author: Mr. Justice Harris

text:
    Lillie Callahan, Administratrix, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    1. Trial, § 191

      —rule in passing on motion for directed verdict. When a motion for a peremptory instruction is made by defendant, the motion should be allowed if the court is of the opinion that in case a verdict is returned for plaintiff it must be set aside for want of any evidence in the record to sustain it; but the motion should be denied if the court is of the opinion that there is evidence in the record which, standing alone, is sufficient to sustain such a verdict, but that such verdict, if returned, must be set aside because against the manifest weight of all the evidence.
    2. Master and servant, § 770*—when direction of verdict improper. In an action against a railroad company to recover for the death of plaintiff’s intestate, alleged to have been caused by failure of defendant to properly equip its cars with automatic couplers, the giving of a peremptory instruction for defendant held error, where the testimony of two eyewitnesses showed that deceased was on the ladder of the rear, car when making a running switch and that he ■made several unsuccessful attempts to lift the coupling pin with the lever and that he then got down to lift the pin with his hands.
    3. Trial, § 197*—what may not he considered in ruling on motion for directed verdict. In ruling on a motion for a directed verdict for defendant, the fact that two of plaintiffs eyewitnesses did not agree in every particular, or that one of them had a better opportunity for seeing what occurred than the other, cannot be considered.
    Error to the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    Rehearing denied and opinion modified October 28, 1914.
    Bundy & Wham and Noleman & Smith, for plaintiff in error.
    W. W. Barr and Kagy & Vandervort, for defendant in error; W. S. Horton, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

The declaration in this case consists of two counts. The first count declared upon the statute of the United States, under and by which it became the duty of the defendant in error to equip all its cars, in moving interstate traffic, with couplers coupling automatically by impact so that the same may be uncoupled without the necessity of a man going between the cars, and not to haul or permit to be hauled or used on its said railroad any cars, in moving interstate traffic, not so equipped.

The second count is the same as the first count, except that it declared upon the statute of the State of Tilín oía, under and by which statute the defendant in error was, in compliance with its duty, to equip its said cars, engaged in traffic within the State of Illinois, with an automatic coupler, the provision being practically the same as under the statute of the United States; and in both of said counts it is averred that plaintiff’s deceased, Frederick J. Callahan, while engaged with his assistants in the line of his employment in making a running switch near the station of Sandoval in said Marion county, by reason of the coupler upon said cars not being in compliance with the statute of either the State of Illinois or the United States, was injured, from which injury death followed; damage to the plaintiff and next of kin in the sum of ten thousand dollars. Plea of the general issue was filed to this declaration, a trial followed, and at the close of the evidence offered for the plaintiff a motion was made by the defendant in error for a peremptory instruction to find for the defendant in error, which was by the court sustained, instruction given and verdict returned accordingly.

Therefore the question to be determined by this court from an examination of the evidence offered and the law, was the giving of the peremptory instruction error?

The law upon this subject is laid down in this State in the case of Libby, McNeill & Libby v. Cook, 222 Ill. 213, in the following language: “When a motion for a peremptory instruction is made by the defendant, if the court is of the opinion that in case a verdict is returned for- the plaintiff it must be set aside for want of evidence in the record to sustain it, a verdict should be directed. If the court is of the opinion that there is evidence in the record which, standing alone, is sufficient to sustain such a verdict, but that such a verdict, if returned, must be set aside because against the manifest weight of all the evidence, then the motion should be denied.”

The evidence in this case when considered under the law is that at the time in question .Callahan was on the ladder of the rear car and made several attempts to get the pin with the lever but did. not get it with the lever and got down to lift the pin with his hands. This is the substance of the evidence of two eyewitnesses. That these witnesses did not agree in every particular in their testimony or "that one of the witnesses had a better opportunity for seeing what occurred than the other witness would not be proper to consider under the motion made.

It was a matter for the jury to determine from the evidence whether an attempt was made to lift the pin with the lever and that it did not lift it, and the coupler would not work, and if he did try to lift it and it did not work, under the authorities, the jury would have a right to find that the car was not equipped with the coupler or that the coupler was not maintained in such a condition that the car could be uncoupled without plaintiff in error going between the cars in the performance of his duty as provided for by either the statute of the State of Illinois or of the United States. That Callahan when injured was in the line of his employment and in the performance of a duty imposed upon him by defendant in error is a conclusion that might be drawn from the evidence in this case, and we think should have been submitted to the jury as a question of fact.

We find from the evidence in this case and under the law that the motion for peremptory instruction should have been denied and instruction refused. The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Builders Supply & Coal Company, Appellee, v. R. J. Eggmann, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Rehearing denied and opinion extended October 28, 1914.
    Statement of the Case.
    Petition filed in the City Court of East St. Louis, December 14, 1911, by the Builders Supply & Coal Company, a corporation, against B. J. Eggmann and Homer Crutchfield for a mechanic’s lien against the west half of lot 15, Audubon, place, East St. Louis. Later James F. Moorehead and others filed a petition in the same court for the same purpose and subsequently the East St. Louis Lumber Company filed a like petition. To these petitions additional defendants were afterwards added and a number of intervening petitions were filed by other claimants in said suits. At the September term, 1912, of said court, the three suits were consolidated and referred to the master to take the proofs and report the same and his findings. Objections were filed to the master’s report which, being overruled, were later filed as exceptions on the final hearing, when a decree was entered. From the joint decree, three separate appeals were taken, one by R. J. Eggmann, appellant in this case, one by James F. Moorehead and one by the East St. Lonis Lumber Company.
    This appeal is confined to the one taken by Eggmann. For the opinions of the Appellate Court on the other appeals see Moorehead v. Eggmann, post p. 578, and East St. Louis Lumber Co. v. Eggmann, post, p. 580.
    • On April 18, 1911, R. J. Eggmann, T. P. Eggmann and Horace J. Eggmann were associated together in the real estate business and in pursuance thereof bought vacant lots and built houses thereon, to be sold or rented. On that date they purchased vacant real estate which included that above described and gave a mortgage on the whole tract to William Urban for $1,675. On June 27, 1912, when the amount due on the mortgage had been reduced to $875, the balance was paid to Urban and the note assigned to Horace J. Eggmann, who at the time of the trial held it as trustee for the firm. On July 1, 1911, the following contract was entered into by appellant with Homer Crutchfield:
    “East St. Louis, III., July 1, 1911.
    “This is an agreement by and between R. J. Eggmann and Homer Crutchfield as follows: The said Crutchfield agrees to purchase the west one-half of lot 15, Audubon place, Lansdowne, East St. Louis, Ill., of the said R. J. Eggmann for the sum of six hundred dollars ($600); said amount of six hundred dollars to be taken out of a loan for twenty-five hundred dollars which said Eggmann agrees to make the said Crutch-field on a certain brick cottage as per plans submitted, same to be built on the above described lot, said house to be started within one week of this date and to be completed by September 1,1911. All expenses of loan and insurance to be paid by Crutchfield. In case of shortage in funds, the said Eggmann agrees to take four hundred fifty dollars upon the completion of the loan and take back second mortgage for the sum of one hundred fifty dollars on the above described property. Mortgages are to be made by Crutchfield and wife and upon the completion of said mortgages said Crutchfield agrees to make deed to said E. J. Eggmann as further security. It is agreed by and between the parties hereto that the net profits derived from the sale of this property or rental of same to be equally divided between the parties hereto. Nothing in this contract shall be construed to affect any of the stipulations in mortgage to be made. This agreement to remain in full force and effect for two years from this date and the said Eggmann is to collect all rents or monthly payments in case said property is rented or sold on monthly payments. Moneys so received are to take care of interest on mortgages and the payment of the said second mortgage should there be one, after which said money received is to be equally divided between the parties hereto.
    E. J. Eggmann.”
    This contract was not signed by Crutchfield, but he appears to have adopted the same as his own and proceeded to have the house provided for therein erected on the premises. He purchased the necessary materials therefor from appellee and other dealers and made contracts with mechanics for its construction, which was done with the knowledge and consent of appellant. The work was visited several times a week by T. P. Eggmann who testified that he acted as agent for appellant in that matter. After the house was substantially completed, it was discovered that the work and material were costing far in excess of the amount contemplated and further execution of the contract was abandoned. Among the claims growing out of the matter which were unpaid was one of appellee’s for $154.26 for material used in the building and $59.35 for money advanced to pay for labor. There was also due and unpaid to J. Steinkopf the sum of $148.59 for material furnished and labor done in plastering the house, which account was purchased by and assigned to appellee by Steinkopf and the assignment presented to and accepted by Crutchfield. Appellee furnished the last of the material for which he claims on October 27, 1911, and his attorney testified that on November 25, 1911, he served on appellant a notice addressed to appellant and Crutchfield, showing there was $303 due appellee. On December 14, 1911, appellee filed the petition above referred to, to enforce a lien against said premises, stating that during the month of July, 1911, Homer Crutchfield applied to petitioner for terms on which petitioner would furnish building supplies, lime and cement to be installed in the building then being erected on the property above described; that prices were given him and a contract agreed upon and material furnished to the amount of $362.20, an itemized statement of said bill being affixed and attached to the petition and made a part of the same. It was also alleged that appellant was the owner of the property and knowingly permitted Crutchfield to improve it. The statement attached sets out in detail the material furnished amounting to $154.26, the several amounts of cash advanced by petitioner for labor amounting to $59.35, and the contract for material furnished and work done in plastering the house, amounting to $148.59, making a total of $362.20. The master in his report found, among other things, that appellee gave appellant a legal subcontractor’s notice within sixty days after the last material was furnished; also that appellant and Crutchfield were partners and that such notice was unnecessary; that appellee was entitled to its lien for material and the Steinkopf claim assigned to it, but was not entitled to the lien for $59.35 cash advanced by it; that Horace J. Eggmann held the mortgage assigned to him in trust for the firm and it should have been satisfied out of the proceeds of the parts of the lot already sold; that the mechanics’ liens asked for were superior to any lien of said mortgage. On the final hearing the court entered a decree finding that a sufficient notice had been given that appellee was entitled to a lien for the amount found by the master and that the mortgage assigned to Horace J. Eggmann, trustee, had merged with the fee and the lien thereby became released. The decree appeared to proceed on the theory that Crutch-field was a contractor and that those who contracted with him were subcontractors and that a subcontractor’s notice was necessary but that as above stated, such notice had been given in this case.
    Abstract of the Decision.
    1. Mechanics’ liens, § 57

      —when person contracting for work and materials not a contractor. A written contract between two parties whereby one sold to the other a lot to be paid for out of a loan made to the purchaser by the seller for the purpose of enabling the purchaser to build thereon, held not to show any employment of the purchaser to contract for the building or that there was to be any joint ownership of the property, but to show that the seller was to part with his title, and that therefore the purchaser in contracting for work and materials could not be considered as a contractor within the meaning of the Mechanics’ Liens Act.

      Appellant contended that the proofs were too inconsistent with the petition and statement attached thereto to warrant the court in entering the decree; that the claim for cash advanced for labor included in appellee’s petition and statement, was a fraud and defeated its right to a lien for any amount; that appellee was a subcontractor and the notice given by it was not properly signed and that there was not sufficient proof of its service or the delivery of the material claimed for; that, in any event, appellee could only recover for the material furnished and not for the Steinkopf bill for plastering assigned to it.
    E. W. Eggmann, for appellant.
    Jay F. Vickers, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number;

   Mr. Justice Higbee

delivered the opinion of the court.

2. Mechanics’ liens, § 56 —when persons furnishing labor and materials not subcontractors. Where a person who contracts with others for labor and materials to build a house is the purchaser of the lot on which the house is to be built and has no contract by which he is to build, or furnish work and materials for the vendor who retained the legal title, he is not a contractor within the meaning of the Mlechanics’ Lien Act (J. & A. K 7139), and persons contracting directly with him to furnish labor and materials are principal contractors and not subcontractors so as to be required to • give notice to owner.

3. Mechanics’ liens, § 35*—when vendor of property cannot defend against lien. Where a purchaser of a lot contracted with others for labor and materials to build a house thereon but had no contract with the vendor to do so, held that the fact that the legal title remained vested in the vendor could not be availed of by the latter as a defense to a suit for a lien on the property, where he authorized or knowingly permitted the purchaser to contract for the improvement.

4. Mechanics’ liens, § 134*—right of assignee of claim to enforce lien. Where a lien claimant takes an assignment of a lien claim of another with the consent of the owner of the premises he is entitled under section 22 of the Mechanics’ Liens Act (J. & A. f 7146) to include the assigned claim with his own in filing his petition for lien.

5. Mechanics’ liens, § 103*—when excessive claim defeats lien. The wilful and fraudulent filing of a claim for an excessive amount may, under some circumstance, defeat the allowance of a mechanic’s lien.

6. Mechanics’ liens, § 103*—when excessive claim, will not defeat lien. The fact that a lien claimant included in its statement money advanced for labor performed on the premises, held not to show any fraud was committed or contemplated by it which would defeat its right to the allowance of a lien for the amount to which it was entitled.


text:
    James F. Moorehead, Appellant, v. R. J. Eggmann, Appellee.
    (Not to he reported in full.)
    Appeal from the City Court of Bast St. Louis, the Hon. Robert H. Flanhtgan, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    Statement of the Case.
    This is a separate appeal from a decree entered in a mechanic’s lien proceeding in the City Court of Bast St. Louis. Appellant’s petition and twp others were filed in that court and all three cases consolidated for hearing and tried as one case. From the joint decree three separate appeals were taken. The important facts and questions of law involved in all of the cases are considered by the Appellate Court on the separate appeal of Builders Supply & Coal Co. v. Eggmann, ante, p. 572, and the decision on that appeal is controlling upon several questions raised on this appeal.
    The decree in the consolidated cases "found that James F. Moorehead, the appellant here, contracted with Homer .Crutchfield to do certain plumbing work and furnish certain materials for the improvement then being made by Crutchfield to the amount of $203; that he had not served a subcontractor’s notice on R. J. Eg’gmann, the owner, within the required sixty days; that he was entitled to recover said sum from Crutch-field, but not entitled to a lien. The court dismissed appellant’s bill for want of equity.
    One of the questions raised was whether there was a variance between the allegations of the petition and the proofs so as to defeat the allowance of a lien, it being urged that the petition proceeded on the theory that Crutchfield was original contractor and alleged that a subcontractor’s notice had been served upon Eggmann as owner of the property.

      Abstract of the Decision.
    1. Mechanics’ liens, § 193

      —when variance between allegations and proofs will not defeat lien. Where a petition for a mechanic’s lien proceeds upon the theory that petitioner was entitled to a lien as a subcontractor and the proof showed he was entitled to a lien as an original contractor, held that the variance would not defeat the allowance of a lien, where several cases presented by several petitions were filed in the same court for liens against the same property are consolidated for hearing and it became necessary for the court to determine the rights of all the parties.
    2. Mechanics’ liens, § 190*—effect of discrepancies in pleadings. It would appear to be the theory of the law that when a petition for a mechanic’s lien has been filed, under which the property in question can be subjected to the lien of those furnishing labor or materials for improvement thereon, that all parties having similar claims may present them to the court to be heard at the same time, and that the court having jurisdiction of the property as a fund will direct the satisfaction, not only of the debt of the original petitioner or claimant but also that of other claimants whose claims have been presented, and that discrepancies and irregularities in the petition or answers presenting the claims will be disregarded, provided the substance of the claim is set forth in some one or more of the petitions presenting such claims.
    Dae McGlynn, for appellant.
    E. W. Eggmann, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number*

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    East St. Louis Lumber Company, Appellant, v. R. J. Eggmann, Appellee.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    Statement of the Case.
    This is a separate appeal taken by the East St. Louis Lumber Company from a Mechanic’s lien decree entered by the City Court of East St. Louis. Complainant’s petition and two other petitions were filed in that court for a lien against the same property and the suits were consolidated for hearing. Three separate appeals were taken from the decree, two of which have been previously considered by the Appellate Court. See Builders Supply & Coal Co. v. Eggmann, ante, p. 572; Moorehead v. Eggmann, ante, p. 578. A full statement of the facts leading up to the construction of the improvement, the filing of the petitions and the views of the Appellate Court as to questions of law concerning the transaction, and the decision on that appeal to the effect that the parties furnishing labor and materials were original contractors and not subcontractors, governs in considering the questions raised on this appeal.
    Appellant in this case claimed a lien for lumber and mill work furnished on a contract with Crutchfield and made proof of his claim, but the court found against it on the theory that it was a subcontractor and had not filed the notice of its lien as required by law.
    Appellee urged that the subcontractor’s notice was not given in time and that the notice served upon him and set out. in appellant’s petition as a part thereof claimed a balance of $815.13, when the amount should have been $654.66? and that this excess in the claim constituted a fraud in law making the whole claim nugatory.
    Abstract of the Decision.
    1. Mechanics’ mens, § 103

      —when excessive claim, will not defeat lien. The fact that a notice for a lien and also the petition contained an item, for which no lien could be allowed, held not to render the whole claim void, where it appeared that the claimant believed he had a right to include it and that there was no attempt to perpetrate a fraud.
    2. Mechanics’ mens, § 149*—when suit to enforce lien commenced in time. A suit for a mechanics’ lien held to be commenced within the time which an original contractor could bring suit to enforce the lien, where it appeared that materials were delivered on the premises twenty days before the time of commencing tlie suit.
    Wise, Keefe & Wheeler, for appellant.
    E. W. Eggmann,. for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number^ ' "

   Mr. Justice Higbee

delivered the opinion of the court.


author: Mr. Presiding Justice Higbee

text:
    Hagen Paper Company, Defendant in Error, v. East St. Louis Publishing Company, Plaintiff in Error.
    1. Pleading, § 384

      —necessity of similiter. Not error to proceed to trial without a similiter filed to the plea of general issue.
    2. Corporations, § 763*—when replication demurrable. A replication to a special plea setting up that plaintiff, a foreign corporation, had not complied with the laws in this State in order to do business therein, held demurrable.
    3. Appeal and error, § 1681*—when erroneous ruling on demurrer waived. Error of court in overruling a demurrer to a defective replication cannot be availed of on review where the party demurring did not abide by the demurrer but proceeded to trial.

      4. Appeal and erbob, § 1303

      —when judgment presumed sustained by the evidence. Where the record states that evidence was introduced but fails to show what it was, it will be presumed that it was sufficient to sustain the judgment.
    5. Cobpobations, § 710*—when foreign corporation not doing business in this State. Where a foreign corporation has no established place of business of any kind in this State and carries on no local business, but merely sells its merchandise through soliciting agents or drummers and'delivers the same through common carriers in the ordinary course of business, such corporation is not transacting business in this State within the meaning of the statute requiring such corporations to comply with certain formalities before transacting business in this State.
    Error to the City Court of East St. Louis; the Hon. Robert H. Flannigan/ Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Rehearing denied October 28, 1914.
    Jay F. Vickers, for plaintiff in error.
    W. L. Coley, for defendant in error.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same .topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court..

This was an action in assumpsit brought by the Hagen Paper Company, defendant in error, against the East St. Louis Publishing Company, plaintiff in error, to recover $543.26 alleged to be due defendant in error on eight promissory notes, executed by plaintiff in error.

The declaration alleged that the Hagen Paper Company was a Missouri corporation; that on December 6, 1911, plaintiff in error made and delivered to it eight promissory notes, seven of which were for the sum of $66.30 each and one for the sum of $65.69; that they became due at various days mentioned in the declaration after the twenty-eighth of February, 1912; that all were payable at the office of the Hagen Paper Company, with interest at the rate of six per cent, per annum- 'The declaration also contained the usual common counts.

To this declaration plaintiff in error filed two pleas, one being the general issue and the other a special plea, alleging that defendant in error was a foreign corporation organized for profit and existing under the laws of the State of Missouri; that it" was not a railroad or telegraph company,, nor in the banking, insurance or money loaning business and was not engaged in interstate commerce; that the merchandise for which the suit was brought was sold to plaintiff in error and bought by it within the State of Illinois; that defendant in error had not complied with the laws of the State of Illinois authorizing it to do business in this State, and at the time of the commencement of this suit had no certificate of authority issued to it by the Secretary of State, entitling it to transact business as provided by statute.

To the special plea defendant in error filed the following replication: “And plaintiff as to the special plea of nul tiel corporation by the defendant pleaded, says precludi non, because it says that the declaration in this cause by plaintiff filed, shows first ■—that plaintiff is a Missouri corporation, and second —that the action is based upon the eight notes executed by the defendant and made payable to the order of the plaintiff at its office, and plaintiff says that its office is in the City of St. Louis and State of Missouri and not within the State of Illinois, and that it appears from the face of the declaration by the plaintiff pleaded that the contract is a contract made by defendant with plaintiff in the State of Missouri, and therefore the plaintiff should not be precluded from maintaining its action in the matter as aforesaid, and of this it puts itself upon the country.”

A general demurrer was filed by plaintiff in error to this replication, which was overruled by the court. The record shows that there was an amended special plea filed, by plaintiff in error, after the above replication was filed, which set up in a different form substantially the same defense as that relied on in the original special plea. As it appears from the record that the demurrer to said replication was overruled sometime after the amended special plea was filed, we take it for granted that the replication, which applied in like manner to the amended as to the original special plea, was treated by the court as having been filed to the amended plea. After demurrer to said replication was overruled, the case proceeded to trial before a jury, evidence was heard and a verdict rendered in favor of defendant in error for $543.26. A motion for a new trial by plaintiff in error was overruled and judgment entered for the amount of the verdict.

Some question is raised as to whether a similiter was filed to the general issue filed by plaintiff in error, and we fail to find the same in the record. The record does contain the statement, however, that: “On the 22nd day of November, 1912, comes the parties and the issues being joined, the court orders a jury.” The similiter to the general issue must have been treated by the court and the parties as having been filed, and the trial was evidently had upon that theory. But regardless of the showing of the record, it was not error to proceed to trial without a similiter. Gillespie v. Smith, 29 Ill. 473; McCoy v. World’s Columbian, Exposition, 87 Ill. App. 605; Supreme Court of Honor v. Barker, 96 Ill. App. 490.

The amended special plea of the plaintiff in error alleged, as a defense to this action, that the merchandise for which the suit was brought was sold to plaintiff in error and bought by it within the State of Illinois, and that defendant in error was therefore transacting business in this State without complying with the laws of this State authorizing it as a foreign corporation to do so, and that therefore the court was without jurisdiction to entertain its suit to collect said debt.

The replication admitted that defendant in error was a Missouri corporation and did not deny that it had not taken the necessary steps required by statute to permit it to transact business in this State, but stated as the basis of defendant in error’s right to maintain its action in this State that it had its office in the City of St. Louis in the State of Missouri, and that it appeared from the face of the declaration that the contract between the parties was made in the State of Missouri.

Plaintiff in error insists that in overruling the demurrer to this replication the court committed a material error, for which the judgment should be reversed. The replication in question evidently sought to take advantage of a state of facts which, if true, would have constituted a good and sufficient reply to said plea of plaintiff in error, but in technical construction it failed to meet the statements of the plea in such a way as to constitute a good reply and the demurrer to it might properly have been sustained. The record shows, however that plaintiff in error did not abide by its demurrer, but that it proceeded to trial and that counsel for plaintiff in error took part in the trial. Plaintiff in error also failed to assign as error the action of the court below in overruling its demurrer to said replication. Under these circumstances, plaintiff in error cannot be permitted to take advantage of the action of the court below in overruling said demurrer as a ground for the reversal of the judgment herein, even if such ground could be considered sufficient to warrant a reversal thereof.

The record in this case states that evidence was introduced on the part of defendant in error, but fails to show what that evidence was, the same being wholly admitted. It must therefore be presumed that the evidence was sufficient to sustain the judgment in favor of defendant in error. We may say, however, that the abstract contains what purports to be the evidence introduced by defendant in error upon the trial and, from it, it appears that defendant in error obtained its orders for goods in Illinois by sending out soliciting agents from its house in St. Louis, Missouri, and that the order for the goods for which the notes in question were given was telephoned by plaintiff in error to one of these agents of defendant in error and the goods were shipped by the latter from its said place of business in St. Louis. It has been repeatedly held in this State that where a foreign corporation has no established place of business of any kind in this State, and carries on no local business but merely sells its merchandise through the instrumentality of soliciting agents or “drummers” and delivers the same through common carriers in the ordinary course of business, such corporation is not transacting business in this State within the meaning of the statute, requiring foreign corporations desiring admission into the State of Illinois, for the purpose of transacting business or exercising their corporate powers of franchises, to make application to the Secretary of State and comply with certain formalities and conditions prescribed by the law. Yost Elec. Mfg. Co. v. Cavanaugh-Darley Co., 147 Ill. App. 418; Lehigh Portland Cement Co. v. McLean, 149 id. 360; affirmed in 245 Ill. 326; John Spry Lumber Co. v. Chappell, 184 Ill. 539.

The judgment of the court below in this cause will be affirmed.

Affirmed.


text:
    M. W. Cockrum, Appellee, v. Theodore C. Keller, Appellant.
    1. Mines and minerals, § 34a

      —when finding as to fraud and deceit in sale of coal rights warranted "by evidence. In an action for fraud and deceit practiced by defendant on plaintiff, whereby the latter was induced to sell the coal under his lands for less than it was worth, held that a finding for plaintiff was sustained by the evidence.
    2. Fraud, § 58*—when action lies for fraud and deceit. A party induced by the fraud of another to enter into a written contract may bring an action for fraud and deceit, though the contract is under seal.
    3. Fraud, § 84*—sufficiency of declaration in action for fraud and deceit. ■ A declaration in an action for fraud and deceit in inducing plaintiff to sell the coal under his lands, held to state with particularity the fraudulent representations and deceits relied upon, and therefore not defective as stating conclusions only.
    4. Fraud, § 86*—when variance between declaration and proofs not fatal. In an action for fraud and deceit in inducing plaintiff to sell coal under his land for an inadequate price, held there was no fatal variance between the declaration and proofs, where the evidence sustained the charges substantially as laid in the declaration.
    5. Fraud, § 125*—when damages not excessive. A judgment in favor of plaintiff for $3,800 for fraud and deceit in inducing plaintiff to sell coal beneath his land at an inadequate price, held not excessive where the evidence tended to show that the coal rights were worth more than the sum paid, together with the amount of the verdict.
    Appeal from the Circuit Court of Franklin county; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Rehearing denied October 28, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Underwood & Smyser and Hart & Williams, for appellant; Charles R. Young and Moses Pulverman, of counsel.
    Dillon & Strickland and Layman & Johnson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

In this suit appellee claimed $16,000 damages on account of fraud and deceit practiced on him by appellant, whereby he was induced to sell the latter the coal under three hundred acres of land in Franklin county, Illinois, at $7.50 an acre, when it was really worth a much greater sum.

The declaration, which consisted of three counts, alleged that appellant, a coal operator, desired to buy a large body of coal, oil, gas and other minerals underlying the surface of the lands of appellee and other lands contiguous thereto; that he secured permission of appellee and certain others to drill test or prospect holes on their.respective lands; that he did drill said holes on the lands of each of said parties and secured cores of coal which demonstrated to him the fact that the stratum of coal underlying the surface of said land was eight feet six inches in thickness and worth at least $50 an acre, which facts appellant withheld from appellee; that for the purpose of cheating and defrauding appellee, appellant represented that the stratum of coal was less than eight feet in thickness and contained a parting of slate, rock and other foreign substance which made it practically worthless for mining purposes, and that in no event would it be worth to exceed $7.50 an acre; that after appellant had prospected said coal by drilling, he showed appellee three cores of coal purporting to be cores taken from the land of TTill, Montgomery and appellee respectively, and represented to appellee that said cores naturally and properly contained a parting of slate, rock, dirt or other foreign substance; that appellant knew at the time he made such representations as aforesaid that they were false and untrue; that appellee did not know the falsity of such representations but relied upon the truth of the statements made by appellant, and on November 6, 1905, sold him the coal, oil, gas and other minerals underlying his premises for the sum of $7.50 an acre.

The case was submitted to a jury which returned a general verdict in favor of appellee for $3,800. At the same time special findings were asked which were also made by the jury. Upon the return of the verdict, appellant insisted that the special findings of fact, especially the third made by the jury, were inconsistent with the general verdict and should control the same, and moved that judgment be entered in favor of appellant and against appellee for costs, which motion was granted by the court and judgment entered accordingly. From that judgment an appeal was taken to this court, where it was held that the special findings of fact were not inconsistent with the general verdict and should not control the same, and the judgment of the trial court was reversed and the cause remanded with directions to that court to enter a judgment in favor of Cockrum, the plaintiff below, upon the general verdict, for the sum of $3,800 and costs. Cock-rum v. Keller, 173 Ill. App. 245. Appellant was granted a certificate of importance by this court and-perfected an appeal to the Supreme Court, where it was decided that this court was correct in holding that the special findings were consistent with the general verdict and that such special findings did not control the general verdict in favor of Cockrum. But the judgment was reversed and the cause remanded to this court with directions to reverse the judgment of the trial court and remand the cause, with directions to that court to overrule the motion for judgment on the special findings and to entertain a motion for a new trial if one should be made, and if such motion should be overruled, to enter judgment on the general verdict. 258 Ill. 276. Thereafter the cause was remanded to this court and by this court to the trial court where a motion for a new trial was entered, and the same having been overruled, judgment was rendered against appellant Keller for $3,800 and costs, and from that judgment this appeal is prosecuted.

The reasons assigned and argued by appellant for the reversal of this judgment are: That- the general verdict upon which the judgment was entered was not sustained by the proofs; that a court of law had no power to investigate the question as to whether there were fraudulent representations concerning the nature and value of the consideration of the contract beween the parties; that the" declaration failed to state a cause of action and such defect was not cured by the verdict; that there was a variance between the allegations of the declaration and the proof, and the damages awarded were excessive. For a general statement of the facts, reference is made to the opinion of this court when the case was here on the former occasion referred to. It may be further said that no question was raised but that the core of coal as shown to appellee in the box contained a parting of seven inches of blue band, slate or other foreign substances which, if found in the vein of coal, would greatly injure if not practically destroy its value for mining purposes, and that appellant stated that the land was not a good coal proposition. Appellant, however, insists that the evidence does not show that such a parting as that disclosed by the core of coal in question did not actually exist as the core was taken from the drill; also that the proof fails to show that he was instrumental in tampering in any way with the core of coal as it came from the vein.

It appeared from the proofs that prior to the date of the drilling mentioned, appellee had given a written option for the sale of a greater portion of the premises in question to a nephew who had transferred it to Messrs. Fitzgerrell, Stamper and Espy, and that these three had subsequently transferred the option to appellant; that when some three feet of coal had been bored through and the drillers announced that fact, appellant refused to permit Fitzgerrell, Stamper and Espy to be present when the test was completed and the core taken out; that it was, however, finally agreed after much wrangling that Espy should be present when the drill went through the coal and thereafter the drill was sunk through the vein and it was found there were nine feet one inch of coal with three-fourths of an inch of blue band; that three feet of the core had been taken out on one day and the balance on the second day when Espy was' present; that when the whole core was exhibited to appellee it showed a parting about eighteen inches from the bottom- in the stratum of coal, consisting of blue band, slate or other impurities, seven inches thick and this parting had been inserted in the core after it had been removed from the vein. That this foreign substance was inserted in the core after it came from the vein is denied by witnesses who testified on behalf of appellant. It was therefore for the jury, who heard the testimony and saw the witnesses on the stand, to determine what weight should be given to the testimony of the several witnesses and which were more worthy of credence, and to decide from all the evidence in the case the true state of facts. In deciding the facts, the jury, in addition to the general verdict in favor of appellee, made the following special findings: “Do you find that defendant personally directed or authorized any tampering or interfering with or changing the core taken out by drilling on the land of said plaintiff! Ans. Yes.

“Do you find that defendant personally made to plaintiff personally any false statements concerning coal underlying land then owned by plaintiff! Ans. Yes.”

From an examination of the record we find that the facts disclosed therein would not warrant us in disturbing the verdict of the jury. After the expiration of the option above referred to and subsequently to the controversy over the core of coal taken from the vein, appellee entered into a written contract, under seal, with appellant to sell him the coal, oil, gas and other minerals underlying said premises, consisting of three hundred acres, for $2,200, and also to sell him the fee to a portion of said premises for $5,400, and this contract appears to have been carried out by the parties thereto. It is contended by appellant that as this contract is under seal, appellee cannot now attack the consideration at láw but that his remedy, if any he has, is in equity to set aside the contract. It does not follow, however, from the fact that appellee had the right to proceed in equity to set aside the contract in question, that he could not sue at law to recover for the-fraud he claims to have been perpetrated upon him by appellant. In 14 Am. & Eng. Ency. of Law (2nd Ed.) at page 167, the following statement is made: “It has sometimes been contended that when a party has been induced to enter into a contract by the fraud of the other party, his only remedy is to rescind the contract and sue to recover what he has parted with or set up the fraud as a defense, if he is himself sued on the contract. It is thoroughly well settled, however, that he has an election of remedies, and that, while he may rescind, he is not bound to do so but may hold the other party to the contract, and sue him to recover the damages which he has sustained in consequences of the fraud.” Our own courts have also had something to say upon this subject in conformity with the doctrine above expressed. In Antle v. Sexton, 137 Ill. 410, where it was claimed that fraud and deceit had been used by appellant to induce appellees to enter into a written contract for the sale of certain standing timber, it was said: “Surely, where a misrepresentation is made as to a material fact, and such misrepresentation is made knowingly, and for the express purpose of deceiving and defrauding, and the party injured relies upon the statements made, and under circumstances which would induce a reasonably prudent man to so rely, there must be a right of action at law for fraud and deceit. * * * The action was not brought upon the contract, but upon false representations and deceit, used to induce the plaintiff to enter into the contract, whereby they have been damnified. It is well settled that such an action will lie though the parties may have entered into a written agreement, and though in such agreement there be a warranty or stipulation upon the point covered by the misrepresentations.” The Appellate Court of the First District said, in discussing a case brought to recover damages for fraud and deceit, alleged to have been used by one of the parties in the sale of a farm, in Williams v. Wilson, 101 Ill. App. 541: “This is what is known as an action for deceit. It is not based upon the deed given nor upon the contract entered into, but upon alleged fraud by which appellant was induced to enter into the contract ultimated by mutual deeds. Such an action will lie although the parties have entered into a written agreement, thus merging therein the previous negotiations, because the complaint of the plaintiff is of fraudulent practice by which he was persuaded to contract; and such action may be maintained although there be a written warranty or stipulation upon the point covered by the misrepresentations complained of.” It is further claimed by appellant, in this connection, that the action for fraud and deceit could not be maintained for the reason that both parties had equal means of knowledge of the matters concerning which the misrepresentations are said to have been made. If, however, the proof introduced by appellee is to be relied upon, he did not have equal means of knowledge with appellant for knowing the true condition of the vein of coal and upon this subject the jury have decided, as they had a right to, in favor of appellee.

The contention of appellant that the declaration failed to state a cause of action is based upon the claim that the declaration does not allege substantial facts, essential to a right of action but states conclusions only. It is true, as stated by appellant and held in Weigand v. Cannon, 118 Ill. App. 635, that facts from which the legal conclusion of fraud is to be drawn, must be set up. This is required in order that the party charged may be notified of the evidence he is expected to meet and the Court in that case says: “A plea of fraud in procuring the execution of a written instrument must set out the facts from which the legal conclusion of fraud is to be drawn, in order that the party may be notified of the evidence he is expected to meet. It is not sufficient to allege fraud generally for the purpose of assailing a transaction on that ground, but the complaining party must state in his pleading and prove on the trial the specific acts or facts relied on as establishing the fraud.” It appears to us, however, that the declaration in this case stated with particularity the fraudulent representations and deceits relied upon by appellant and that appellant was notified thereby explicitly of the charges made against him, and which he would be expected to meet.

The claim of appellant that there was a fatal variance between the allegations of the declaration and the proofs is based upon the fact that the declaration filed in the case alleged that appellee’s land was “practically free” from foreign or faulty substance and was of extra fine quality, when the proof offered by appellee shows that there was a parting of at least three quarters of an inch of faulty substance. In Ladd. v. Piggott, 114 Ill. 647, which was an action for fraud and deceit, alleged to have been practiced by the defendant in the sale and exchange of property, it is said: “Plaintiff is, perhaps, not bound to prove the representations precisely as alleged, but he must prove the substance or the material parts of such representations, and more strictness than that the law does not require.” In Endsley v. Johns, 120 Ill. 469, which was also an action for fraud and deceit, it is said to be true, “that the plaintiff might recover although he did not prove the misrepresentations precisely as laid, nor in all the different forms as laid; but it was required of him to prove substantially the material allegations. ’ ’ In this case appellee introduced proof to sustain the charges substantially, if indeed it could be said not to be precisely, as laid in the declaration, and appellant’s objection on this score does not appear to us- to be well founded.

The last contention of appellant is that the damages awarded are excessive and could not have been legally arrived at on any theory of the case, based upon the evidence. In discussing this question, appellant argues that one hundred and sixty acres of appellee’s land was sold to appellant in fee and as part of the consideration for that sale, appellant agreed to and did pay appellee $2,200 for the coal underlying the whole tract of three hundred acres, and says that appellee was not entitled to any damages because he sold both his land and his coal at an acceptable price and was fully paid therefor. The defect in this position is that it takes no account of the fraud and deceit alleged to have been exercised by appellant which led appellee to believe that the vein of coal underlying the land had a fault in it, thus rendering it of little value. The fact that part of the land was sold in fee could not affect the amount of damages to be recovered by appellee as, in fixing the value of the fee, he must have estimated the value of the underlying coal at the small amount it was supposed to be worth by reason of the fault it was said to contain. The amount of the verdict and judgment in favor of appellee was $3,800. There was proof tending to show that the coal rights were actually worth as much as $25 an acre, which would be $7,500 for the whole tract. If to the amount of the verdict there be added the $2,200 received by appellee for Ms coal rights, the sum will be $6,000, which is considerably less than some of the proof shows it to have been worth, and therefore the verdict cannot properly be considered as excessive.

The judgment of the court below will be affirmed.

Affirmed.


text:
    Emma Belle Christian, Appellant, v. Melvin C. Heuter, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Bond county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Rehearing denied October 28, 1914.
    Statement of the Case.
    Petition by Emma Belle Christian, administratrix of the estate of George W. Christian for a. citation against Melvin C. Heuter to require him to account for the assets of a partnership in which the deceased and the defendant were copartners in the former’s lifetime. Defendant answered the petition and after-wards made his report; showing the amounts received and the amounts paid out in settling the partnership, from which it appeared that he had paid out $372.04 in excess of his receipts. Exceptions -were filed to the report and upon the hearing the petition was dismissed by the court. From the order dismissing the petition, the administratrix appeals.
    Homer L. Fairchild and John A. Bingham, for appellant.
    C. E. Cook, for appellee.

      Abstract of the Decision.
    1. Partnership, § 279

      —when judgment against surviving partner payable out of firm assets. Where a note was given by a partnership and after the death of one of the partners it was reduced to judgment against the surviving partner alone, held that the indebtedness expressed in the note did not merge in the judgment so as to become an individual debt of the surviving partner, and thus prevent him, when settling up the business of the partnership, from paying the claim out of the firm assets.
    2. Partnership, § 318*—what not continuance of business by surviving partner. A surviving partner cannot be charged with having continued to carry on the business of the partnership after the death of his copartner where it appeared that no business was done by him other than selling the firm property and collecting the accounts.
    3. Partnership, § 314*—when acts of surviving partner not fraudulent. Where a surviving partner in settling the business of a co-partnership, paid a firm creditor a portion of its claim with the understanding such payment was not to be considered in full if there should be a surplus remaining after the payment of the debts, held that the fact that he thereafter paid such creditor the balance of its debt did not constitute a fraud upon the firm creditors or the creditors of the estate of the deceased partner, since the arrangement was simply to pay a debt of the partnership; and the payment was made in accordance with the law as well as good business.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion ' of the court.


text:
    Allie Webb, Administratrix, Appellee, v. A. A. Hunt, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Rehearing denied October 28, 1914.

      Abstract of the Decision.
    1. Executors and administrators, § 90

      —right of administratria> to sue for money received from sale of partnership interest. An administratrix in her official capacity has the right to sue a person for money received by him in selling with her consent, the interest of her deceased husband iñ a copartnership, and is not required to first compel an accounting by the surviving partner.
    Statement of the Case.
    Suit in assumpsit by Allie Webb, administratrix of the estate of Beese Webb, against A. A. Hunt to recover $300 alleged to have been received by defendant for said estate. To reverse a judgment entered in favor of plaintiff on a directed verdict for $293, defendant appeals.
    The facts showed that deceased at the time of his death, was a partner with one Williams in running1 a saloon, and that shortly afterwards plaintiff called upon defendant, who was an attorney, in regard to settling her husband’s estate; that he advised her that it could be settled without going into court and she employed him to look after the matter. After consultation with Williams and plaintiff, the defendant sold the interest plaintiff’s husband had in the saloon to Williams for $300, and that amount was paid over to defendant who thereafter refused to pay the whole amount to plaintiff, claiming he was to deduct therefrom $100 for attorney’s fees, and also pay the funeral expenses of deceased and $7 to one McCullough. Afterwards plaintiff took out letters of administration on her husband’s estate and brought this suit.
    Clyde D. Miller, for appellant.
    Schaefer & Kruger, for appellee.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, game topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

2. Executors and administrators, § 86 —right of set-off in suit for collection of assets. Where an attorney employed hy a widow to settle her husband’s estate out of court sold the husband’s interest in his partnership business and received the money, hut refused to turn over the money to her without first deducting attorney’s fees and other items, and the widow thereafter took out letters of administration and brought suit as administratrix for the money, held that she was entitled to recover without any deduction for attorney’s fees whether she had previously agreed to pay them or not, for the reason that as administratrix she held title to the property for the estate.


text:
    Charles Gibson, Appellee, v. Wasson Coal Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 28, 1914.
    Rehearing denied October 28, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Charles Gibson against the Wasson Coal Company to recover for personal injuries sustained by plaintiff while employed in defendant’s mine. The declaration charged defendant with a violation of its duty under clause 4 of section 21 of the Miners’ Act (J. & A. 7495) in substance, as follows:
    That on a certain day the defendant was operating a coal mine in the county of Saline in which there were entries, and one entry in particular being the second north entry off of the main east entry; that plaintiff was employed by defendant in said mine as a machine runner, operating a machine undercutting coal in said entry. That it was the duty of defendant to employ a competent mine examiner and cause him to visit said mine and make a careful examination of all places where plaintiff was expected to pass or work, observe whether there were any unsafe conditions in the rooms or roadways, and when any unsafe condition was observed in a working place to place a conspicuous mark thereat as notice to all men to keep out, and report his findings to the mine manager; said examination to be made each morning before permitting the men to enter the mine to work therein.
    That on said day plaintiff was running a machine in the said entry, and therein was a pile of gob four feet wide, three feet high, extending from the right rail of the track in said entry to the right rib of coal, located about eight feet from the face of the coal; that said gob formed an unsafe condition in plaintiff’s working place in that lumps of coal could roll therefrom into the frame of said machine, and also by reason of its being located so near the face of the coal as not to leave a clear space sufficient between the pile of gob and the face of the coal for the reasonably safe operation of said machine; that said unsafe condition could have been discovered by said mine examiner upon a reasonably careful examination on the morning of the day of the injury.
    That defendant wilfully failed to cause said examiner to visit and inspect plaintiff’s said working place and observe said unsafe condition and place a conspicuous mark thereat as a notice to plaintiff to keep out, and report his findings to the mine manager, and make a daily report in a book kept for that purpose. That defendant failed to cause the mine manager to visit and examine said working place on that morning or as often as practicable for some time prior thereto and failed to see that said dangerous place was properly marked and danger signals displayed thereat.
    That while the plaintiff was operating the machine at his working place in the usual course of his employment on the day aforesaid by reason of defendant’s wilful failure aforesaid, a lump of coal rolled off of said pile of gob into and through the frame of said machine and came in contact with plaintiff’s foot, threw him, against and into the bits of said machine and his leg was cut off about four inches below the knee and otherwise injuring him, and alleging damages in the amount of $1,999.99.
    Abstract of the Decision.
    1. Mines and minerals, § 175

      —when finding as to proximate cause of injury sustained by evidence. In an action for personal injuries sustained by a miner alleged to have been caused by failure of the mine examiner to mark a pile of gob as dangerous, held that the question whether the violation of the statute was the proximate cause was properly submitted to the jury, and that the verdict for plaintiff was sustained by the evidence.
    2. Trial, § 197*—what considered in ruling on motion for directed verdict. On motion for a directed verdict in favor of defendant, the court cannot consider inconsistent statements made by witnesses out of court.
    3. Trial, § 216*—matters considered in ruling on motion for directed verdict. It is not for the court, upon a motion for a directed verdict, to weigh the evidence and determine where the preponderance lies.
    4. Mines and minerals, § 185*—direction of verdict. In determining whether it should be submitted to the jury as a question of fact that the violation of a mining statute was the proximate cause of an injury, the court is governed by the same rule of law as applies to any other material issue.

      To these four counts of the declaration, the plea of the general issue was filed. Plaintiff had a verdict and judgment for $1,350. To reverse the judgment, defendant appeals.
    Whitley & Combe, for appellant; Mastin & Sherlock, of counsel.
    W. F. Scott, for appellee.

      Sec Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

5. Mines and minerals, § 153 —when testimony of mine examiner inadmissible. In an action to recover for personal injuries sustained in a mine, alleged to have been caused by failure of the mine examiner to mark the unsafe condition of the mine, where the mine examiner was asked the question: “Tell the jury now what condition you found that entry in as to being safe or otherwise,” held that an objection to the question was properly sustained for the reason that to permit the witness to give his opinion on such matter would improperly usurp the functions of the court and jury.

6. Negligence, § 250*—when modification of instruction harmless. A modification of an instruction on the question of proximate cause by striking out the word “direct” and inserting the word “proximate,” held not error, it also appearing that the party complaining had the benefit of the word “direct” in its other instructions given.


text:
    Joseph Synkus, Appellee, v. Big Muddy Coal & Iron Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Jackson county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed July 28, 1914.
    Rehearing denied October 28, 1914.
    Statement of the Case.
    Action by Joseph Synkus against the Big Muddy Coal & Iron Company to recover for injuries received by plaintiff on account of an explosion of gas in defendant’s mine. The case was submitted to the jury on two counts in the declaration. One count was based upon a violation of clause “b” of section 24 of the Miners’ Act (J. & A. j[ 7498). The other was a common-law count averring an unsafe place to work, a negligent order of defendant’s foreman and plaintiff’s reliance upon the promise made by the foreman of want of danger, etc. Both counts alleged that defendant had rejected the terms and provisions of the Workmen’s Compensation Act of 1911 (J. & A. j[j[ 5449 et seq.). To the declaration defendant filed the plea of general issue. Plaintiff had verdict and judgment for three thousand dollars and a motion for a new trial was overruled. To reverse the judgment, defendant appeals.
    Abstract of the Decision.
    1. Workmen’s Compensation Act, § 2

      —duration of election. Under the provisions of the Workmen’s Compensation Act of 1911 (J. & A. mi 5449 et seq.), where an employer files the proper notice rejecting the provisions of the act the notice stands as a negative election until it is withdrawn, and the fact that the employer does not give a further notice, sixty days previous to the first day of the following year, does not automatically constitute an election by him to accept the provisions of the act.
    Defendant urged as ground for reversal: That defendant was operating at the time of the injury under the Workmen’s Compensation Act of 1911; that the court erred in admitting certified copies of letters and notices to the Secretary of State of Illinois, and to the State Bureau of Labor Statistics; that defendant was not deprived of its common-law defenses; that the court erred in instructing and refusing to instruct the jury and in rejecting evidence offered by defendant.
    Denison & Spiller and John M. Herbert for appellant ; Mastin & Sherlock, of counsel.
    Thomas R. Mould and Schwartz & Hays, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

2. Workmen’s Compensation Act, § 2 —burden of proving election to come under act. In an action against an employer for personal injuries, where the employer claims to have elected to come under the Workmen’s Compensation Act of 1911, the plaintiff has the burden of proving that defendant had rejected the act by showing that the proper notice had been filed with the Bureau named in the act.

3. Workmen’s Compensation Act, § 2*—when employer deprived of common-law defenses. An employer who has elected to reject the provisions of the Workmen’s Compensation Act of 1911 is deprived of his common-law defenses though the employee has not elected to come under the act.

4. Workmen’s Compensation Act, . § 2*—evidence admissible to prove election. In proving that an employer elected to reject the provisions of the Workmen’s Compensation Act of 1911, a copy of the notice of election certified to by the person charged with 'the custody of the original is admissible as the best evidence.


text:
    Alfred N. Deming, Administrator, Appellee, v. The Prudential Insurance Company of America, Appellant.
    (Not to he reported in full.)
    Appeal from the City Court of Herrin; the Hon. William W. Clemens, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 28, 1914.
    Rehearing denied and opinion modified October 28, 1914.
    Statement of the Case.
    Action by Alfred N. Deming, administrator of the estate of Claud Deming, deceased, against The Prudential Insurance Company of America to recover the amount of two life insurance policies issued by defendant on the life of plaintiff’s intestate. One of the policies was for $100 and the other for $500.
    The declaration contained two counts, each declaring on one of the policies and setting it out in full. To the declaration five special pleas were filed. The first averred that by the policy the liability of defendant was limited to a return of the premiums paid, if the insured was not in sound health. Pleas 2, 3 and 4 set forth certain questions and answers thereto contained in the application for insurance, with reference to the health of the insured. The fifth plea set out a question and answer in the application as to whether either parent or a brother or sister died of consumption, and averred that the answers were false. To the first plea a replication was filed stating that defendant’s agent was informed by the insured when the application was made that he was in sound health. The replication to pleas 2, 3, 4 and 5 stated that the answers relied upon in said pleas as a defense were written by defendant’s agent without the knowledge and consent of the insured. Plaintiff had a verdict and judgment for $507.10. To reverse the judgment, defendant appeals.
    Abstract of the Decision.
    1. Insurance, § 331

      —when provision requiring sound health of insured waived by knowledge of agent. A provision in a life insurance policy that if the insured is not in sound health when the policy is issued, the liability is limited to a return of the premiums paid, held waived where the agent of the insurer was informed that the insured was not in good health at the time, and this though the agent was not informed of the nature and kind of the ailment.
    This case was before the Appellate Court on a former appeal in 169 Ill. App. 96.
    John M. Herbert and Denison & Spiller, for appellant.
    Schwartz & Hays, for appellee; Morgan, Gallimore & Kendall, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, anti Cumulative Quarterly, samo topic and section number,

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Harris

delivered the opinion of the court.

2. Insurance, § 684 -—when question of waiver of provision in policy is for jury. In an action of a life insurance policy containing a provision that if the insured was not in sound health when the policy was issued the liability of the company should be limited to a return of the premiums, held that where the evidence tended to show that defendant’s agent was notified that the insured was not in sound health, the court did not err in refusing to direct a verdict for defendant on the ground that the evidence did not show the defendant was not informed of the nature and kind of the ailment.

3. Appeal and error, § 1401*—conclusiveness of verdict. The Appellate Court will not disturb a verdict as against the manifest weight of the evidence unless it is apparent that the evidence, if standing, alone is insufficient to support a verdict or the verdict is contrary to the evidence.

4. Appeal and error, § 1408*—when verdict may be set aside. The Appellate Court is warranted in disturbing the verdict of a jury as against the manifest weight of the evidence when the evidence considered most favorably in support of the verdict is so unsatisfactory from its kind or character, or where something has been said or done during the trial that impresses the court that the verdict is without evidence to support it or is the result of passion or prejudice.

5. Appeal and error, § 1410*—grounds for disturbing verdict, The question of the number of witnesses, weight of evidence and credibility of the witnesses is not a sufficient ground to justify the court in disturbing a verdict.

6. Appeal and error, § 1561*—when refusal of requested instruction harmless. A party is not entitled to a repetition of the law in his instructions, and has no right to complain if the court selects from his instructions those regarded by his counsel as the least important so long as the law involved is given to the jury as asked by him.

7. Appeal and error, § 1733*—conclusiveness of decision on former appeal. A decision of the Appellate Court on a former appeal in passing on instructions given and the admissibility of certain evidence, held conclusive on a subsequent appeal where the cases were tried on the same issues with practically the same instructions and the evidence offered being the same.

8. Appeal and error, § 1514*—when improper remarles of counsel not prejudicial. Improper remarks of counsel held not reversible error where nothing was said which appealed to sympathy or prejudice or was even disrespectful, except that counsel had spoken when not spoken to and replied when no reply was necessary.


text:
    James L. Nicholson et al., Appellants, v. Nicholson Goal Company et al., Appellees.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Washington county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Statement of the. Case.
    Bill by James L. Nicholson, Charles E. Dallam, Elizabeth A. Brown and others against the Nicholson Coal Company, M. M. Stephens and others to foreclose three mortgages.
    On October 15, 1912, and for some time prior thereto, the Nicholson Coal Company, of which John B. Brasher was president, owned and operated a coal mine near Nashville, Illinois, and held by deed or lease the coal rights connected with some five hundred acres of land and two town lots and also owned a large amount of mining machinery, buildings and articles of personal property, used in carrying on the business of mining. At the time mentioned there were three mortgages on all of said property, one to Charles E. Dallam for $22,000, another to Elizabeth A. Brown for $11,700,. and the third to William Kimmons for $1,400. Brasher was anxious to sell the mine, and in that connection called upon certain attorneys who interested M. M. Stephens, a client of theirs, in the matter. Brasher and Stephens were brought together and the matter of the sale discussed by them. Afterwards, on said October 15, 1912, the two met in the office of Johnson and Owen, when Stephens said he was not ready to consider the purchase of the mine but Brasher, who had a payroll for his mine which he was unable to meet, appealed to Stephens to loan him money to make these payments and, after some conversation, Stephens loaned him $2,400 for that purpose and received a note for that amount from the Company, executed by Brasher as president. At the same time a warranty deed for all of the above property was executed by the Company by Brasher, its president, conveying the same to Stephens, said premises being declared in said deed to be free from all incumbrances, except the first two above mentioned. In connection with the same transaction and at the same time, the following memorandum was drawn up and signed by Stephens:
    “This memorandum witnessetli: that there is now pending between the Nicholson Coal Company and M. M. Stephens, acting as trustee, for himself and others, a proposition for the sale, by the Coal Company, of its mining property and equipment at Nashville, 111., and that whereas it has been deemed advisable to have an expert examine the Coal Mine and the coal mining property and equipment before completing the transaction and it is necessary to provide the funds this day to said Nicholson Coal Company with which to make the payroll this day maturing, amounting in the aggregate to-Twenty Four Hundred (2,400) Dollars, and whereas the said M. M. Stephens and associates have advanced said money and have taken a note of the said Nicholson Coal Company therefor, bearing even date herewith:
    “Now, therefore, it is understood by and between the respective parties that in case the. report of the expert is favorable, that the sale of the said property to the said M. M. Stephens as trustee shall be absolute and all further and necessary deeds, conveyances, instruments or contracts to that effect will be executed by the Nicholson Coal Company, and that the estate in fee simple and in perpetuity will be vested in the said M. M. Stephens upon the terms hereinafter stated, and that on the other hand in case the report of the expert is unfavorable as to the said coal mine and coal mining properties, and the said M. M. Stephens shall so elect, that then, and in this event, the advance of the above named sum shall be considered merely a loan, payable according to the terms of said note, and upon the repayment of the same by the Nicholson Coal Company at maturity, said M. M. Stephens will relieve all claims to said property and the same shall reinvest in said Coal Company. It is further understood that if said report of the expert on said coal mine and coal mining properties is favorable, and the sale is consummated that then, and in that event, the said M. M. Stephens, Trustee, is to take the same subject to all existing liens and subject to the payment of the outstanding debts of the said Nicholson Coal Company (inclusive of the advance hereinabove referred together with the payroll maturing October 31st, 1912) all amounting in the aggregate to not to exceed the sum of Fifty Thousand ($50,000) Dollars and in addition thereto the grantor or its nominees shall receive Twenty Thousand ($20,000) Dollars worth of stock in the Corporation proposed to be organized to take over said property.
    Dated St. Louis, Missouri, this 15th day of October, A. D. 1912.
    M. M. Stephens.”
    Later, Stephens again advanced $2,400 to meet another fortnight payroll and took a note of the Company therefor, and at another subsequent time Stephens and Elizabeth A. Brown signed a note for a like amount for another payroll, when said Elizabeth A. Brown took charge of the mine to collect the amounts so advanced.
    Stephens thereafter had some connection with the ■operation of the mine, and he testified that while Brasher said he would turn over the mine to him it was never in fact so turned over and that he never had possession of the books or keys.
    The bill filed by complainants set out the indebtedness referred to in the three mortgages, showing the amount unpaid thereon, stating that appellants owned a part of said indebtedness and that the same was due by the terms thereof, and also set forth in full the above memorandum signed by Stephens. It further alleged that a favorable report was made upon said mine and the value of said property and thereupon Stephens accepted and caused to be recorded a deed to him for said property from the Nicholson Coal Company and took possession of the property and that he still holds the same; that complainants were informed that said Stephens denied his liability under said contract of purchase, and contended that the deed taken by him was only given to secure a loan and was in- fact a mortgage. The bill prayed for foreclosure of the mortgage and that if the debts due each of the complainants should not be paid by a day to be named by the court, that the premises be sold and the proceeds applied, first to the payment of the costs and of said mortgage liens and the surplus to the payment of the debts owing to the other complainants; that if the property failed to bring a sufficient amount to pay complainants in full, judgment be entered in favor of each of the same against said Stephens for any deficiency.
    Defendant Stephens filed his answer denying the material allegations of the bill and charging fraud and misrepresentation made by Brasher. He also filed his cross-bill setting up the execution and delivery of the deed and alleging that the agreement was, that the same was to be treated in the nature of a mortgage to secure the amounts advanced by him, and it prayed that the said deed might be decreed to be a mortgage and foreclosed and that a receiver might be appointed. A decree was entered, ordering the master in chancery to sell the property, and therein all the conflicting rights, interests and equities of the parties were reserved for further hearing and disposition by the court and the cause was referred to the master in chancery to take proof and report his conclusions and findings and recommend a decree. Afterwards the property was sold by the master in chancery for $4,000, the sale approved and deed for the same executed. The amount received was consumed by costs and fees and two judgments against the receiver and nothing was left to apply on the mortgage indebtedness. The master afterwards took the evidence as to the coudieting interests of the parties to the suit and reported the same, together with his conclusions to the court.
    Objections were ified before the master to his report and overruled and later, having been filed as exceptions, were overruled by the court. The court thereupon entered a decree approving and in accordance with the master's report and finding that by the memorandum entered into by appellant he had the right to elect to purchase said property if the same was acceptable to him or, if not acceptable, that said deed might be treated as a mortgage for the indebtedness due him from the Coal Company; that in case lie elected to purchase the property he was to take the same subject to all existing liens and subject to the payment of the outstanding indebtedness of the Company, the same however, not to exceed $50,000, including the mortgages; but that said Stephens did not assume or agree to pay any part of said outstanding indebtedness, except two payrolls of $5,000; that the deed to Stephens is a constructive mortgage upon which there is due the sum of $11,372.28, which is a lien on said property subject to the prior mortgages and judgment liens named in the prior decretal; that judgment should be and is rendered in favor of said Stephens and against said Nicholson Coal Company for said sum of $11,372.28, and that as to $4,800 of this amount, represented by the promissory notes of said Company, judgment is also rendered against said John B. Brasher. From the decree so entered, this appeal is prosecuted.
    Watts & Maxwell, for appellant.
    C. Porter Johnson and Malcolm D. Owen, for appellee Stephens. pellee Stephens.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Abstract of the Decision.

1. Mortgages, § 226*—when grantee not presumed to have assumed payment of debt. It will not be presumed that the grantee of real estate subject to a mortgage indebtedness has undertaken to pay off such indebtedness and relieve the grantor of his obligation to make such payment, unless it is plainly provided in the instrument of conveyance accepted by the grantee that he shall pay such indebtedness, or it is otherwise so provided by contract to which he is a party.

2. Mortgages, § 226*—when parol evidenc admissible to construe agreement as to assumption of debt. Pai Menee held admissible to explain the language of a mern'o, agreement with reference to whether the party signing tht "reed to pay incumbrances on real estate in case he purchai '

3. Mortgages, § 33*—parol evidence. Parol evic. .iSsible to show that a deed which is absolute in form , intended to he an equitable mortgage.

4. Mortgages, § 222*—when memorandum agreement oes not assume payment of mortgage indebtedness. A memorandum agreement entered into by a person considering the purchase of real estate, held not to show, when considered with or without the deed, any intention on his part to assume payment of a mortgage indebtedness against the property in case he should take the property.

5. Contracts, § 206a*—when third Party entitled to enforce contract. Before a third party can acquire a right which he can enforce in a contract between others, he must be a party to the consideration or the contract must have been entered into for his benefit.


text:
    Matt Krisman, Appellee, v. The Johnston City and Big Muddy Coal & Mining Company, Appellant.
    1. Workmen’s Compensation Act, § 2

      —presumption as to election. There is a presumption of law that both the employer and the employee are covered by the provisions of the Workmen’s Compensation Act of 1911 (J. & A. H1Í 5449 et seq.) unless it appears that one or both of the parties have filed an election to the contrary with the State Bureau of Labor Statistics as provided by the .tct.
    2. Wobkmen’s Compensation Act, § 12

      —when recovery in suit for damages cannot be sustained. In a suit against a mining company to recover damages for personal injuries sustained by a miner while the Workmen’s Compensation Act of 1911 was in force, a judgment for plaintiff cannot be sustained where there was no averment in the declaration that the parties were not under the provisions of the act and no proof to show that they or either of them had filed an election not to come under the act.
    3. Wobkmen’s Compensation Act, § 13*—necessity of preserving statutory notice in record. A ruling of the trial court excluding a certified copy of the official notice filed with the State Bureau of Labor Statistics under the provision of the Workmen’s Compensation Act of 1911 is not presented for review where the instrument is not preserved in the record.
    4. Appeal and ebbob, § 1078*—presumption in absence of cross-errors. An appellee must be presumed to be satisfied with the rulings of the trial court where he has filed no cross-errors.
    Appeal from the Circuit Court of Williamson county; the Hon. A. E. Somebs, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded with directions.
    Opinion filed November 9, 1914.
    Denison & Spiller, for appellant.
    Neely, Gallimore, Cook & Potter, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, samo topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Matt Krisman, a coal miner, brought this suit against The Johnston City and Big Muddy Coal & Mining Company to recover damages for personal injuries received by him while working in the coal mine of said Company in Williamson county. There were five counts in the declaration, but the last three were excluded from the jury and the verdict, which was for $2,000, was based on the negligence charged in the first two counts.

The first alleged that on July 30, 1912, appellee was working in one of the rooms of appellant’s mine, the roof of which was in a dangerous condition and liable to fall unless propped up; that there were no caps, props or timbers of sufficient dimensions in the room to prop the roof, and that for three days prior to said date, appellee had demanded such props and timbers from appellant’s foreman, but that appellant wilfully failed to furnish the same; that in consequence of such failure, appellee was injured by a fall from the roof. The second count stated the dangerous condition of the roof and alleged that appellant failed to place a conspicuous sign at the place of danger, as notice to all men to keep out.

As to whether appellant was guilty of the negligence charged in the declaration, we will not on this appeal concern ourselves, as the determination of the case must depend upon other reasons than those relating to its merits. At the time the injury complained of occurred, the Act providing for compensation for accidental injuries or death, approved June 10, 1911 (J. & A. HU 5449 et seq.), was in force and the same applied to the business in which appellant and appellee were engaged. Section 3 of this Act provided: “No common law or statutory right to recover damages for injury or death sustained by any employee, while engaged in the line of his duty as such employee other than the compensation herein provided shall be available to any employee who has accepted the provisions of this Act.” Paragraph A of subsection 3 of section 1 of said Act provides that every employer included in the act “is presumed to have elected to provide and pay the compensation according to the provisions of this Act, unless and until notice in writing of his election to the contrary is filed with the State Bureau of Labor Statistics.” Paragraph 0 of said subsection provides that when such election is made by the employer, the employee shall be deemed to have accepted all the provisions of said act and is bound thereby, unless within thirty days after his hiring and the taking effect of the act he shall file a notice to the contrary with the secretary of the State Bureau of Labor Statistics. It thus appears to be a presumption of law that both appellant and appellee were covered by the provisions of said act, unless it should appear that one or both of them had filed an election to the contrary with the State Bureau of Labor Statistics, as provided by law. Dietz v. Big Muddy Coal & Iron Co., 263 Ill. 480, 5 N. C. C. A. 419. There was no allegation in the declaration that the parties were not under the provisions of the act, and offered no proof to show that appellee had filed the notice required to exempt him therefrom. The record does show, however, that counsel for appellee said: “I desire to introduce plaintiff’s Exhibit A in evidence which is a certified copy of the official notice given by the defendant to the State Bureau of Labor Statistics, in which they refuse to operate under the provisions of the compensation act of the State of Illinois.” Counsel for appellant objected to the introduction of this exhibit for a number of reasons, among others, that it was not properly certified or proven, and the court sustained the objection and the exhibit was not admitted in evidence. The instrument sought to be introduced is not preserved in the record for our inspection, so that we have no means of determining whether the ruling of the court upon this question was proper or not and therefore it must be presumed that the instrument was properly excluded. Appellee must also be presumed to be satisfied with the ruling of the trial court in this regard as he has filed no cross-errors. Appellant upon the trial offered no proof upon this question. We are therefore bound by the act to hold that under the proofs produced in this case the parties were covered by the provisions of said compensation act and that therefore this suit for damages cannot be sustained.

The judgment will accordingly be reversed and the cause remanded with directions to the court below to give leave to appellee to amend Ms declaration by allegations charging that appellant was at the time of the injury transacting its business under said compensation act, so that evidence may properly be introduced by him upon that question, or to dismiss his suit without prejudice to his right to proceed under said act.

Reversed and remanded with directions.