author: Mb. Justice Duncan

text:
    O. N. Gibson, Appellee, v. O’Gara Coal Company, Appellant.
    1. Pleading—when common counts sufficient. When a contract sued upon has been fully performed on the plaintiff’s part and nothing remains to be done under it except for the defendant to pay whatever money is due from him, the plaintiff has the election to declare specially on the contract, or generally in indebitatus assumpsit under the comment counts.
    2. Corporations—what not ultra vires. Reid, that a contract by a coal company for the services of a physician to treat one of its employes injured while working in its mines, was not ultra vires.

    3. Corporations—who cannot urge defense of ultra vires. A private corporation cannot avail itself of the doctrine of ultra vires when the contract has been in good faith fully performed by the other party, and the contract has had the benefit of the contract and the performance.

      Assumpsit. Appeal from the Circuit Court of Saline county; the Hon. W. N. Butler, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    William S. Hepeeran and M. S. Whitley, for appellant.
    Abney & Burnett, for appellee.
   Mb. Justice Duncan

delivered the opinion of the court.

Dr. Gibson, the appellee, began this suit in assumpsit against appellant on March 12, 1908, for medical attendance, advice and medicines furnished the employes of the defendant in its coal mines at Eldorado, during the years 1906 and 1907.

It is contended by the appellee that his services were rendered to the injured employes in pursuance of a letter of Harry Thomas, the defendant’s general superintendent, to A. 0. Dale, bookkeeper and paymaster for the defendant, directing him in the latter part of the year 1905 or the early part of 1906, in case of injuries to any employes of the defendant at its Eldorado mines to call Dr. Gibson to attend them; and, that within a very few days after receiving this letter, Dale saw the plaintiff and spoke to him about attending professionally upon such employes as might be injured in these mines, and exhibited this letter to him and he read it. After reading this letter the plaintiff rendered the services sued for at the call of superior servants of the defendant. On November 25, 1907, one Lon Pelhank, mine boss of defendant, informed the plaintiff that thereafter his services would be limited to emergency or first calls, and that the defendant would not pay for treatment except for first visits. Plaintiff insists this was his first notice that his treatment of these employes would be limited by defendant to first visits, and that all services sued for were rendered by him before this notice.

Defendant does not deny that it is liable to the plaintiff ; buj; insists that it is only liable for first visits; and that the plaintiff was informed at the beginning of these services by this letter, and by the parties first calling him, that the company would only pay for first visits.

The declaration contained only the common counts for medical attendance, medicines, etc., provided by plaintiff for employes of the defendant at its request, etc. The general issue was filed thereto and issues joined, and the trial was, by agreement, before the court without a jury, the defendant to be permitted to introduce all evidence under the general issue that would be admissible under any pleas properly pleaded. Judgment was rendered by the court in favor of the plaintiff for the sum of three hundred and forty dollars and the costs. From this judgment the defendant appeals to this court.

The errors relied on by the appellant are, (1) that the declaration should have counted specially on this contract, that the evidence was not admissible, and that the suit could not be maintained under the common counts alone; (2) that the judgment is contrary to the law and the evidence; (3) that the judgment is excessive.

First. It is true that it would have been proper for the plaintiff, had he seen fit to do so, to have counted specially on this contract. So long as the contract continues executory, the plaintiff must declare specially. When, however, as in this case, the contract has been fully performed on the plaintiff’s part, and nothing remains to be done under it except for the defendant to pay whatever money is due from him, the plaintiff has the election to declare specially on the contract, or generally in indebitatus assumpsit under the common counts. The contract and all evidence of performance thereof was properly admitted in evidence, and a recovery was rightly allowed, under the declaration. The authorities on this proposition are numerous and the principle is elementary. Throop v. Sherwood, 4 Gilman, 92; Lane v. Adams, 19 Ill. 167; Sands v. Potter, 165 Ill. 397; Union Elevated R. R. Co. v. Nixon, 199 Ill. 235.

Second. We do not think that the contract in question is void on the doctrine of ultra vires. It is assumed by the defendant that this coal company had no rights under its charter to contract for services of a physician in the treatment of its employes for injuries received while working in its mines. The only proof bearing on that question in this record is that the defendant is a corporation mining coal. What its chartered powers are is not in proof. Assuming, however, that no such explicit powers were given it by its charter, it would be going very far to hold that a corporation, for the purpose of mining coal simply, would not have the right and power to choose and hire a physician to treat men injured in its employ. It is most certainly liable to the employes for necessary physician’s bill in an action for an injury caused by the negligence of the company. If then it is liable in such cases for such bills, it certainly will not be contended that in such cases it cannot bind itself for such services to a physician of its own selection, when the employe being treated accepts such treatment. We think such a contract would be within its implied powers. If so the duty to determine when and in what cases it would be liable for the physician’s bill, would rest on the coal company, and not on the physician; and for any employment of a physician by it to treat its injured employes, the company would be liable to the physician although it might afterwards appear that the employe was not injured by the coal company’s negligence. Our Supreme Court, however, has decided that corporations may incur such a liability although their charters may not in terms authorize it and further discussion is unnecessary. T. W. & W. R. R. Co. v. Rodrigues, 47 Ill. 188; Indianapolis & St. L. R. R. Co. v. Morris, 67 Ill. 295; C. & St. L. R. R. Co. v. Mahoney, 82 Ill. 73.

The burden of proof is upon the party pleading ultra vires. Chicago Pneumatic Tool Co. v. Johns Mfg. Co., 101 Ill. App. 349; Same v. Munsell, 107 Ill. App. 345.

Again, a private corporation cannot avail itself of the doctrine of ultra vires, when the contract has been in good faith fully performed by the other party, and the corporation has had the benefit of the contract and the performance. Darst v. Gale, 83 Ill. 136; Bradley v. Ballard, 55 Ill. 413.

The defendant made no attempt to prove that the defendant had no chartered rights or powers to employ a physician in this case; and, if it had not such rights and powers, it is now estopped to make such a defense, having received all the benefits of this contract fully performed on the part of the plaintiff.

Third. What we have already said virtually settles the contention of the defendant that the judgment is excessive. It was a controverted question as to whether or not the defendant called the plaintiff to treat these employes generally, or only for the first emergency treatment. The evidence of the plaintiff sustains this judgment and we have no right to change it, even if our opinion on the weight of the evidence differed from that of the lower court. A corporation is bound by the acts of its general superintendent in' authorizing or ratifying the calling of a physician to furnish medical or surgical aid to employes injured in its employment; and the courts will presume that all the professional visits made by him are necessary, he being the proper judge of the necessity and frequency of his visits. It is also a rule of law,, that the employment of a physician or surgeon continues in the absence of stipulation to the contrary, as long as professional attention is required. Ebner v. Mackey, 186 Ill. 297; and other authorities above cited.

The court properly ruled on the questions of law submitted to it by the defendant, and perceiving no reversible error in this record, the judgment of the lower court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    Fred Rink, Appellee, v. St. Louis Southwestern Railway Company, Appellant.
    1. Railroads—degree of care required at public crossings. The degree of care required of railroads at public crossings depends upon the facts and circumstances of each particular case, and is peculiarly a question for the jury.
    2. Contributory negligence—what not, as a matter of law. Failure to look and listen before crossing a railroad track cannot be said in every case to be negligence as a matter of law.
    3. Instructions—must not invade province of jury. An instruction is properly refused which invades the province of the jury.
    4. Instructions—when sufficiently specific upon question of negligence. An instruction which tells the jury that if they believe from the evidence that the plaintiff has proved his case as laid in the declaration they will find the issues for the plaintiff, is not subject to objection.
    5. Trial—what papers should not be talcen by jury upon retirement. The pleadings should not be sent out with the jury with their instructions.
    Action in case. Appeal from the City Court of .East St. Louis; the Hon. Mortimer Millard, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    L. 0. Whitnel, for appellant; S. Ii. West, of counsel.
    D. J. Sullivan, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

This is an action in case brought to the City Court of East St. Louis by appellee against appellant, to recover damages to his team of horses and harness which were struck by one of the defendant’s passenger trains, September 27, 1906, at a crossing of the public road leading from East St. Louis to Madison and the Merchants’ Bridge Terminal Railway Company’s tracks on which the defendant’s train was then running. There was a trial by a jury, resulting in a verdict and judgment for appellee for $75.

The negligence charged in the second and third counts of the declaration upon which the case went to the jury is, in substance, that the defendant so negligently and carelessly ran its train of cars over said crossing, at a high rate of speed, without ringing a bell or blowing a whistle, and without notice of its approaching the crossing, that said train was. driven against plaintiff’s team, etc.

Counsel for defendant insists that the evidence is not sufficient to support the verdict and judgment, and made the proper motions in apt time to exclude the evidence and direct a verdict of not guilty. He also contends that the court erred in refusing to give certain instructions for the appellant; and in giving certain others for the appellee.

We have examined the evidence in this record with great care, and find that it fully supports the plaintiff’s declaration. The driver of appellee’s team testified that he stopped about twenty feet before reaching this crossing to look to see “if there was anything coming; ’ ’ that he saw a switch engine pushing a string of fiox cars on the east track of the three tracks on this crossing; that there "was a man sitting on the wheel on top of the first car, that he took to be a brakeman, who beckoned to him to come on; that he whistled to the brakeman to see if the brakeman meant him, and that he was again signaled by the brakeman to come on and he then started across and was struck while crossing. He also denies that he and the other boy with him were rolling cigarettes or scuffling in the wagon and were not watching as the train approached him. The evidence also clearly shows that there were three tracks of this railroad on this crossing and that there was a long string of box cars between the driver and the passenger train and that he could not see this train for quite a ways until almost on the track. The conductor testifies that this was a dangerous crossing. The evidence for the plaintiff was that the train was running about twenty-five miles an hour and did not ring any bell or give any warning until within a few feet of the team. The evidence of the defendant was confined to proof tending to show that the train crew were not negligent in any way, and that they were running ten tó twelve miles an hour; and that the bell had been kept ringing by an automatic ringer from the time they left Union Station, St. Louis, until they hit the team, and that these boys were playing and paying no attention to the train. No one of the switching crew on this crossing that morning was sworn. The witnesses were about equally divided on the contested points. In this state of the evidence it is proper that the jury should finally determine as a matter of fact whether the plaintiff’s driver was guilty of contributory negligence; and, also, the further question of whether or not the defendant was guilty of the negligence charged in the declaration. Failure to look and listen before crossing a railroad track cannot be said in every case to be negligence as a matter of law. There may exist many circumstances excusing such failure. So also the degree of care required of the railroad company at public crossings depends upon the facts and circumstances of each particular case, and is peculiarly a question for the jury. Dukeman, Admr., v. C. C. C. & St. L. Ry. Co., 237 Ill. 104; I. & St. L. R. R. Co. v. Stables, 62 Ill. 313.

There was no error committed by the court in refusing to give the defendant’s instructions, numbered 7, 9 and 10. Instruction No. 7 invades the province of the jury, by telling them- that if the bell was rung and the whistle was sounded, for the distance required by the statute before reaching the crossing, and that the persons on the engine were keeping a lookout for persons who might be on said crossing, that then the plaintiff has failed to prove the defendant guilty of negligence as charged. This instruction omitted the question of the speed of the train in determining the question of the defendant’s negligence, and did not require the jury to find that defendant’s servants were exercising reasonable diligence in looking out for persons on the crossing. The instruction put it as sufficient if they were looking out, etc., without regard to what diligence they were using in that regard. The substance of instructions Nos. 9 and 10 was given in other instructions, and the court very properly refused to repeat them.

The only objection raised to the plaintiff’s instructions is that some of them merely contain the direction to the jury, “If you believe from the preponderance of the evidence that the servants in charge of the defendant’s train were guilty of negligence,” etc., “as alleged in the second and third counts of the declaration,” without pointing out more definitely the acts of negligence to which they refer. The Supreme and Appellate Courts have many times held that an instruction telling the jury that if they believe from the evidence the plaintiff has proved his case as laid in the declaration they will find the issues for the plaintiff, not to be objectionable. C. & J. Elec. Ry. Co. v. Patton, 219 Ill. 214; Chicago City Ry. Co. v. Poster, 226 Ill. 288; C. & A. Ry. Co. v. Howell, 109 Ill. App. 551; C. R. I. & P. Ry. Co. v. Cleveland, 92 Ill. App. 308.

The true rule is stated in the two appellate court decisions at the respective pages above cited, to the effect that when the declaration does not aver all the necessary elements upon which a verdict for the plaintiff must be predicated, then such an instruction is erroneous, unless the instruction submits to the jury for their finding the element lacking in the declaration. In other words before any instruction can be sustained, which directs a verdict for the plaintiff upon making certain findings from the evidence, all the necessary ultimate facts upon which a finding is to be made for plaintiff, must be submitted to the jury for their finding. If any ultimate fact, the finding of which is nécessary to plaintiff’s recovery, is not averred in the decíaration, then the instruction must submit this fact for the finding of the jury, if it directs a verdict for the plaintiff, or it must be held to be error. The better and safer practice for a plaintiff’s attorney to follow in suits of this character is to state in an instruction in clear and succinct language what are the material averments in the declaration, and then to further state clearly and unequivocally that if the jury find from the greater weight of the evidence that these averments are proved, that then the plaintiff has established his right to recover. The pleadings should not be sent out with the jury with their instructions. The Supreme Court has condemned this practice of submitting the pleadings to the jury with their instructions, and particularly without first having told the jury what are the real issues in the case. Elgin, A. & S. Traction Co. v. Wilson, 217 Ill. 47. The defendant in this case, also, had the right to submit instructions telling the jury in unmistakable language what averments the jury must find to be proved before the plaintiff could recover. Failing to do this, it cannot now complain that the jury may not have understood the issues clearly. It is the duty of both parties to aid the jury to fully comprehend the issues. Perceiving no error in the record, the judgment of the lower court is affirmed.

Affirmed.


author: Mr. Justice Shirley

text:
    Frank P. Willard, Appellant, v. Red Bank Oil Company et al., Appellees.

      Torts—who not liable as joint tort-feasors. Held, that the acts of each of the defendants in this case in allowing the escape of oil were separate ana independent and without any connection with the acts of the others, and that such acts being several when committed, could not become joint because of the consequences which followed.

      Action in case. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Fithian & Kasserman and I. D. Shamhart, for appellant.
    John E. Brown, Frank T. O’Hair, W. W. Arnold and Eugene Maokey, for appellees; Callahan, J ones & Lowe, Parker & Crowley, Parker & Newlin, Gee & Barnes, E. W. McArthur, George J. Wolf, Condo & Browne, McCarty & Arnold and Mackey & Scully, of counsel.
   Mr. Justice Shirley

delivered the opinion of the court.

This was an action of trespass on the case instituted by appellant against appellees, comprising thirteen different firms and corporations engaged in operating oil wells in the vicinity of appellant’s lands.

It was averred in the declaration that appellant was possessed of two hundred acres of land, the surface of which was low and flat; that appellees were operating oil wells on lands near and lying above the land of appellant and having drainage across the same; that it became the duty of appellees to properly care for and consume the waste oil which they caused to be brought to the surface so it would not flow upon the land of appellant. That notwithstanding their duty they negligently permitted the oil from their premises to accumulate on the same and to' spread over the surface thereof; that by reason thereof at divers times large quantities of crude oil were carried by water falling upon the lands of appellees down upon the land of appellant and spreading over it, greatly damaged it. Appellees each interposed a plea of the general issue. A jury was selected to try the cause, and upon the close of all the evidence for appellant, the court on motion of appellees gave an instruction to the jury to find each of them not guilty. The jury returned a verdict as instructed.

It appears from the testimony of the witnesses that some two years prior to the bringing of this suit, the several appellees began to operate oil wells on lands in the vicinity of the land of appellant, ranging therefrom a distance of one and a half to four miles. All of these wells were tributary to a stream called Big Creek which flowed through the lands of appellant. Some of the wells were flowing wells and some were not. In some cases there were not sufficient tanks to hold the oil and it would flow out upon the ground and find its way into adjacent streams and in other cases dams and ponds were made to hold the oil from where it would escape. The wells of appellees being above appellant’s lands, when the rains came, the escaped oil would wash into the valley of Big Creek and thence down upon appellant’s lands and settling there cause serious injury to the soil, destroying vegetation upon it, and rendering it unfit for cultivation. How much of the oil causing the damage came from the operations of each appellee is not shown, and from the nature of the case, cannot be shown, and the particular acts of appellees in permitting the escape of oil were done by each independently of the other and without concert of action. As part of the evidence there was also a stipulation of the parties as follows:

“It is agreed between plaintiff and defendants that each of the separate defendants operated, during the time mentioned in the declaration, its several leases, wells, tanks and other properties, separately and independently, not concurrently, and without concert with any of the other defendants or either of the other defendants, or any other parties, and that neither defendant has had anything to do with any of the operations of the other defendants, if the word concurrently is not given the meaning contemporaneously. ’ ’

One of the errors assigned is that the court erred in giving to the jury the peremptory instruction on mgtion of appellees to find them not guilty, and this presents the question whether under the evidence including the above stipulation, the action will lie against the appellees as joint tort-feasors.

“Where one has received an actionable injury at the hands of two or more wrongdoers, all, however, numerous, are severally liable to him for the full amount of damages occasioned by such injury, and the plaintiff in such action has his election to sue all jointly or he may bring his separate action against each or any of the wrongdoers.” W. St. L. & P. Ry. Co. v. Shacklet, 105 Ill. 364, 381.

' “Persons who act separately each causing a separate injury cannot be made jointly liable even though the injuries thus committed are all inflicted at one time.” Shearman and Bedfield on Negligence, par. 123.

These general rules are elementary in common law actions but in their application to individual cases, it is sometimes difficult to determine whether the parties charged have acted separately so as to make them severally and not jointly liable, or whether they have united in causing a single injury even though acting independently of each other.

In W. St. L. & P. Ry. Co. v. Shacklet, Admx., supra, cited and relied upon by appellant, the injury complained of was caused by a collision between a train of the said company and that of another railway company, whereby "the deceased who was riding on the engine of the latter company was killed. It was held that the right to recover was not confined to the company upon whose engine the deceased was riding, but that the suit could be maintained against the W. St. L. & P. Ry. Co. if its negligence contributed to the injury and the deceased was in the exercise of ordinary care. In the opinion the general principle hereinbefore quoted is laid down but it is further announced that the question of joint liability is not before the court, and any discussion of it is declined.

The Con. Ice Mach. Co. et al. v. Keifer, Admr., 134 Ill. 481, was a suit against the machine company and a brewery company. The machine company was to erect a tank for the brewery and the brewery was to furnish and put in the supports. When the supports were completed, the machine company told the brewery company they were insufficient and would not support the tank and the brewery company replied they would do. By reason of the insufficient supports, plaintiff’s intestate was killed and it was held to be the duty of each of the defendants in the performance of their several parts of that work, to use reasonable care to avoid injury to the servants of either and to third persons, and that they came within the rule of concurrent negligence of two persons, and a judgment against both defendants was upheld.

In the case of Economy Light and Power Co. et al. v. Hiller, 203 id. 519, cited by appellant, both defendants maintained poles and electric wires in the streets; the wires of one crossing above the wires of the other. The charged wire of one defendant dropped upon the wire of the other and coming in contact with it caused the injury. It was held under such circumstances to be the common duty of each defendant to the public to protect its wires from such contact, and a failure to do so resulting in injury showed a concurrent neglect for which they would be jointly liable. It is further said that one is never liable for the wrong of another and if their acts are entirely distinct and separate, there cannot be joint liability. Citing Teazel v. Alexander, 58 Ill. 254; O. & N. W. Ry. Co. v. Scates, 90 id. 586.

Teazel v. Alexander, supra, was where the several owners of Texas cattle drove their respective cattle over the herding ground of another at different times, and by reason thereof through one or the other or both of such droves disease was imparted to the owner ’s cattle. It was held there was no liability and that there could be none without the parties acted in concert or that their conduct naturally produced the acts which resulted in injury. It was further held that in cases of injuries by animals owned by different persons, there must be a joint interest iu the property or concert in its use or management or there can be no joint recovery. The same principle is announced in C. & N. W. Ry. Co. v. Scates, supra.

It will be seen in the cases cited that the- g’eneral principles of law applicable to joint tort-feasors are not difficult, but the difficulty lies in their application to the facts.

It might be contended that some of the cases cited are similar to this in principle, yet the facts and circumstances are entirely dissimilar. While the question of the joint liability for flooding land by the several acts of different owners, has not, so far as we are aware, been considered by the courts of this State, it has been in the courts of sister States.

In Miller v. Highland Ditch Co., 87 Cal. 430, where several persons acting separately and maintaining different ditches whereby waters are turned into a canyon and there commingling, pass through the canyon and flow over the plaintiff’s lands, covering it with sand and debris, it was held there could be no recovery against them jointly. To the same effect are Blaisdell v. Stephens, 14 Nev. 17; Chipman v. Palmer, 77 N. Y. 51.

“Persons who deposit filth in a stream at different points cannot be made joint defendants in a suit for damages but each must be sued separately, and recovery can be had against him for only his proportion of the total injury.” Martinowsky v. Hannibal, 35 Mo. App. 70. ■

“Persons who independently and without co-operation or concert of action turn surface water into a drain to the injury of a lower proprietor, cannot be made jointly liable as joint tort-feasors.” 109 Ky. 64.

“A person polluting a watercourse is liable in damages only for his own act and not for that of any others who may contribute- to the injury. If others have contributed Ms deposit must be separated! by means of the best proof the nature of the case affords and his liability ascertained accordingly.” 2nd Farnham Waters 1716; Seeley v. Alden, 61 Pa. St. 302; Chipman v. Palmer, 77 N. Y. 51.

We are of opinion that the acts of each of the defendants in allowing the escape of oil upon its own premises was separate and independent and without any connection with the acts of others and being a several act when committed it cannot be made joint because of the consequences which followed in connection with others who had done similar acts, and while it is true' it is difficult or impracticable to separate the injury, that is no reason why one of the defendants should be liable as a joint tort-feasor (among whom there is no contribution) because of the consequences which followed the acts of others who have not acted in concert^, with it.

The weight of authority sustains the action of the trial court in directing the jury to find each defendant not guilty and it will therefore be unnecessary to consider the other errors assigned.

The judgment of the Circuit Court will be accordingly affirmed.

Affirmed.


text:
    M. C. Hill, Appellant, v. Illinois Central Railroad Company, Appellee.
    Common carriers—when merchandise cannot he stopped in transit. If the sale to the consignee is complete, the consignor has no right to divert the shipment except in the -case of the insolvency of the consignee.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Union county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.

      William D. Lyerle, for appellant.
    W. W. Barr and Charles E. Feirigh, for appellee; J. M. Dickinson, of counsel.
   Mr. Justice Shirley

delivered the opinion of the court.

This cause originated before a police magistrate and on appeal to the Circuit Court, a jury was waived and upon a trial the court found the issues for appellee and gave judgment against appellant for costs. To reverse this judgment, this appeal is prosecuted.

The appellant was engaged at Cobden in the business of buying and selling fruits and vegetables in car lots. On the evening of July 20, 1907, he had a car of tomatoes on the track of appellee at Cobden for shipment, and after communicating with one E. B. Hayes, of Topeka, Kansas, a commission merchant, he on the same evening billed the car and consigned it to Hayes at Topeka. The car left Cobden on its way about eight o’clock the same evening.

On the morning of July 22nd, as the testimony shows, appellant received from Hayes what is called a bank guaranty for three hundred dollars which was for some reason not satisfactory to him. He then offered to sell the car of tomatoes to a firm in Kansas City on terms more satisfactory and they accepted his offer. He then ordered the agent of appellee at Cobden to divert the car from Hayes, Topeka, Kansas, to the Kansas City firm at Kansas City. The appellee failed to divert the car as ordered and it was delivered to Hayes, the consignee, at Topeka.

The testimony further shows that appellant cashed the bank guaranty for three hundred dollars received from Hayes and never receiving any more in payment for the car, he claims to have lost the sum of one hundred and seventy-nine dollars and five cents, the difference between the value of the tomatoes at the price to be paid by Hayes and the amount of the bank guaranty.

If the original transaction between appellant and Hayes was not a completed sale to the latter, it became so by appellant cashing the bank guaranty which he had received from Hayes. This amounted to a ratification of the sale. There is no evidence of any restrictions upon appellee respecting the consignment to Hayes.

This being so appellant had no right to divert the shipment and no further right respecting it except the right of stoppage in transitu in case of the insolvency of the consignee of which there was no proof. Hutchinson on Carriers, par. 413; Shaw v. Lady Ensley Coal Co., 147 Ill. 526.

The finding and judgment of the Circuit Court was right and is affirmed.

Affirmed.


text:
    F. J. Raddle, Appellant, v. Conrad Lindemann et al., Appellees.

      Contracts—option defined. An option is defined to be “a right acquired by contract to accept or reject a present offer within a limited or reasonable time in the future.” Held, that the contract in question in this case was not one conferring an option, but, upon the other hand, was one creating an agency to sell.
    Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed and remanded.
    Opinion filed November 13, 1909.
    Maurice V. Joyce and A. B. Garrett, for appellant.
    Dan McGlynn, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

This cause originated before a justice of the peace. Upon appeal to the City Court of Bast St. Louis, there was a trial by jury. After the introduction of the evidence, the court gave a peremptory- instruction to return a verdict finding the issues for appellees. Upon such verdict, there was a judgment from which appellant appealed.

The suit was instituted by appellant against appellees to recover damages claimed to have been sustained by the wrongful taking and removal of a stone foundation from certain lots described as Nbs. 21 and 22, block 3, of the first subdivision of part lot 29, of Prairie Du Pont Common Fields, in St. Clair county.

The facts about which there is no controversy show that appellee, Conrad Lindemann, with George and W. C. Lindemann and Catherine Dyroff were the owners of a tract of land in said county, and on December 26, 1905, they entered into an agreement in writing with one L. Beauman wherein it was agreed that they would plat and subdivide the tract into lots for business and residence purposes with streets and alleys. Beauman agreed to take exclusive charge of the property and make reasonable efforts to sell' it either as a whole or in parcels and out of the proceeds pay the owners $800 per acre for high land and $400 per acre for low land and in case of dispute as to classification ,o be settled by arbitration. The payments to the owners were to be made within twenty-four hours after Beauman received the cash if demanded, and that notes were not to be considered as cash. It was further agreed that all proceeds derived over the amount specified to be paid the owners should be retained by Beau-man for his commissions and upon payment to the owners for a parcel of land they would execute and deliver to the purchaser a deed. It was further provided that in a settlement between the parties, the owners should receive the same pay per acre for the streets and alleys as they were to receive for the lots and parcels adjoining.

There were further provisions for the extension of the agreement; the right to reserve hy the owners two lots each to he selected hy them; a restriction upon the right of Beanman to sell any parcel without a cash payment of at least ten per cent and the exclusive right to Beanman to construct upon the streets and alleys poles and electric wires, also water, sewer and gas mains and to have exclusive control thereof.

The agreement was filed for record December 24, 1906, and the above recital sets forth its material terms.

On November 12, 1906, Beanman executed to appellant a bond for a deed to said lots 21 and 22 and also lots 15 and 16, all in block 3 of said subdivision, whereby Beanman agreed upon the payment by appellant of $550 cash and $500 on August 12, 1907, with interest, to convey to appellant by deed of warranty the lots. Appellant paid the consideration according to the terms of the bond and on the 13th of September, 1907, received from the owners who executed the agreement to Beauman a warranty deed conveying to him the said lots.

• At the time of the execution of this bond, the stone foundation above referred to was on lots 21 and 22, and there is no evidence that at the time the bond was executed to Raddle he had any notice that any person other than the owners of the land claimed to own the stone. Appellant testifies he had no such notice.

After the execution of the bond and before the deed from the owners was executed to appellant, appellee Dumont removed the stone from the premises.

■ It appears Dumont’s claim to the stone arises from the following facts. Prior to the execution of the bond for deed to appellant above mentioned (about June 6, 1906), appellee, Conrad Lindemann, moved away the house that rested on the foundation and sold the stone to one Defreene, who, in June or July of the same year, sold the stone to appellee Dumont. Dumont moved it away in June or July, 1907.

Whether the agreement of December 26, 1905, between the Lindemanns and Beauman, the substance of which is above set forth, was an option to Beauman or whether the effect of it was to create in him an agency to sell the lots, is a material question to be determined.

An option is defined to be ‘ ‘ a right acquired by contract to accept or reject a present offer within a limited or reasonable time in the future.” Am. & Eng. Ency., 2nd Ed., 924.

An option is a contract by which the owner of property agrees with another person that he shall have the right to buy his property at a fixed price within a certain time. He does not sell his land. He does not then agree to sell it; but he does sell something, viz.: the right or privilege to buy at the election or option of the other party * * *. A contract must be supported by a consideration whether it be the actual sale of lands on agreement to sell, or the actual sale of the right to demand the conveyance of lands.” Ide v. Leiser, 24 Am. State Reports, 17.

There is nothing in the agreement giving Beauman the right to purchase the property himself; it simply authorizes him to sell at a fixed price under a certain classification and when so sold the owners agree to execute deeds to the purchasers, and for his compensation Beauman is to receive all over the fixed price he is able to get by way of commission less the value of the streets and alleys to be determined on settlement with Beauman.

It cannot be doubted that the owners would be compelled to perform all contracts made with others by Beauman "within the scope of the agreement.

The agreement does not come within the definition of - an option, but is clearly one which constitutes Beau-man the agent of the "owners for the sale of the-property. This being true, the bond for deed executed by him to appellant on November 12, 1906, was in effect the bond of the owners, the Lindemanns and Catherine Dyroff, and when they executed a deed to appellant which they did, it related back to the date of the bond and conveyed the title and the property as it was at the time the bond was made. Snapp v. Peirce et al., 24 Ill. 156; O’Neal v. Wabash Av. Bap. Ch. et al, 48 id. 349.

At the° time of appellant’s purchase and taking the bond for a deed the stone was on the premises in the foundation and was a part of the realty, and there is no evidence of any notice to him of the claims of others. This being so appellant was entitled under his bond for deed, as against the owners who executed a bond by their agent Beauman, to the stone and the fact that after receiving his bond for a deed and before final payment and receiving a deed, he had notice of the claims of others to the stone, did not affect his right to the property as against appellee Lindemann as it was when he purchased and received his bond.

The testimony shows that appellee Dumont purchased the stone from Defreene prior to the execution of the bond for deed which bond was never recorded and that Dumont had no notice of any claim of appellant. Defreene had purchased from appellee Lindemann who with the other owners were in possession then and also at the time Dumont purchased and we are of opinion that Dumont was not liable to appellant and the court did not err in instructing the jury to find the issues for him.

The stone being a part of the realty at the time the bond for deed was executed, appellant had the right to have it as against Lindemann without regard to any disposition appellee Lindemann had made of it and if the stone was not delivered to appellant he should be compensated.

The deed executed to appellant by appellee Lindemann and his co-grantors, was a warranty deed in statutory form and was equivalent to a deed with full covenants. The obligation of the covenantors was joint and several and appellant might elect to sne one or all. He had the right in his action before a justice of the peace to recover the value of the stone from appellee Lindemann for a breach of the covenant and the court erred in instructing the jury to find the issues for appellee Lindemann.

The judgment will be reversed and the cause remanded as to appellee Lindemann and affirmed as to appellee Dumont.

Reversed and remanded.


text:
    George W. Hunter, Appellee, v. A. J. Hanson, Appellant.

      Evidence—how proof of whereabouts of party made. It Is not competent to prove the whereabouts of a party at a particular time by testimony as to the fact that a letter had been received from him from a particular place at such time. The letter itself, with the envelope and postmark, should be introduced.
    Foreclosure. Appeal from the Circuit Court of Williamson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Clemens & Slater and Pillow, Smith & Stone, for appellants.
    Ed. M. Spiller, for appellee.
   Mr. Justice Shirley

• delivered the opinion of the court.

On September 15, 1905, the appellee, in consideration of one dollar, gave to Puckett, Hanson & Co. an option to purchase a farm of one hundred and fourteen acres in Williamson county at the price of one hundred and twenty-five dollars an acre to be paid as follows: One thousand dollars October 5, 1905; four thousand dpilars January 1, 1906, and balance on January 1, 1907, to be secured by note and mortgage at seven per cent interest. Appellee was to convey by good and sufficient deed subject to a decree of two thousand dollars to two thousand five hundred dollars, and also to a lease.

When this option expired on October 5, appellee gave an extension for thirty days on condition Puckett, Hanson & Co. would pay and discharge the above decree by October 7.

On the back of this option and extension appears an assignment of all rights thereunder to A. J. Hanson by T. Gr. Puckett. On November 4, 1905, appellee and wife entered into a written agreement with appellant, A. J. Hanson, reciting that in consideration of fourteen thousand two hundred and fifty dollars to be paid, one thousand cash the receipt of which was acknowledged, two thousand dollars, March 1,1906, the last two thousand dollars to draw interest at seven per cent from January 1 to March 1, 1906, and the balance of purchase money to be paid January 1, 1907, they agreed to convey by good title to appellant Hanson the one hundred and fourteen acres, describing it. In this agreement appellee and wife reserved the surface of twenty acres where the dwelling house stood on the south side of the south forty, and if the one-half acre comprising a graveyard should not be in the twenty acres, it was reserved.

On the back of this agreement which was signed and sealed by all the parties to it was an acknowledgment of the receipt of five hundred dollars by appellee and an extension on the remainder of two thousand dollars due January 1, until January 8, 1906.

Prior to the execution of the above agreement on November 4, 1905, appellee and wife had conveyed to one C. E, McClintoek a strip of surface along the entire west side of the premises described in the agreement, for a right of way for the Missouri Pacific Railroad Company. This deed of conveyance was recorded on the records of Williamson county October 23,1907, and was not mentioned in any of the agreements above set forth between the parties.

When the deferred payment of two thousand dollars of March 6, 1906, came due, Hanson made default and appellee, on March 9; notified him and requested payment in twenty days; and also that he had deposited in bank a warranty deed to the premises with instructions to deliver it upon the payment of the two thousand dollars due March 6, with interest, and execution by Hanson of a note and mortgage for a deferred payment of nine thousand two hundred and fifty dollars, and that if Hanson failed to make payment in twenty days, the agreement would be forfeited.

On March 28, following, Hanson sent a written notice to appellee and wife stating he had examined the deed and that it was in violation of the agreement; that he had not described all the land; that he had sold the fifty feet hereinbefore described; that appellee could not make him a conveyance according to the agreement and that he was damnified; that he had legal advice and had concluded in order to avoid litigation relating to the execution and delivery of the deed, to make payment of the two thousand dollars and interest and take up the deed and leave the mortgage (which is the one here foreclosed) for the remainder of the purchase money.

The notice further stated Hanson was not releasing appellee from any damages resulting from appellee failing to convey all the land described in the agreement and that he would assert his rights in the premises.

This deed as a matter of fact excepted the fifty-foot strip conveyed as hereinbefore stated by appellee and wife to the Missouri Pacific Bailroad. Company and Hanson did pay the money, take up the deed, and execute the mortgage.

Hanson made payment of the two thousand dollars and interest and executed' the note and mortgage but before signing the note and to prevent appellee from transferring it, he changed it by inserting “This note is non-negotiable and void in the hands of third parties.” Appellee refused the note so changed; filed a bill to cancel the deed which was not. finally tried as the matter was adjusted by executing a note with the above words eliminated.

The note is for the sum of nine thousand two hundred and fifty dollars, bears date of March 1, 1906, is payable January 1, 1907. The deed executed by appellee and received by Hanson conveying the premises, and the mortgage executed by Hanson to secure the above described note excepted the fifty-foot strip of ground conveyed as hereinbefore stated by appellee and wife to the Missouri Pacific Railroad Company.

In December, 1906, the “Uncle Sam Coal Co.” was incorporated by Hanson and others and on the 17th of the same month Hanson conveyed to the company the lands described.

Default being made in payment of the note of Hanson, appellee filed his bill in this cause to foreclose the mortgage making Hanson, Uncle Sam Coal Co. and other defendants, parties. Hanson answered the alleged breach of appellee in failing and refusing to convey by his deed to him the fifty-foot strip- as he agreed to do by his option contract and extension, and sought to recoup the damages claimed for the breach. The other defendants to the bill made default. Upon a hearing the chancellor found the equities against Hanson and in favor of appellee and rendered a decree for foreclosure as prayed, from which Hanson appeals.

The cause was heard upon the testimony of the witnesses before the court and the evidence was confined to the questions whether Hanson had waived the right to have the fifty-foot strip which had not been excepted in his contract of purchase conveyed to him, and whether there was any right of recoupment, and the measure of damages.

While by the terms of the option contract of November 4, 1905, the fifty-foot strip, was not excepted, the question arises whether he has or has not warned the right to insist upon it and to claim damages for its non-performance. Upon this question the testimony is conflicting.

Appellee Hunter testified that before executing the agreement of November 4,1905, he told appellant Hanson that he had made the deed conveying the fifty-foot strip to McClmtock, and that Hanson replied in substance that he thought it would be more of a benefit than damage to him. It was further testified by the witness Dial that in a conversation with Hanson at the house of Hunter prior to the execution of that agreement, the conveyance of the fifty-foot, strip was discussed and Hanson made no objection but said he was glad the strip was conveyed and he would rather have two railroads there. This testimony is denied by Hanson but it is quite clear from the evidence that at the time of the execution of the agreement on November 4, 1905, he knew of the convey anee.

Appellee further testified that about January 1, 1907, when the final payment became due under said agreement, appellee and Hanson met in the office of Denison and Spiller in Marion, when Hanson claimed damages ■ for the fifty-foot strip; that Hanson wanted the time of that payment extended and proposed if appellee would extend the time he would make a new note leaving out the clause of non-negotiability (which he had inserted in the old note) and release appellee from a damage suit that was pending and that appellee did extend the time as requested by Hanson and Hanson executed a new note. This testimony is corroborated by the witness Denison.

Appellant Hanson denies his presence in Marion and at the office of Denison and Spiller at that time; states he was then at Rockford, Illinois, where he signed the new note which had been sent him there. He denies there was any such agreement as that testified to by appellee and Denison and in this he is corroborated by the witnesses William Huddleston and A. J. Hudgins. The cause was heard upon the oral testimony of the witnesses examined in open court and the chancellor saw them on the witness stand and heard them testify and the finding must be accepted as conclusive unless it clearly appears to be against the weight of the evidence. We have carefully considered all the evidence as it bears upon the alleged transaction in the office of Denison and Spiller and we are unable to say the finding is so clearly against the weight of the evidence it should be disturbed. The testimony on behalf of appellee taken as true, that appellee agreed to extend the time of the payment of the last note due under the agreement, and that Hanson agreed to release appellee from the payment of damages, was an agreement upon sufficient consideration to waive all claims for damages.

Upon the examination of Gordon Pillow, a witness for defendant, as bearing on the question whether Hanson was in Marion at the time of the alleged agreement in Spiller and Denison’s office, the witness was asked by appellant’s counsel this question, “You may state if you received a letter from him while he was away,” to which the court sustained an objection. This is assigned as error. If it was sought to prove appellant’s whereabouts at a particular time by proof that a letter had been received from him, the letter itself with the envelope and postmark would have been the best evidence of the fact and there was no offer to make this proof. The court did not err in sustaining the objection.

The only other alleged error noticed in appellant’s brief is upon an objection sustained by the court to a question upon the measure of damages which in view of the conclusions reached in this opinion it is not necessary to consider, nor is it necessary to consider the question of recoupment. Finding no error the decree of the Circuit Court is affirmed.

■Affirmed.

Mr. Justice Duncan took no part in the decision of this case.


text:
    Ira E. Stevens, Appellee, v. Franklin County Carbon Coal Co., Appellant.

      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.

      Assumpsit. Appeal from the Circuit Court of Franklin county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Hart & Williams and Thomas J. Layman, for appellant.
    Charles Daniels and Hickman & Moore, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Franklin county in which appellee recovered the sum of four hundred dollars, a balance for a sinking outfit claimed to have been sold and delivered to appellant.

On October 6, 1906, appellee submitted the following written proposal:

“Benton, Illinois, October 6, 1906.

Franklin County Carbon Coal Company,

Benton, Ills. (Thompsonville, Ill.)

Gentlemen:

I propose to furnish you f. o. b. Springfield, Bis. one sinking outfit consisting of one pair of engines with two friction drums and one upright boiler; all self contained and in first class secondhand condition together with all the safe sheaves, buckets, trucks, etc. for the sum of eight hundred dollars ($800.00), of which four hundred dollars ($400.00) is to be paid spot cash with order and the balance four hundred dollars ($400.00) to be paid by note dated on arrival of the equipment and to run 30 days from date.

Tours truly,

Ira E. Stevees,

Old Colony Bld’g, Chicago.”

On the same day the proposition was accepted by one Isbell who made upon it the following endorsement:

“Accepted 10-6-06. Franklin County Carbon Coal Company. W. M. Isbell, Gen. Mgr.”

On October 8, appellee received the sum of four hundred dollars which he treated as part payment for the outfit.

It is insisted by appellant that Isbell was not its agent and had no authority to make the purchase and further that there was no ratification of the purchase by appellant..

It appears from the signature of Isbell to the acceptance of the above proposal that he represented himself to.be the general manager of the company; it also appears from the printed list of directors and officers of appellant company that he was a director and general manager. It further appears the four hundred dollars sent appellee on October 8th, was sent by one E. S. Bundy, who sent it from Thompsonville, and who stated in the letter enclosing the draft that it was sent by request of the coal company. Bundy was not an officer of the company. B. A. Thompson who was the treasurer and A. J. Hanson who was president of the company, testify that they knew of no authority to Isbell to make the contract and Thompson also testifies that the payment of four hundred dollars was not paid by the coal company; that it was paid by E. S. Bundy. There is no evidence of any action of the board of directors as a board in reference to the transaction.

We are of opinion, however, from all the circumstances that.the evidence is sufficient to support the verdict.

After the outfit arrived, appellant, on October 27th, sent appellee the following notice:

“Ira Stevens,

Old Colony Building, Chicago.

Machinery here subject to your order. Hot as represented. Can’t use it. Return money or will attach machinery at once. Answer.

(Signed) Franklin County Carbon Coal Co.”

Appellee refusing to return the money, appellant brought suit in the Franklin County Circuit Court to recover the four hundred dollars paid appellee by Bundy, placing it upon the ground as shown by the notice to appellee, not that Isbell did not have authority to purchase and not that Bundy did not have authority to. make part payment, but that the machinery was not as represented. This course of conduct was evidence of an admission on the part of appellant that the money paid by Bundy was its money, and contradicts the statement of the officers of the company that the four hundred dollars paid was not paid by the company. We think it is apparent from all the testimony that the appellant paid the four hundred dollars on the purchase and refused to receive the outfit because it was not satisfied with the condition and quality of its machinery.

It is further insisted that the evidence conclusively shows the outfit was not ‘ ‘ in first class secondhand condition together with all the safe sheaves, buckets, trucks, etc.,” as required in the written proposal of appellee.

We have examined the evidence and are unable to determine from it what constitutes a “first class secondhand condition.” The evidence upon this point was conflicting and we are not prepared to hold the court erred in overruling appellant’s motion for a new trial and entering judgment on the verdict.

Finding no error, the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Ellsworth Higgins, Appellee, v. Landen Kite, Appellant.

      Contracts—what sufficient consideration to support. A settlement of a controversy is supported by a sufficient consideration if the claim settled was doubtful and unliquidated.
    Action commenced before justice of the peace. Appeal from the County Court of Effingham county; the Hon. Michael O’Donnell, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed and remanded.
    Opinion filed November 13, 1909.
    A. S. Lot and G. F. Taylor, for appellant.
    R. C. Hakrah and S. F. Gilmore, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from the County Court of Effing-ham county where it was tried on appeal from a justice of the peace.

Appellee recovered a judgment for $170.25 and costs in the trial court.

The parties to this cause on April 3, 1908, entered into an agreement partly in writing and partly in parol whereby appellant, who had a farm of one hundred and twenty acres, leased to appellee for one year about twenty acres of ground for corn and twelve acres of meadow, reserving rent, also providing that appellee should have one-half of stock field; one-half small fruit and apples for his use. This portion of the lease was in writing. It was further agreed by parol that appellee should occupy four rooms of the dwelling on the farm, appellant reserving two rooms. Appellee moved on the premises and after a time he and his wife becoming dissatisfied, desired to cancel their lease and move away. Meanwhile appellee had prepared the ground and planted some potatoes and garden seeds, broken some twelve acres of ground, attended to injured sheep and claimed for some other small services, for all of which, together with the supposed loss of his leasehold, he claimed damages.

After a careful consideration of all the evidence we conclude there was a settlement of all these disputed claims. Appellee testifies that his wife was dissatisfied with the surroundings and they both for this reason desired to quit the premises; that he proposed to appellant if he would pay him damages he would move; that he proposed that he pay him fifty dollars; that appellant offered him twenty-five dollars and that after consulting with his wife, he agreed to accept the offer and moved away the next morning. This was but a few weeks after appellee moved there in April. This is substantially the statement also made by appellant as to the terms of the settlement.

After the settlement there arose a controversy over an item for chickens and for hay for which appellant claimed appellee owed him; but whether those items were included in the settlement or whether they arose afterwards does not affect the settlement of the dam- • ages claimed by appellee at the time of that settlement and we find no reason anywhere in the evidence why the parties should not be held to it. The claims of appellee were unliquidated and doubtful. He desired to terminate his lease upon grounds of doubtful sufficiency and all his items or claims against appellant were unliquidated. In such case there is sufficient consideration to support the settlement. Mulholland v. Bartlett, 74 Ill. 58; Stoelke v. Hahn, 55 Ill. App. 497; Warren v. Kerr, 93 id. 172.

Being of opinion the damages were excessive, the court erred in overruling the motion of appellant for a new trial and entering judgment on the verdict.

We do not deem it necessary to discuss the alleged errors assigned and argued on the instructions given on behalf of appellee since upon another trial in conformity with the views herein expressed such alleged errors if any may be obviated.

The judgment is reversed and the cause remanded.

Reversed cmd remanded.


author: Me. Justice Shibley

text:
    A. Guggenheim et al., Plaintiffs in Error, v. Mose Hoffman, Defendant in Error.
    1. Evidence—when expert testimony incompetent. Held, in this case, that it was error for the court to permit witnesses engaged in the clothin'g business to testify as to what would be a reasonable time in which to open, inspect and return a bill of goods. The facts and circumstances should be shown, and the ultimate question as to what was such reasonable time left for the determination of the jury.
    2. Instructions—must not give undue prominence to particular facts. An instruction is improper which singles out and gives undue prominence to a particular fact in controversy.

      Assumpsit. Error to the Circuit Court of Marion county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed and remanded.
    Opinion filed November 13, 1909.
    A. D. Rodenberg, Logan B. Skipper and Charles H. Holt, for plaintiffs in error; Max Herzberg, of counsel.

      . J. J. Bundy, for defendant in error.
   Me. Justice Shibley

delivered the opinion of the court.

This case was before this court at a former term (128 Ill. App. 289) and was reversed and remanded for a new trial.

Another trial has resulted in a verdict and judgment for defendant in error, hereinafter called defendant, to reverse which this writ of error has been prosecuted. The former opinion contained a sufficient recital of the facts which were substantially the same on this trial as on the last, and we deem it unnecessary to repeat them except in so far as it may be found necessary to a discussion of the alleged errors argued in the brief of plaintiffs in error, hereinafter called the plaintiffs.

It was a disputed question in the case, upon which there was a conflict in the testimony, whether the goods shipped defendant and received by him on March 22, 1905, were in compliance with the order made by him in respect to the size of various garments. He claimed they were not, and for this reason endeavored to rescind the contract of sale in part by shipping back to plaintiffs such goods, and keeping those which corresponded with the order.

After the goods were received by defendant, he kept them in the boxes and did not unpack and examine them until May 11, following their receipt, and the main question of fact on the trial was whether (conceding the goods were not in conformity with the order) this was a reasonable length of time in which to examine them, give notice to plaintiffs, and return them.

Upon the submission of this question to the jury, it is urged the rulings of the court both as to the admissibility of the evidence and the instructions were erroneous.

In its former opinion, the court announced the general rule that “it is the duty of the purchaser to examine the goods purchased within a reasonable time after their receipt and immediately upon discovery that they are not of the character called for by the contract, to so notify the vendor. The question as to what constitutes a reasonable time in a particular case depends upon the circumstances surrounding the case as established by the evidence.” And the court further announced that “One of the most important factors in determining whether the particular time was reasonable or not * * * is the existing usage or custom relating to such trade. ‘While usages of trade cannot be set up to contravene established rules of law or to vary the terms of an express contract, yet, all contracts made in the ordinary course of business without particular stipulations, express or implied, are presumed to be made in reference to any existing usage or custom, relating to such trade, and persons dealing therein will be held as intending that the business should be conducted according to such general usage and custom.’ ”

We adhere to these rules as stating correct principles as applied to this case. The court over the objection of plaintiffs, permitted witnesses engaged in the clothing business to testify as to what would be a reasonable time in which to open and inspect and return a bill of summer goods received on March 22 of the year in which the goods were to be placed on sale, and were permitted to express their opinions of what would be a reasonable time. One witness expressed the opinion that he would consider “any time before the bill was due a reasonable time.” Another “any time before the early part of May.” And another “any time before the goods were placed on sale.”

This testimony was irrelevant and it was error to admit it. In the absence of any express stipulation, it was implied that defendant would examine, and in case of any breach of the terms of the contract in the quantity or quality of the goods, return them within a reasonable time. This action on his part was due the plaintiffs in order that they might not be unreasonably delayed in again placing the refused goods on the market. It was proper to prove relevant and material facts and circumstances from which the jury could in-4 fer the ultimate fact whether defendant had examined and returned the goods in a reasonable time.

It was not a question of science or skill, or one that involved technical or peculiar knowledge, and the jury being competent to draw their own conclusions from the fact without the aid of such testimony, it invaded the province of the jury and was not competent.

Plaintiffs complain of the refusal of the following instruction:

“The court instructs the jury that while every manufacturer impliedly contracts with the person for whom an article is made in absence of a special contract, to the contrary, that the article manufactured shall be reasonably fit for the purpose for which it is made, yet, if after goods are manufactured and delivered to the purchaser and accepted by him, after a, reasonable time for inspection without making any objections, he will be held to have waived any defect that could have been discovered by a reasonable inspection. ”

We are inclined to the opinion that this instruction states a correct principle of law and should have been given.

Error is assigned upon the first, second and third instructions given by the court on behalf of defendant. Without setting them forth in haec verba> it is sufficient to say each one singles out for special comment particular portions of the evidence for the jury to consider in determining whether the defendant examined the goods in a reasonable time giving them undue prominence. This should not be done. Holmes v. Hale, 71 Ill. 552; Martin v. Johnson, 89 id. 537; C. B. & Q. R. R, Co. v. Warner, 108 id. 538.

An instruction should not select part of the evidence on a particular question and call the attention of the jury to it and omit other "evidence entitled to consideration upon the same question. Hoge v. People, 117 Ill. 35.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    E. S. Bundy, Assignee, Appellee, v. W. C. Harris et al., Appellants.

      Exemptions—when judgment should, not he rendered, as for wages. Even though, a promissory note may recite that it was 'given for wages due the payee, yet it is error to give judgment thereon as for wages if the evidence is uncontradicted that the consideration for such note was, as a matter of fact, something other than wages.

      Assumpsit. Appeal from the County Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed and remanded.
    Opinion filed November 13, 1909.
    Joplin & Spillbr and Thomas J. Layman, for appellants.
    W. H. Williams, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This was an action on a promissory note signed by appellants and payable to and delivered to W. D. Fly and O. M. Fly and by them assigned before maturity to appellee Bundy. The note was for three hundred dollars and had the following provisions: “and we further agree that if this note which is given for wages due payee as servant is collected by suit the judgment shall include an attorney’s fee of $25.”

To the declaration appellants filed a plea of the general issue and a special plea averring the note was not given for wages due payee as servant but was given for a patent clothes line right. Issue being joined upon these pleas a jury was waived and the court upon hearing the evidence rendered a judgment against appellants for the amount of the note and interest including an attorney’s fee of $25, making the total judgment $375.75, and further found and recited in the judgment that $350.75 thereof was for wages of plaintiff as servant.

The evidence in support of appellants’ special plea that the note was given for a patent right to manufacture and sell clothes lines and that it was not given for wages as a servant, was uncontradicted, and it was further shown that appellants did not owe either the original payee or the appellee any sum for wages as servant.

Section 16 of chapter 52, Hurd’s Statutes 1903, provides : “No personal property shall be exempted from levy of attachment or execution when the debt or judgment is for the wages of any laborer or servant: Provided the court rendering judgment shall find that the demand so sued for is for wages due such person as laborer or servant; which finding shall be expressed in the record of said judgment and endorsed upon the execution when issued.”

This provision of the statute is solely for the benefit of laborers and servants and is designed to protect them against the exemption laws in collecting wages. No other class of creditors is entitled to the benefit of it, and in order to have the benefit of the statute it must appear the indebtedness for which the judgment is rendered is for such wages.

The duty rests upon the court at the time of rendering judgment to determine whether the indebtedness for which judgment is being rendered is for such wages. Epps v. Epps, 17 Ill. App. 196.

With the undisputed evidence which was entirely competent before the court that the note was not given for the wages of a servant, it was error to render a judgment for such wages.

This action of the court is assigned for error and is the only question submitted by the briefs of counsel. The judgment of the trial court for the error indicated is reversed and the cause remanded.

Reversed and remanded.


text:
    James T. Coen, Administrator, Appellant, v. Selinda W. Cotterell, Appellee.
    1. Administration of estates—sections 18 and 46 construed. While section 18 of of the Administration Act was enacted at a later date, and did not repeal section 46, both sections being part of the same Act should be read together, and all provisions thereof given effect, if possible.
    2. Administration of estates—when section 46 does not apply. If an appointment of an administrator has been made pursuant to section 18 of the Administration Act, section 46 of such Act has no application.
    3. Administration of estates—when appointment of public administrator proper. No application for letters having been made within sixty days after the death of the intestate by any of those parties given the preferential right of administration, held, that the appointment of the public administrator was proper.
    Petition for revocation of letters of administration. Appeal from the Circuit Court of Richland county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed.
    Opinion filed November 13, 1909.
    Statement by the Court. On June 2, 1908, appellant as public administrator filed a sworn petition in the Probate Court of Richland county setting forth that one Samuel Cotterell had died in said county on the 15th of March, 1908, intestate, leaving personal estate of not exceeding in value twenty-five hundred dollars; that he left surviving him three daughters and three grandsons, his heirs at law residing in said county, but no widow; that all of the heirs were of age except one, a grandson aged nineteen years.

      It was further averred, all said heirs had failed and refused to ask that administration he granted on said estate and had lost their preference to administer; that petitioner had been informed there were creditors of the estate; that as public administrator he had an interest therein and wished the assets conserved and prayed that, letters of administration be granted him.
    Upon a hearing of the petition the Probate Court made an order finding that more than seventy-three days had elapsed since the death of Samuel Cotterell and no administration had been had or applied for; that deceased left personal estate of the value of two thousand dollars and that administration be had and letters issued to the public administrator and ordered letters to issue. Letters accordingly issued. Appraisers were appointed and adjustment day fixed for the first Monday of August following.
    On July 21, 1908, appellee, a daughter of the intestate, filed her petition in the Probate Court asking to have the order appointing the public administrator set aside and his letters revoked. The substance of her petition was that the intestate left an estate of forty acres of land and personal estate of the value of one thousand dollars; that he requested it be divided without administration after the payment of funeral expenses and a small indebtedness. That thereafter by agreement of all the adult heirs, and of the guardian of the minor, appellee took possession of all the personal property.
    It was alleged that appellant Had no interest in the estate; that his petition had not been filed by any person interested in the estate nor on behalf of any creditor or person interested, and the court had no jurisdiction of said petition or of the estate. It was further alleged there were no debts of said estate and in addition to a revocation of appellant’s letters of administration, appellee prayed the estate be awarded to her.

      Upon a hearing of this petition by the Probate Court, the prayer was denied and the petition dismissed. Appellee carried the case to the Circuit Court where upon a hearing, the order of the Probate Court denying the prayer of the petition was reversed and an order entered revoking the' letters of appellant, discharging him as administrator and awarding all the personal property to appellee.
    In the Probate Court, a demurrer was filed to appellee’s petition which was as recited in the order of the Circuit Court there renewed and overruled. The order recites appellant stood by his demurrer and was called and made default and evidence was heard.
    The petition was sufficient to raise the question whether the appointment of appellant as administrator was proper and while it contained much immaterial matter there was no error in overruling the demurrer and hearing the question of the legality of the appointment on the evidence which was heard and it was shown appellant had no interest in the estate except that he was the public administrator. It was further shown Samuel Cotterell died intestate in Richland county leaving real and personal estate there situated and also leaving children and grandchildren all of age except one residing in that county.
    J. C. Ritter, for appellant.
    R. B. Witcher and John Lynch, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

If the appointment of appellant administrator was not legal and proper the order entered by the Circuit Court to the extent that it revokes such order and discharges appellant as administrator should be sustained.

It will be observed from the foregoing statement that more than sixty days elapsed from the death of Samuel Cotterell before application was made by appellant for letters, and that no heir, creditor or other person interested filed the petition asking for such appointment nor was it filed on behalf of any creditor or person interested.

Section 18 of chapter 3 entitled “Administration of Estates” is as follows:

“Administration of the estate of all persons dying intestate shall be granted to some one or more of the persons hereinafter mentioned and they are respectively entitled to preference thereto in the following order:

1st. To the surviving husband or wife or any competent person nominated by him or her.

2nd. To the children or any competent person nominated by them.

3rd. To the father or any competent person nominated by him.

4th. To the mother or any competent person nominated by her.

5th. To the brothers or any competent person nominated by them.

6th. To the sisters or any competent person nominated by them.

7th. To the grandchildren or any competent person nominated by them.

8th. To the next of kin or any competent person nominated by them.

9th. To the public administrator or to any creditor who shall apply for the same.

“Provided, that only such persons as are entitled to administer under this act shall have the right to nominate. When several are claiming and are equally entitled to administration, the court may grant letters to one or more of them, preferring relatives of the whole to those of half blood. Preference and the right to nominate under this act must be exercised within sixty days from the death of the intestate, at the expiration of which time administration shall be granted to the public administrator.

“In 9,11 cases where the intestate is a non-resident, and in all cases where there is no widow, husband or next of kin entitled to a distributive share in the estate of such intestate, who at the time of the death of said decedent is a bona fide resident of this State, administration shall be granted to the public administrator; and in all cases where any contest shall arise between the widow, heirs at law or next of kin of the decedent in relation to the grant of letters, and it shall appear to the court that the estate of said decedent is liable to waste, loss or embezzlement administration to collect shall be granted to the public administrator of the proper county to administer such estate until said contest is determined. No administration shall in any case be granted until satisfactory proof shall be made to the County Court to whom application for that purpose is made that the person in whose estate letters of administration are requested is dead and died intestate.

“Provided, That when the heirs are residents of this State and the estate is solvent and without minor heirs and it is desired by the parties in interest to settle the estate without administration this law shall not apply. And further provided, that no non-resident of this State shall be appointed or act as administrator or executor.”

It seems to be the policy of the law that administration should be had upon the estate of all persons dying intestate except as provided in the proviso. This case does not come within the proviso, there being one minor heir, and it was proper for the Probate Court on proper application to appoint some person coming within the qualifications provided in section 18.

It wiil be seen by this section certain persons only are authorized to act and nominate and are given preferences in the order named from the first to the ninth clauses. When none of the persons from the first to the eighth clause inclusive exercise the right to administer, or to nominate some one to act within sixty days from the death of the intestate', administration shall be granted to the public administrator.

Counsel for appellee insist this section is to be read in connection with section 46 of the same act, It reads as follows: “Whenever any person dies seized or possessed of any real estate within this State or having any right or interest therein has no relative or creditor within this State who will administer upon snch deceased person’s estate, it shall be the duty of the County Court upon application of any person interested therein to commit the administration of such estate to the public administrator of the proper county.”

And it is insisted that by this section the appellant as public administrator could not be appointed administrator by the Probate Court in the absence of an application by”some person interested therein.

Section 18 while enacted at a later date did not repeal section 46, and both sections being parts of the same act, should be read together and all the provisions given effect if possible.

“Repeal by' implication is not favored' and if two statutes claimed to be inconsistent can be construed so that each may be enforced that course will be followed.” Butz v. Kerr, 123 Ill. 659; Cook v. Gilbert, 146 id. 268.

Manifestly by section 18, supra, where no preference or right to nominate by the persons preferred is exercised by them within sixty days from the death of the intestate in a case like this, the right to administer is conferred upon the public administrator without the application of any person interested.

We are of opinion that by section 46, supra, where no administration is had upon an estate and the intestate has no relative or creditor in the State who will administer it is the duty of the Probate Court upon application of any person interested to appoint the public administrator and this applies where there had been no administration and where no relative or creditor within the State will administer in order that the estate may be administered, but it has no application to a case where there has already been an appointment under section 18. If there has been such appointment under section 18, the conditions to be remedied by section 46 do not exist.

We are of opinion the order of the Circuit Court in revoking the letters of appellant/and ordering the property of the intestate to be turned over to appellee was erroneous and the order of the Circuit Court is reversed and the order of the County Court in dismissing the petition of appellee is sustained and affirmed.

Reversedl.


author: Mr.. Justice Shirley

text:
    The People of the State of Illinois, Appellee, v. Kolb Coal Compay, Appellant.
    1. Mines and Minees Act—construed with respect to employment of mine examiners. The provisions of the Mines and Miners Act do not require that a mine examiner employed shall not be assigned to the performance of other duties than those which fall to a mine examiner. All that the Act requires is that the mine examiner shall fully perform the duties imposed by law.
    2. Mines and Miners Act—construed with respect to requirements as to mine examiners and mine managers. The Mines and Miners Act does not forbid, but, on the other hand, authorizes a single person, if duly qualified to perform the duties of both offices, to be both a mine examiner and a mine manager at the same time.
    Proceeding by information. Appeal from the County Court of St. Clair county; the Hon. John B. Hat, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed.
    Opinion filed November 13, 1909.
    E. W. Rapiequet and Louis Klingel, for appellant; Kramer, Kramer & Campbell, of counsel.
    F. J. Tecklenburg, for appellee.
   Mr.. Justice Shirley

delivered the opinion of the court.

On July 30, 1908, the State’s Attorney of St. Clair county filed an amended information in the County Court against appellant charging it with the violation of the statute in relation to not having and employing at its mine a duly authorized mine examiner.

The amended information contains four counts. In the first appellant was charged with being a corporation and while operating a coal mine in St. Glaircounty, on June 25,1908, then and there unlawfully and wilfully neglected, refused and failed to employ and have at its said mine a mine examiner holding a certificate of competency issued by the State Mining Board and whose sole duty in and about said mine while performing the duties of mine examiner, pertained to such position.

The second count charges an unlawful and wilful neglect, failure and refusal to have in its employ and have at its mine a regularly licensed mine examiner while so operating said mine in this that defendant undertook and pretended to perform said duties tif mine examiner in, by and through its mine manager.

The third count charges an unlawful and wilful failure, neglect and refusal to employ and have at its mine while so operating it a mine examiner.

The fourth count charges an unlawful and wilful failure, neglect and refusal to have while so operating its mine a mine examiner whose sole duty in and about said mine while performing the duties of mine examiner pertained to such position of mine examiner.

A motion to quash the amended information and each count being overruled, appellant excepted and after hearing the evidence, the court found the defendant guilty as charged in the amended information and after overruling appellant’s motions for a new trial and in arrest of judgment, entered judgment and fixed the fine at the sum of twenty-five dollars and costs, from which judgment this appeal is prosecuted.

. The finding and judgment of the court was general and if there was any count of the information proved which was sufficient, the judgment should be sustained.

The first, third and fourth counts will be first considered. Bach of them charges a wilful failure on the part of appellant to have in its employ a mine examiner at its mine. It is also charged, in the first and. fourth counts that appellant did not employ a mine examiner whose sole duties while performing his duties as examiner pertained to such position, contrary to the statute in such case made and provided. We have carefully examined the provisions of the statute and we are unable to find anywhere any requirement that a mine examiner can perform no other duties than those pertaining to the duties of his position. He must fully perform the duties imposed by law and this is all that can be required. There is no provision of the statute which prevents him from performing other duties.

The averments in the first, third and fourth counts that appellant did not have in its employ a mine examiner, are sufficient, but the additional averment that his sole duties while so employed did not pertain to his duties as such examiner, charges no offense and is mere surplusage. We therefore regard such counts as simply charging that appellant wilfully failed to have in its employ a mine examiner. This allegation was fully met on the trial by testimony which was conclusive, that appellant had in its employ a regularly licensed examiner in .the person of Jacob Mann, who held a certificate as mine examiner issued to him by the State Mining Board. Therefore the evidence was not sufficient to sustain the finding and judgment as to either of those counts.

The second count charges the appellant wilfully failed and refused to have in its employ a regularly licensed mine examiner of said mine while so operating it, in this, that defendant undertook and pretended to perform such duties of mine examiner by and through its mine manager contrary to the statute, etc. We think this count presents the question whether appellant incurred a penalty in having the duties of mine ■examiner performed by its mine manager, although it is not expressly averred that the mine manager was at the time also performing the duties pertaining to that position. While the statute provides for the employment of both mine managers and mine examiners, and provides that they shall hold certificates of competency, the manager from a duly authorized Board of Examiners of the State and the examiner from the State Mining Board, and while it is unlawful for the operator of a mine to employ a man in either capacity or suffer him to serve without he holds such certificate, and while the duties of a manager and examiner are different, yet there is no provision of the statute that one person may not perform the duties of both. On the contrary, section 8 of the Miners Act provides that one holding a manager’s certificate may serve as mine examiner. We do not overlook the provision that it is the duty of the mine examiner, when working places are discovered in which accumulations of gas or recent falls or any dangerous conditions exist, that he shall mark the place and at once report his finding to the mine manager. The object of this provision is twofold, to mark the dangerous places and acquaint the mine manager with the fact. If a qualified mine manager acting also as mine examiner and who holds a certificate of competency as such, marks the dangerous place himself, the object of the law is fully met. The place is marked and the mine manager is advised of the fact by his own inspection. The purpose of the law is to protect the lives and health of men engaged in: a dangerous occupation and the many duties required to be performed by mine managers and mine examiners must be fully performed, whether the mine is large or small. If they are so performed, whether by one man or two, the spirit of the law is fully complied with.

• The testimony in this case shows, that Jacob Mann was acting in both capacities as mine manager and mine examiner. It also shows he held a certificate as manager and, as heretofore stated, he also held one as mine examiner. There is no charge in the second count of the information that the duties of the two positions were not fully performed by him. Nor is there any evidence in the case that the duties of mine examiner were not performed.

This is a proceeding to recover a penalty for a violation of a statute, and to warrant a recovery some statute should be shown to have been violated which has not been done.

The court should have found the defendant not guilty on all the counts of the information and erred in not so finding.

For the errors indicated, the judgment is reversed.

Reversed.

Finding of facts'. We find that at the time charged the appellant had in its employ a duly qualified mine examiner holding a certificate of competency from the State Mining Board.


text:
    Kitchell Cox, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Instructions—-must be predicated upon evidence. An instruction is improperly given which, is not predicated upon evidence in the cause. The giving of such an instruction will reverse if calculated improperly to influence the jury.
    2. Instructions—must not submit question of law. An instruction is improper which leaves it to the jury to determine which are the material allegations in the declaration.
    3. Instructions—when upon exercise of ordinary care, too narrow. An instruction on this subject is too restricted in its scope if it limits the exercise of care to the precise time of injury. Such an instruction should permit the jury to consider the conduct of the person injured previous to such time.

      Action in case for death caused by alleged wrongful act. Appeal from, the Circuit Court of Crawford county; the Hon. E. E. Newliií, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed and remanded.
    Opinion filed November 13, 1909.
    Conger & Conger and Callahan, Jones & Lowe, for appellant; L. J. Hackney, of counsel.
    J. C. Eagleton and P. G-. Bradbury, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellee, administrator of the estate of Wilbur Cox, deceased, sued in the Circuit Court of Crawford county to recover damages for the alleged unlawful killing of his intestate. A trial resulted in a verdict and judgment in favor of appellee and appellant brings the cause here for review.

Originally the declaration contained six counts. The fourth and fifth counts having1 been taken from the consideration of the jury, the cause was tried on the remaining counts.

The first count charges in substance that the deceased, Wilbur Cox, was in the employment of appellant as assistant station agent at Flat Bock; that it was his duty to take the numbers of cars on the tracks there and that while he with due care was on one of such tracks in the discharge of his duties of taking car numbers, the appellant by its • servants so carelessly and improperly managed its engine and train by quietly and without any signal or warning, moving and backing it against Cox, that it caused his death.

The averments of the second, third and sixth counts are substantially like the first except the negligence charged in the second is that of the engineer in backing the train without giving any signal or warning. In the third, the negligence charged is that of the conductor and brakeman in failing to keep a sufficient look-, out and in failing to be so situated that in the man agement of the train in moving it backward, they could have seen Cox and signalled the engine to stop1, whereby he was struck and killed.

The negligence charged in the sixth count is that of the engineer and conductor in the management of the train by quietly without ringing a bell or sounding a whistle or without giving any signal or warning, they caused the engine and train to be moved and backed upon Cox causing his death.

On May 13, 1907, Cox was run down and killed while standing on or near one of appellant’s tracks at Flat Bock station by a train of appellant. Deceased was seventeen years of age and had been employed by appellant as assistant agent at Flat Bock about three weeks. His duties were to take the numbers of cars coming in or going out of that station and report them. It was his duty, if he saw a car the number of which had not been taken, to take it. The practice was to take the numbers daily, generally as the deceased came from dinner. He had been seen taking the numbers along the same place where he was killed, before. At Flat Bock station there were three parallel tracks called the new main, old main or switch, and old switch. Between the two main tracks there was a distance of ten or twelve feet and between the old main and switch track, a distance of about eight feet. These tracks ran north and south. On the day of the accident, the deceased immediately after dinner left his boarding place east of the tracks and walked out between the tracks. A witness testifies he had a book and would stop about every length of a car, look at the car, and write something in his book. There is a conflict in the testimony whether he was taking the numbers of cars then standing on the old switch or the numbers of cars of a freight train moving out over the old main track, and also upon which track he was at the time. While thus upon one of the tracks, the work train backed down, came in collision with Cox and he was killed. There is a conflict in the evidence as to whether he was at that time required to he present there in the performance of his duty and also the care exercised by him for his own safety under the circumstances.

The alleged negligence of the defendant in the management of the train by failing to have a lookout and to give warning and signals as required by the rules for the government of employes, is a matter upon which there is also a conflict in the evidence. We are of opinion, however, that the testimony tended to prove the material averments of the declaration and the court in refusing the motion of the defendant to direct a verdict at the close of the evidence, committed no error.

It is contended the court erred in giving the first, second, third and fourth instructions upon request of appellee. The first of these instructions, among other things, told the jury that in assessing damages in case the issues were found for appellee, the jury should consider “whether the deceased performed or did not, cheerfully and promptly, the tasks set before him.” It was wholly immaterial under the issues involved whether he so performed his tasks or not. A material question was whether he was at the place in the performance of his duties as an employe and rightfully there and whether he performed such duties cheerfully and properly, made no difference either in his obligations or in his employer’s. There was no evidence upon which to base this language in the instruction and as it was calculated to enhance the damages which were the full limit of the ad damnum, it was error to give it.

Instruction number four was as follows:

‘ ‘ The court instructs the jury that the plaintiff is not compelled to prove by a preponderance of the evidence all the material averments in each count of his declaration but that if he prove by a' preponderance of the evidence all of the material averments in any one of the several counts of his declaration, then you should find for the plaintiff.”

This instruction leaves to the jury to determine what are the material averments in the declaration and as this is a question of law, the instruction was erroneous. T. St. L. & K. C. R. R. Co. v. Bailey, 145 Ill. 159; Baker & Reddick v. Summers, 201 id. 52; Kehl v. Abram, 210 id. 218; Casey v. C. C. Ry. Co., 237 id. 140.

There are no other instructions in the case fully informing the jury what were all the material facts necessary for plaintiff to prove to entitle him to recover, so the error was not cured.

It is. objected that appellee’s instruction number three limits the consideration of the jury respecting the care to be exercised by deceased to the time of the injury, ignoring the question why he happened to be there and whether it was in the exercise of care that he went on the tracks at all.

We think the instruction under the circumstances too narrow. It limits the question of care to the time of the injury regardless of the conduct of deceased in placing himself upon the tracks,

We are also of opinion that the assumption of risk by the deceased was in issue and since there was no allegation in the declaration that he did not assume the risk, appellee’s instructions 2, 3 and 4 were in this respect erroneous. They were based upon the proposition that if the deceased was in the exercise of care and was injured by the appellant as charged, appellant should be found guilty. These instructions should have also contained the elements that deceased did not assume the risk.

For the errors indicated, the judgment is reversed and the cause remanded to the Circuit Court for a new trial

Reversed and remanded.