to recover damages for a personal injury caused by the alleged wilful violation of the act relative to mines and mining. The declaration charges that on December 15-, 1906, plaintiff was in the employ of the defendant as a coal miner digging coal in a certain room of its mine; that on said day and prior thereto there were no blocks or cap pieces in said room, and that the same were necessary for the purpose of securing the roof of said room; that on said day, and prior thereto, the plaintiff had demanded of defendant’s mine manager props of the length of eight feet, and cap pieces, for the purpose of securing the roof of said room; that defendant wilfully failed and neglected after said demand to furnish said props and cap pieces, and that while plaintiff was at work in said room on said day, a large rock from the roof of said room fell and struck plaintiff and seriously injured him. The' jury returned a verdict in favor of the plaintiff and assessed his damages at $2600 and the court rendered judgment upon such verdict.

It is first urged that the verdict is manifestly against the weight of the evidence. Appellee, who was injured on Saturday at.about eight o’clock in the morning, testified that on the previous Thursday morning he discovered a loose rock in the roof of his working place, and that afternoon told the mine manager that he needed eight-foot props and cap pieces in that room; that the mine manager told him “that is all right,” but that no props were delivered; that on the next afternoon he again demanded timbers of the mine manager, hut that upon reaching his room and on Saturday morning he found no props there, and that while he was shoveling coal in the car, the rock, which had not been propped in any way, fell upon him. •

One Guralski, a fellow miner, testified that he was in appellee’s room about thirty minutes after he was hurt, and that he did not see any props there, but that he did not just “exactly” look for any. William Swincsynski testified that after appellee was hurt he and others tried to lift the rock from him, and for that purpose looked for props but found none in the room.

The mine manager testified that on the morning of the accident he entered appellee’s room and found a dangerous rock there, and arranged with appellee and his buddy to take the rock down; that he inquired of them whether they had enough timbers, to which they replied they had plenty, and that he noticed a pile of timbers in the room; that after Ke heard of the accident he called two other men, Moody and Weineberger, and went to appellee’s room; that they found timbers there; that this was about an hour after appellee was injured. He was corroborated as to the presence of timbers in the room by Moody and Weineberger. The mine examiner testified that on the second night before the accident he saw the timber hauler unloading props in front of the room, and on the following night, being the night before the day of the accident, he saw eight or ten props in the room. The timber hauler testified that two nights before the accident he delivered a load of timbers to the room in question. It will be seen that the evidence was in sharp conflict, and that the .testimony of the greater number of witnesses tended to show the presence of props in the room at the time of the accident. The question was one of fact for the determination of the jury. While we think the evidence as we read it in the record, would as well have supported a finding to the contrary, we do not feel convinced after a careful examination of all the evidence, that the verdict was clearly and manifestly against the weight of the evidence.

It is insisted that appellee’s fifth given instruction was erroneous, for the reason that it authorized the jury in determining the amount of damages to be awarded, to take into consideration such future suffering in body and mind, and loss of health, if any, as they believed from the evidence he would sustain by reason of his injuries. In support of such objection it is contended that there is no evidence in the record rendering it reasonably certain that appellee would suffer or lose his health in the future. There was evidence that at the time of the trial the plaintiff had not recovered from his injury, and it necessarily follows that there, would be future damages to some extent. He testified that he could not at the time of the trial, which was more than two years after the injury, bend his knee more than two or three inches, and could not walk very far without a cane; that the injury had affected his head, and that he always felt some kind of a noise in his head, and could not hear well. Two physicians testified that the injury to appellee’s knee was permanent. In view of this evidence we are of opinion that it was not error to give the instruction in question. C. & M. E. Ry. Co. v. Ullrich, 213 Ill. 172. We think that the refused instruction offered by appellant was fully covered by appellant’s given instruction 15. We do not think the amount awarded appellee as damages can be said to he so grossly excessive as to warrant a reversal of the judgment.

We find no prejudicial error in the record, and the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Mary Campion, Appellee, v. City of Decatur, Appellant.
    1. Pleading—what not admitted by general issue. A plea of the general issue filed by a city in an action against it for injuries sustained upon an alleged street, does not admit the existence of such street and its control by such city.
    2. Evidence—what does not establish existence of public street. Held, that the evidence in this case did not show that the alleged street upon which the accident in question occurred was in fact a public street within the control of the city.
    Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    W. Nat Boggess, for appellant.
    LeForgee & Vail, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of ■ the court.

Mary Campion recovered a judgment for $1500 against the city of Decatur as damages for injuries sustained by her through the alleged negligence of the city in permitting the planks of a sidewalk over an alley which crossed an alleged public street known as Chisholm street or East avenue, to become worn and warped so that the plaintiff tripped and fell over the same. No evidence was offered by the defendant.

The ground relied upon for reversal of the judgment is that the plaintiff failed to prove that East avenue was a public street or that the alley in question was a public alley. It is insisted by the plaintiff that under the pleadings in the case it was not incumbent upon her to show that East avenue was a public street; that by pleading the general issue the defendant admitted that fact, and that if it had desired to controvert the question it should have done so by a special plea. In support of such position the case of C. U. T. Co. v. Jerka, 227 Ill. 95, is cited. True it is that it has been repeatedly held that the plea of not guilty does not put in issue the ownership of railway or street car lines or the cars operated thereon. C. U. T. Co. v. Jerka, 227 Ill. 95. We do not think, however, that such rule is applicable in cases of the present character.

In City of Bock Island v. Starkey, 189 Ill. 515, where one of the principal defenses presented under the plea of general issue was that the place where the alleged accident occurred was not a public street as to which the defendant was charged with any duty or responsibility, it is held that in order to charge a city with liability for a failure to care for an alleged public street, the dedication and an acceptance of the same must be proved. No formal act of acceptance is necessary, nor any record of such an act, but the evidence must show an acceptance of the street by those authorized to represent the public; that where there is no formal acceptance by the municipality and there is an attempt to prove an adoption of the street by the public authorities, an acceptance may be shown by the constant and general use by the public for a long time, or by the acts of public officers in repairing or keeping up the street, and the question thus becomes one of fact.

We are of opinion that there is not sufficient evidence in the record to establish the fact of the legal existence of a public street and alley at the place where the plaintiff was injured. To support such averment, the plaintiff offered and there was admitted in evidence a plat of record in the recorder’s office of Macon county, purporting to be a plat of Rolling Mill addition to Decatur, made by G-. L. Roring, surveyor, and upon which Bast avenue and the alley in question are shown as such. No record of any acknowledgment of said plat was, however, introduced in evidence, nor was there any evidence offered in connection therewith tending to show a dedication of the streets and alleys appearing thereon, or an acceptance of the same by the municipal authorities or by the public. We regard such plat as having no probative force. There was no evidence showing a long and continuous general use of the strip by the public as a street. A number of witnesses who had lived upon the alleged street for a number of years testified that it “was a public street.” Such statements were obviously but conclusions of the witnesses and entitled to no weight. It was not shown that the city had ever repaired or done work thereon. A witness called by the plaintiff testified that in the year 1907 he told Schneider, then a member of the city council, that ‘1 he had better fix the walk in question before some one got hurt down there, ’ ’ and that Schneider replied that he “was going to see that it was fixed soon.” The statement of a member of the city council, made under the circumstances shown, would in no way bind the city, and did not tend to prove the issue.

For the reasons stated the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Putekbaugh

text:
    E. B. Chapin, Appellee, v. Miles & Ricketts, Appellants.
    1. Estoppel—what essential to application. Before the doctrine of estoppel can be applied as between individuals it is essential that the party against whom it is invoked shall by words or conduct wilfully cause another to believe that a certain state of facts exists and thereby induce him to act thereon so as to change his previous condition by doing something detrimental to his interests.
    2. Landlord and' tenant—how lien enforced. A landlord merely by virtue of his lien on the crops of his tenant without the levy of a distress warrant has no right to take possession of such crops either before or after the rent is due. His remedy for fraudulent acts tending to impair the security of his lien is an action on the case; his lien vests him with no right in the property itself and will not enable him to maintain replevin, trover or trespass prior to the levy of his distress warrant.
    Action in case. Appeal from the County Court of Champaign county; the Hon. T. J. Roth, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Henry I. Green, for appellants. •
    Thomas J. Smith and C. B. Iungeeich, for appellee ; Bay & Dobbins, of counsel.
   Mr. Justice Putekbaugh

delivered the opinion of the cour

This is an appeal from a judgment for $290.98, rendered in an action in case by Chapin against Miles & Bicketts, to recover the value of a quantity of oats purchased by the latter from a tenant of the former. The declaration alleges in substance that the plaintiff leased a farm of which he was the owner, to one Hill, for a term expiring February 23, 1908, for the sum of $1130, which rental was secured by a note for that amount of even date with- the lease; that Hill raised a large crop of oats on said premises during said term; that the defendants, with the knowledge that Hill was a tenant under the plaintiff, and well knowing that said oats had been raised upon said premises, without the consent of plaintiff, bought and received from said Hill 1000 bushels of the same, and that said Hill defaulted in the payment of a part of the rent provided by the lease to be paid.

The defendants pleaded that while they purchased the oats in question from Hill, knowing that the same were raised by him on land rented by him of the plaintiff, in order to protect themselves they made inquiries of the plaintiff to ascertain from him whether he held a landlord’s lien on said, grain for the rent of said land, but that the plaintiff failed and refused to give them any information as to his rights in said grain or as to the amount of rent due from his said tenant, and evaded their questions, and that by reason thereof the plaintiff waived his lien upon the grain in controversy as to the portion purchased by the defendants, and was es-topped by his own conduct from asserting his claim against the defendants for any portion of the grain purchased by them, and that to permit the plaintiff to recover against the defendants, would be a fraud upon their rights. The plaintiff by replication denied that he had refused to give the defendants the information asked for and averred that he gave them all the lawful information required of him. At the close of all the evidence the court instructed the .iurv to find the issues for the plaintiff, which was accordingly done.

It appears from the uncontroverted evidence that on or about September 2, 1907, Hill delivered to the defendants at their elevator at Fisher, Illinois, about 708 bushels of oats .which had been raised by Hill on the farm of Chapin, and that the market value of the same at the time and place was 41 cents per bushel, and upon such price the verdict returned was based. Hill defaulted in the payment of the rent reserved, whereupon Chapin levied a distress warrant upon the corn and broom-corn found upon the premises, from the sale of which he realized all of the rent due except the sum of $458.27. The leading facts involved being practically uncontroverted, the only questions presented for determination are whether the plea of estoppel by words and conduct was established by the evidence, and whether the measure of damages was the price at which the defendant purchased the oats from Hill or that adopted by the trial court in its instruction. To sustain the first proposition, the defendants offered in evidence the following letters:

“Fisher, Illinois, Aug. 8, 1907.

“Mr. E. B. Chapin, Champaign, III.

Please state clearly your position in relation to the rent on your farm south of here now operated by Mr. W. E. Hill.

You are no doubt well aware of the fact that grain-dealers are liable to landlords for cash rent under certain conditions, and we are always desirous, therefore, of a perfect understanding in such matters.

We have absolutely no reason to doubt that your tenant will comply with every term of your contract with him, but we think that a business-like understanding in matters of this kind productive of harmonious relations between landlord, tenant and dealer.

Miles l& Ricketts. ’ ’

“Champaign, III., Aug. 12, 1907.

“Miles & Ricketts, Fisher, III.

Replying to your favor of 8th inst. will say in regard to the rent on the farm operated by Mr. W. E. Hill, that I waive none of my rights. E. B. Chapin.”

“Fisher, Illinois, Aug. 14, 1907.

“Mr. E. B. Chapin, Champaign, Ill.

Your favor of the 12th inst., at hand and contents very carefully noted, and in reply beg to state, we would like very much to know on what terms you have your farm rented to Mr. Hill, if for cash we would like to know for how much and when payments are due. We ask this as we have advanced considerable money to Mr. Hill, and we very much desire to protect you as well as ourselves. We are very glad to accommodate Mr. Hill, as long as we have any assurance of his ability to deliver enough of his own grain to meet all obligations. On account of the law holding us responsible for landlord’s rent we would thank you very much if you can see fit to co-operate with us in this matter and furnish us with the desired information. Miles & Ricketts. ’ ’

11 Champaign-, III., Aug. 16, 1907.

“Miles & Ricketts, Fisher, III.

Replying to your esteemed favor 14th inst., will say that I have nothing whatever to do with Mr. Hill’s individual financial affairs. I know nothing about his claims to credit, either favorably or unfavorably. My only relations with him are those of landlord to tenant. His rent is payable in December. Until it is fully paid I release nothing, but I stand on all my rights as landlord. E. B. Chapul”

“Fisher, Illinois, Aug. 19, 1907.

“Mr. E. B. Chapin, Channpaign, III.

Your favor of the 16th at hand, and contents very carefully noted, and in reply beg to state, you are failing to look at our correspondence in the right light; •we do not desire to know of you anything about Mr. Hill’s financial affairs, what we want to know is this how much rent does Mr. Hill owe you and when is it due. A man of your ability had ought to be able to see, even if he can’t, that it is quite impossible for us to protect him, when he will not give us the information to protect him on. Owing to the stand you have taken in this matter of refusing to furnish us with desired information, we in the future will be compelled to refuse to buy the grain from your, farm, inasmuch as you see fit to place all the liability on the grain man and will not give him your assistance. While we are only too glad to accept the responsibility the law places on us under ordinary circumstances, we cannot take the chances in cases like this, where the landlord will not co-opérate with us for his own good. We do not know whether Mr. Hill paid you part rent in advance, or whether he pays cash rent or grain rent, or when either is due nor how much. How can we protect either you or ourselves ?

Miles & Ricketts.”

“Champaign, III., Oct. 16, 1907.

“Miles S Ricketts, Fisher, III.

I am informed that W. H. Hill, or his employes, has delivered to you 800 bushels of oats from my farm. Kindly take notice that, as I have previously informed you, I do not release my landlord’s lien on these oats or any other products of my farm, and I hold you responsible for the oats and for any other of the products delivered to you. E. B. Chapin.”

The court properly sustained an objection to said letters on the ground that the same were immaterial and did not tend to prove any issue in the case. Before the doctrine of estoppel can be applied as between individuals, it is essential that the party against whom the doctrine is invoked shall by words or conduct wilfully cause another to believe that a certain state of facts exists, and thereby induce him to act thereon so as to change his previous condition by doing something-detrimental to his interests. Holcomb v. Boynton, 151 Ill. 294. The statements contained in the letters of the plaintiff quoted are substantially to the effect that he stood by and waived none of his rights as landlord. He was not bound to disclose the status of his rent account with Hill, and we are unable to see how his failure to do so could have misled the defendants to their disadvantage. On the contrary the effect of the same would be to advise an ordinarily prudent person that one purchasing the crops in question would do so at his peril.

No defense having- been established by the defendants, the action of the court in directing a verdict for the plaintiff was proper. We are of opinion, however, that the court erred in instructing the jury that the measure of damages in the event of a recovery by the plaintiff was the fair market price of the oats at the time the same were delivered by Hill to the defendants. A landlord merely by virtue of his lien on the crops of his tenant, without the levy of a distress warrant, has no right to take possession of such crops, either before or after the rent is due. His remedy for fraudulent acts tending to impair the security given by his lien, is an action on the case. His lien vests him with no right in the property itself, and will not enable him to maintain replevin, trover or trespass prior to the levy of his distress warrant. Finney v. Harding, 136 Ill. '573. Hill, the tenant, had a right at any time prior to the levy of a distress warrant, to sell the crops in question, at any price he saw fit, provided he acted in so doing without fraud and in good faith. There is nothing to show actual fraud in the present case, or a lack of good faith, in so far as the price at which the oats were bought and sold is concerned. The extent of recovery should therefore be limited to the amount actually paid by the defendant to Hill for the oats. It follows that the refusal of the court to permit the defendants to show the price they paid Hill for the oats was error.

It was not error to refuse to permit the defendants to show upon cross-examination of the-plaintiff what profit he realized upon such of the other crops as were purchased by him at public sale under the distress proceedings. The sale was judicial and open to all, and what the plaintiff realized, if anything, by subsequent sale of the crops purchased by him, was no concern of the defendants.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.