text:
    Michael Cleary et al. v. The McWilliams Oil and Mining Co.
    1. Practice — Failure to file brief. — Where no brief is filed by the defendant in error, the decree is subject to reversal proforma.

    2. Contract — Equity.—The court is of opinion that the contract in question is too indefinito in its terms, and the relief sought too inequitable to justify the interposition of a court of chancery.
    Error to the Circuit Court of Montgomery county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed July 3, 1885.
    Messrs. Wise & Davis, and Mr John G. Irwin, for plaintiffs in error.
   Per Curiam.

Ho brief has been filed for the defendants in error, and under the rule the decree is subject to reversal pro forma for this reason, unless the court on examination of the record shall deem it proper to decide the case on its merits. The counsel for defendants in error have filed a statement in writing, to the effect that they have withdrawn from the case, and we are urged by counsel for plaintiffs in error not to reverse the case fro forma, but to decide it on the merits. The object of the bill and the scope of the decree is to enforce the specific performance of a written contract to make a lease on certain lands for " oil privileges.” After a careful examination of the record, we are of opinion that the contract in question is somewhat too indefinite in its terms, and the relief sought too inequitable, all the circumstances fully considered, to justify the interposition of a court of chancery; and that the proof is not sufficient to establish the material allegation that oil was found “in paying quantities” within the meaning of that term as employed in the contract and as explained by the witnesses. We are therefore of opinion that the decree should be reversed and the bill dismissed.

Beversed and bill dismissed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Moses Deer v. Isaac Code et al.
    Highway commissioners — Dotjbt as to line. — Under the circumstances of this case the court is not disposed, notwithstanding the doubt in regard to the line, to disturb the finding of the chancellor.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Opinion filed August 20, 1885.
    Messrs. Gere & Beardsley, for appellant.
    Mr. Francis M. Wright, for appellees.
   Per Curiam.

Appellant owned the S. W. 1/4 and the W. 1/2 S. E. 1/4 of section 4, in the town of Sidney and county of Champaign. Some time in 1882 a petition was presented to the commissioners of highways of said town to lay out a road from the northeast corner of the W. 1/2, N. W. 1/4 of section 10, town west on the section line between three and ten, and four and nine, to a north and south road about a quarter mile west of his residence. The prayer of the petition was granted, plat and report of survey returned, damages assessed to appellant, and the road ordered to be laid out on said line according to said petition and survey. The record of these proceedings was taken by certiorari to the circuit court, where the writ was quashed, and that judgment was affirmed on appeal in the Appellate and Supreme Courts. In April, 1883, appellees, who include the commissioners of highways, proceeded to open said road, and in so doing removed some fences and timber of appellant, which were within its boundaries as staked by the surveyor. Appellant rebuilt the fences, which the commissioners again removed. They also declared their intention to remove them as often as they should be rebuilt, and instituted suits against him for obstructing the highway and for maintaining obstructions therein. He then filed the bill in this case to enjoin them upon the ground that the road they are attempting to open is not on the section line, but north of it about fifty feet at his east line and nearly 200 at his west line. This is the sole issue of fact made by pleadings, and upon the proofs introduced the circuit court dissolved the preliminary injunction and dismissed the bill.

The evidence is conflicting. Much of it bears so remotely upon the issue that the conclusions reached require several steps of inference more or less uncertain, and are therefore more or less conjectural. It is not easy to determine on which side is the preponderance. In this condition considering that the time was not agreed on; that' some of the original monuments were gone; that the most careful survey, made upon correct principles, could not certainly ascertain the exact line as first established; that the commissioners intended to lay the road upon the true section line; that they used the best known means to that end and proceeded entirely according to the statute; that the surveyor employed was experienced and competent, and that he and the commissioners and petitioner believed it was so laid and in conformity with the petition and order, we are not disposed, notwithstanding our doubts about the line, to disturb the finding of the chancellor.

Decree affirmed.


author: Conger J.

text:
    Henry Keiser v. George H. Cox et al.
    Res adjudicata. — As the same questions were passed upon by this court upon the first appeal, the matter is res adjudicata.

    Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed August 20, 1885.
    Messrs. Kerrick, Lucas & Spencer, for appellant.
    Messrs. Williams & Capen, for appellees.
   Conger J.

For a full statement of this case see Cox et al. v. Keiser, 15 Bradwell, 432.

The case having been reversed and remanded by this court, the Circuit Court of McLean county, in accordance with the opinion of this court as found in 15 Bradwell, dismissed the original and amended petitions at the cost-of appellant.

From that decree this appeal is taken. Substantially the same questions arise that were before this court on the former appeal, and we are asked to review that decision; for were we to enter into a consideration of the merits of the controversy, and especially the effect upon the right of action of taking the acceptances, it would simply be reviewing the action of this court upon the first appeal. We have neither the power nor disposition to do this. These questions are res judicata. Moshier v. Horton, 100 Ill. 63; Ogle v. Turpin, 8 Bradwell, 453. The decree of the circuit court must be affirmed.

Affirmed.


author: Conger, J.

text:
    Eveline Johnson et al. v. Foreman & Sellers.
    Pleading. — The allegations and proofs must correspond and the decree must conform to the prayer of the bill. The material facts on which the plaintiff relies must be so distinctly alleged as to put them in issue.
    Error to the Circuit Court of Cass county; the Hon. C. Epler, Judge, presiding.
    Opinion filed August 20, 1885.
    Mr. J. S. Winter, for plaintiff in error.
    Messrs. Morrison & Whitlock and Messrs. Mills & McClure, for defendants in error.
   Conger, J.

This suit was instituted by Foreman & Sellers, defendants in error, against Eussell Sage and others, to enforce a mechanic’s lien for material furnished, against the leasehold interest of said Sage in the Star Mills of Beards-town, Ill. John M. Johnson, the owner of the fee in the lots on which the mill stood, was made a defendant, and after his death his wife and heirs at law were substituted. The petition alleged that defendants in error, by verbal contract with Sage, furnished certain materials, fixtures and machinery for the purpose of altering and repairing said mill, and that they were so used and had not been paid for. A copy of the lease from Johnson to Sage was made an exhibit to the petition, hut there was no averment that Johnson had any connection with the contract, or in any way had made himself or his interest in the premises liable to the lien. The prayer of the petition was that Sage be decreed to pay the amount due, and in default of such payment that all his rights, title and interest in said lots and mill be subjected to the lien of the petitioners, and he sold for the satisfaction thereof.

Upon a final hearing the circuit court decreed a lien against the entire property to the extent of $400, and ordered it sold for the payment thereof. This decree is clearly erroneous in going entirely beyond the allegations and prayer of the petition. It is an elementary doctrine that the allegations and proofs must correspond, and that the decree must conform to the prayer of the bill; that- however clear the evidence may make a case in favor of a complainant, unless the bill has proper averments he can not have a decree. Rowan v. Bowles et al., 21 Ill. 17; Kellogg v. Moore, 97 Ill. 282.

The material facts on which the plaintiff relies must be so distinctly alleged as to put them in issue. Handy v. Harding et al., 11 Wheat. 103.

It is insisted that the agreement of Johnson in the lease to furnish $100, together with his purchase ot‘ Sage’s leasehold interest in the premises, makes Johnson’s title and interest in the property liable to that extent. Without expressing any opinion upon the effect of such facts when properly pleaded and proven, it is sufficient to say they are not in the bill. If defendants in error desired to proceed upon the theory that Johnson had made his interest in the property liable to the lien, they should have alleged such facts as they relied upon with such clearness and distinctness as to put them directly in issue.

We think it our duty to allude to certain remarks in the brief of counsel for plaintiff in error in reference to the trial court. They were wholly uncalled for and highly improper. Such language, when used in the proceedings of courts of justice, whether emanating from bench or bar, never accomplishes good. We can not permit such action on the part of counsel t> pass unnoticed, and we sincerely trust it will not be repeated.

For the reasons above given the decree of the circuit court must be reversed and the cause remanded, when defendants in error can take such action in the premises as they may be advised is proper.

Reversed and remanded.


text:
    William E. Pease et al. v. John G. Egberts, Guardian, etc.
    1. Guardian — Application — Concealment op material pacts prom court. — When an applicant for guardianship letters is in possession of facts which he has every reason to believe would materially influence the court in acting upon his application, it is his duty to disclose them; and if, from a corrupt motive and with the, intention of over-reaching the court, be suppresses them, he is guilty of a wrong. The court is of opinion that the evidence sustains the charge of the petition, and that the guardian in this case sought and did use Tazewell County Court as an instrument to circumvent and evade the power of the Sangamon County Court.
    2. Power of court on petition to vacate its own judgment. — The court is of opinion that the order of the Tazewell County Court, declaring the proceedings in relation to the appointment of appellee as guardian null and void ab initio, was proper, the guardian never having dealt with innocent third parties, and the court having only the rights of the guardian and wards to consider.
    Error to the Circuit Court of Tazewell county; the Hon. N. M. Laws, Judge, presiding.
    Opinion filed August 20, 1885.
    Mr. Thomas C. Mather and Mr. Frank H. Jones, for plaintiffs in error;
    that the suppression of fact in a matter material to be known in a matter pending is both in law and in equity, equivalent to the assertion of falsehood, cited Lockridge v. Foster, 4 Scam. 569; Aortson v. Ridgway, 18 Ill. 23; Jackson v. Wilcox, 1 Scam. 344; Grove v. Hodge, 55 Pa. 504.
    The Probate Court of Sangamon county having acquired jurisdiction over the person and the fund and having administered the same for years, would retain it: People v. White, 11 Ill. 348.
    The appointment of a guardian in another court would be void: Dorman v. Ogbourne, 16 Ala. 759.
    Messrs. Palmers, Robinson and Shutt, for appellee.
   Conger, J.

On the 21st of February, 1870, John Gr. Roberts was, by the County Court of Sangamon county, appointed guardian of his two nephews, plaintiffs in erroi^ Wm. E. Pease, born Sept. 9, 1855 and Henry L. Pease, born Dec. 9, 1857, gave bond and received from the former guardian of his wards the sum of $5,371.83.

Oil the 25th of July, 1870, Hopper and Elliott, two of the sureties upon his bond, petitioned the court that said guardian, John Gr. Roberts, give a new bond or give them counter security under the statute, Roberts waived service of process, confessed the petition, and on the same day the court made an order in accordance with the prayer of the petition, that Roberts should within ten days give good counter security, or file a new bond. This order was wholly disregarded by Roberts, and on the 3d day of August, 1870, the court ordered that his letters be revoked, and he be removed from his office of guardian.

His two wards were then living in Tazewell county, and on the 29th of August, 1870, he applied to the County Court of Tazewell county to be appointed guardian for his wards by that court, giving to that court no information whatever of the fact of his having been the guardian, or of the former proceedings in Sangamon county. On the 7th day of September following he procured from Wm. E. Pease a paper signed by him, requesting the appointment of Roberts as his guardian, but which young Pease swears he did not read, nor did he know its contents; and on the same day Roberts also procured his father, Daniel Roberts, and his sister, Mary Pease, the mother of Wm. E. and Henry L. Pease, to sign with himself a bond in the sum of $5,400, both of which papers he presented to the Tazewell County Court. Neither Roberts nor his sureties had at the time sufficient property to make the bond goods

Mrs. Pease in her testimony says, in reference to her signature to the bond, that her brother, John G. Roberts, asked her to sign some guardian papers, but did not explain their object and meaning, and she signed a paper without knowing what it was, nor did she know at that time anything of the proceedings in Sangamon, county or that her brother was then seeking to be appointed guardian in Tazewell county.

On the day these papers were presented, the Tazewell County Court, in entire ignorance of the proceedings in Sangamon county, and of the insolvency of the parties to the guardian’s bond filed, and, taking it for granted that the written nomination of Roberts by Wm. E. Pease was the honest and intelligent choice of the ward, proceeded to issue letters of guardianship to Roberts.

On the 12th of September following, Roberts presented these letters, together with a statement of his account as guardian, showing balance due Wm. E. of $1,379.91 and Henry L. of $1,385.41, to the Sangamon County Court, and at some date not exactly disclosed by the evidence, but between the 7th and 12th of September, wrote the judge of Sangamon County Court a very indecent and insulting letter in reference to the orders of his court, and the use he might make of them.

At this point Roberts seems to have rested from .his labor. He never filed in Tazewell county any inventory, account, report or settlement whatever, nor did he make any further report to the Sangamon court, nor pay or attempt to pay his wards the balance due them.

In this condition the afiairs of the guardianship remained for over seven years, when, upon the 10th day of December, 1877, the wards filed their petition in the Tazewell County Court, setting forth these various proceedings, charging that the Tazewell county letters had been procured by the practice of fraud and imposition upon that court, praying their cancellation, and that the proceedings and orders under and by virtue of which they were issued be declared void. Roberts answered the petition, an issue was formed thereon, trial had, and an order entered canceling the letters and bond and declaring all the proceedings of that court in relation thereto null and void. Hpon an appeal to the Tazewell Circuit Court the order and judgment of the county court was reversed and the petitioners, Wm. E. and ITenry L. Pease, bring the record to this court for review. Two questions present themselves by this record: First, was the County Court of Tazewell county justified in finding that the letters issued by that court had been procured by fraud, and secondly, upon being satisfied of this fact, was its power in the premises confined to revoking the letters, leaving the original appointment untouched, or could it vacate and declare the whole proceeding null and void ah initio.

Upon the first question, it is urged by counsel for the guardian that he concealed nothing from the Tazewell County Court that the law required him to disclose; that it was not his duty, when applying for letters in Tazewell, to place that court in possession of the proceedings and transactions of another court.

Under ordinary circumstances there might be great force in this suggestion, but we do not regard it so under the facts of this case. It must be remembered that our statute has not fixed any method by which the county court shall proceed when about to appoint a guardian, to ascertain who may be a suitable person, leaving it to be determined by the discretion of the court, and the special circumstances of each case.

Hence it follows when an applicant for letters is in possession of facts which he has every reason to believe would materially influence the court in acting upon his application, it is his duty to disclose them, and if, from a corrupt motive, and with an intention of overreaching the court, he suppresses them, he is guilty of a wrong. We think it apparent that Roberts had reason to believe, and did believe, that if he placed the Tazewell court in possession of all the facts as they existed at the time of his application, he would fail in his object and remain subject to the orders of the Sangamon court, from which he was seeking to escape, and he therefore sought to and did use the County Court of Tazewell as an instrument to circumvent and evade the power of the Sangamon court. If his only object had been to release his sureties, by giving a new bond, it seems reasonable to suppose he would have offered it to the court appointing him, and to which he "was responsible, unless it was his intention to release them by fraudulently imposing upon the Tazewell court a worthless bond. His father had already been refused as a surety by the Sangamon court after the other sureties had begun their proceedings, and taking advantage of the confidence reposed in him by his sister and her child he procured one to sign his bond, and the other a written nomination of himself as guardian, both being ignorant of the contents and meaning of the papers they signed; presented them to the Tazewell court, knowing at the time that the bond was not good; gave no intimation to that court of the proceedings that had occurred in the county of Sangamon, but procured his letters, and then having, as he supposed, accomplished the purpose of defeating the lawful orders of the Sangamon court, gave expression to the true feelings and motives that actuated him by sending to the judge of the latter court an insulting message, which, because of its indecency, can not be here repeated.

If courts can not protect themselves from such impositions and wrongful practices they will become merely the instruments which designing men may use to carry out their fraudulent schemes.

The evidence, we think, sustains the substantial charge of the petition.

The order of the Tazewell County Court in declaring the whole proceedings in relation to the appointment of Roberts as guardian, null and void ah initio, we are inclined, after a careful consideration of the authorities, to sustain.

Counsel have cited no decisions of our Supreme Court upon this direct question, nor have we been able to find any. Those cited refer to the power of removal, which is not controverted, and throw no light upon the power of a court of law, upon motion or petition, to vacate its own judgments upon proof of fraud in their procurement.

Freeman on Judgments, Sec. 99, says: “The maxim that fraud vitiates everything is applicable to judgments; upon proof of fraud or collusion in their procurement they may be vacated at any time.”

In Brown’s Legal Maxims, page 232, the author uses the following language: “ But although the judgments of a court of competent jurisdiction upon the same matter will, in general, be conclusive between the same parties, yet such a judgment may be impeached on the ground of fraud, for fraud in the language of DeG-ay, 0. J., is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says, it avoids all judicial acts, ecclesiastical or temporal, and in a recent ease before the house of Lords, Earl of Bandon v. Beecher, 3 Cl. & Fin. 510, it was observed that the validity of a decree of a court of competent jurisdiction upon parties legally before it, may be questioned, on the ground that it was procured through fraud, contrivance or covin of any description, or not in a real suit, or, if pronounced in a real, substantial suit between parties who were really not in contest with each other.” We may add, that, if a judgment be obtained in a superior court clandestinely by abuse of its forms and by deceiving its officers, the defendant against whom it is sought to enforce such judgment inty obtain a speedy remedy by applying to have it set as ids.

In Elson v. Edson, 108 Miss. 590, Bigelow, C. J., gives expression to the following views:

“To a correct understanding of the points involved in the present case, it is to be borne in mind that the proceeding now before us is a petition by a party to a case, against whom a judgment has been rendered at a former term of this court in another county, asking that said judgment may be set aside and annulled on the ground that it was obtained by fraud. It is, in other words, an application to the court by one party in a suit against the other party to the same suit, to vacate a judgment rendered therein, and not an attempt to avoid the effect of a judgment in a proceeding purely collateral. * * * The question to be determined is whether a judgment, so obtained, can be re-examined and set aside by the party aggrieved by the fraud, or whether it is to be taken as forever binding and conclusive on the rights and obligations of the parties. The statement of the question is of itself sutiieient to make it apparent that if there is no remedy by which judgments so procured to be rendered can be impeached and annulled, courts of justice may be made instruments by which the grossest frauds may be successfully accomplished, to the great wrong and injury of innocent persons. * * * It is no doubt true, that a decree or judgment which stands unreversed and in force can not be called in question or impeached, in collateral proceedings, by one of the parties to the original suit; it is a very different proposition to maintain that an innocent party can not invoke the power of the court by which the original judgment or decree was rendered, to vacate and annul it on the ground that it was procured by fraud practiced on the court to his gross injury.

We, believe it to be an established principle of jurisprudence that courts of justice have power, on due proceedings had, to set aside or vacate their judgments and decrees, whenever it appears that an innocent party, without notice, has been aggrieved by a judgment or decree obtained against him without his knowledge, by the fraud of the other party. Is or is the principle limited in its operation to courts which proceed according to the course of the common law.

It is equally applicable to courts exercising jurisdiction .in equity, and to tribunals having cognizance of cases which are usually heard and determined in ecclesiastical courts. In tribunals of the last named description, whose decrees can not be reviewed by writ of error or reversed, the proper form of proceeding is by petition to vacate the former decree as having been obtained by fraud upon the party and imposition upon the court. See also Iierr on Fraud and Mistake, p. 293; Pomeroy’s Eq. Jur.,Vol. Sec. 919; Prudham v. Phillips, 2 Ambl. 763. If, during the time that Roberts’ appointment and letters stood unrevoked, other innocent parties had dealt with him upon the faith of such appointment, the power of the county court to absolutely annuli and cancel the original appointment, and thereby interfere with or affect the rights of such third persons . might well be doubted, but no such question arises upon this record, and we therefore express no opinion upon it.

Under his appointment Roberts never dealt with innocent third parties, nor did anything to affect the rights of others. In determining the prop t order to enter, the county court had only the rights of the guardian and wards to consider; and we think the order it made the proper one under the circumstances, not only with reference to the parties before it, hut that it might also protect its own dignity and prevent itself from being made an instrument in the hands of a designing man to accomplish a wrong.

The decision of the circuit court will he reversed and the cause remanded.

Reversed and remanded.


text:
    Benjamin Johnson v. Parmelia A. Drummond.
    T. Damages. — The damages sought to be recovered in an action should always be the natural and proximate consequence of the wrongful act complained of.
    2. Dram shop act. — Natural and proximate consequences.— Where appellee followed her intoxicated husband out in the street to watch him and see where he obtained his liquor, and the sidewalk being slippery she fell and injured herself. Held, that appellee's fall was not the natural and proximate consequence of her husband’s intoxication, and it was error to admit such evidence in an action by appellee under the Dram Shop Act.
    Appeal from the Circuit Court of Macoupin county; the Hon. W. L. Gross, Judge, presiding.
    Opinion filed August 20, 1885.
    Messrs. Yancey & Richards, for appellant;
    that the damages to be recovered in an action must always be the natural and proximate consequence of the wrongful act complained of, cited Tweed v. Ins. Co., 7th Wall. U. S. 44 Fent v. Toledo, P. & W. R. R. Co., 59 Ill. 349; T. W. & W. Ry. Co. v. Muthersbaugh, 71 Ill. 572; Phillips v. Dickerson, 85 Ill. 11.
    This rule applies in cases growing out of the sale of intoxicating liquors: Schmidt v. Mitchell, 84 Ill. 195; Shugart v. Egan, 83 Ill. 56.

      Mr. E. W. Hayes and Messrs. Corn & Shirley, for appellee.
   Conger, J.

This was an action under the dram shop law brought by appellee against appellant, and a recovery was had of $416.66$.

The evidence tends to show that about Nov. 1, 1893, appellee’s husband, having been entirely temperate for six or seven years, though before that time an habitual drunkard, again began to drink, and was intoxicated for some live or six weeks; that appellee was a nurse and midwife, and in consequence of being driven from her home by her husband, was injured in her means of support; also, that her husband squandered some $170 of her money that she had previously intrusted him with. Appellee was allowed to testify against the objection of appellant, that during the time her husband was intoxicated, she followed her husband on the street to see where he obtained his liquor, and while so doing, received a severe fall upon the sidewalk; that she was following her husband out in the street, watching him. It was about dusk in the evening; her husband came out of the saloon toward her; that in trying to get out of his sight, the sidewalk being slippery, and she not having her rubbers on, she slipped and fell, and that the fall hurt her so much that she never got over it.

We think that the admission of this evidence was improper. The damages sought to be recovered in an action should always be the natural and proximate consequence of the wrongful act complained of. Can it be said that appellee’s fall under the circumstances above stated, was the natural and proximate consequence of her husband’s intoxication? We think not. It is insisted that appellee, in following her husband out upon the street, was in the pursuit of the duty which lay upon her to prevent, if within her power, the continued drunkenness of her husband, and thereby place herself in a position to successfully maintain an action against appellant, and Beget v. Bell, 77 Ill. 595, is cited as sustaining such a theory.

The cases are very different. In that case the wife permitted her husband, during one night while lying in bed, to drink a jug of whisky, and the court say that the wife in that case was a willing party to the conduct of her husband, and instrumental in bringing the loss upon herself.

But it certainly can not be required of a wife, in order to maintain an action against one who sells liquor to her husband, and is in consequence thereof injured, that she shall leave her home and go upon the streets to watch him. She may do so if she chooses, but the law certainly does not cast that duty upon her as a prerequisite to bringing her suit.

What effect this evidence miy have had upon the jury we can not know, and therefore feel constrained to reverse the case, that upon another trial the damages that are the natural and proximate consequence of the injury complained of may alone be considered by the jury.

It follows from the foregoing that appellant’s third instruction should have been given, which is as follows:

" The court instructs the jury that the plaintiff is not entitled to recover any damages in this case for injury to her person if the jury believe from the evidence that such damage or injury to her person was sustained while the plaintiff was voluntarily following after her husband on the street, unless they further believe from the evidence in the case that her husband was the direct cause of said personal injury, while intoxicated, in whole or in part, by liqnor furnished by defendant.”

The judgment is reversed and cause remanded.

Beversed and remanded.


text:
    George A. Huff v. J. Y. Wallick.
    1. Contract — Instruction.—Where the contract was that “said ice is to be paid for at, etc., for merchantable ice.” Held, that it was error for the court in an instruction to eliminate from the contract and thereby ignore, the description of ice for which, by the terms of the contract, payment was to be made.
    2. Contract — Construction of. — The court is of opinion that a reasonable construction of the contract did not necessarily require a separation of the unmerchantable from the merchantable ice at the time of taking it from the ice house, but if it could be made by selling and receiving payment for the good ice only when delivered to customers, and, allowing the snow ice to remain upon the good ice, worked no injury to appellee, there is no reasonable objection to such a method of separation.
    Appeal from the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.
    Opinion filed August 20, 1885.
    Messrs. Gere & Beardsley, for appellant;
    cited Shields v. Reibe, 9 Bradwell, 598; Babcock v. Trice, 18 Ill. 420; Sigsworth v. McIntyre, 18 Ill. 126; Sandford v. Rawlings, 43 Ill. 92.
    Mr. Francis M. Wright, for appellee.
   Conger, J.

This was an action of assumpsit brought by appellee in the County Court of Champaign county against appellant, upon the following contract: Article of agreement made and entered into this 30th day of April, A. D. 1884, between J. Y. Wallick of the first part, and George A. Ilnff of the second part, both of the County of Champaign, and State of Illinois, witnessefch: That it is hereby agreed that said party of the first part sells to the said party of the second part,-a certain lot of ice, now in his possession, in the city of Urbana, in said county and State, not to exceed 450 tons. That said Ilnff is to take 150 tons by July first next, and 100 tons in each of the months of July, August and September. The said ice is to be paid for at the rate of $1.50 per ton for merchantable ice, and to be weighed on the scales most convenient, each party to pay for one half the expenses of weighing the same. * * *

It is hereby further agreed by the said Huff, that he will take said ice from the ice house in reasonable order, taking into consideration the condition that the ice is in when taken therefrom.” * * *

Huff proceeded under the foregoing contract to take the ice from the ice house, and retail it to his customers during the summer of 1881.

It appears from the evidence that a portion of the ice in the ice house was not clear, solid ice, but had some three inches upon some of the cakes made up of what is known as white or snow ice, made of snow which had fallen upon the water and frozen, and was not therefore merchantable ice.

Huff and his employes, in taking the ice from the ice house daily as needed to supply customers, instead of cutting off this snow ice at the ice house, loaded it into wagons and weighed it all together, but in dealing it out to customers, charged them for such portion only as was sound, clear ice, not weighing or accounting for the snow ice, upon the theory that it was of no value. Upon the trial below, appellee insisted that after the ice had been taken from the ice house, weighed, and delivered to customers by appellant, there was such an acceptance under the contract as would preclude him from showing that any portion of such ice was not in fact merchantable.

Upon this point appellant asked the court to give to the jury the following instruction;

“ The court instructs the jury that if, in this case, yon believe from the evidence that the defendant, Huff, has paid the plaintiff for the ice purchased from him at the rate of $1.50 per ton for the merchantable ice he was able, using due care, to remove from plaintiff’s ice house, and has also paid at the same rate for the waste in said ice because he did not take the ice out at the time and in the quantities specified in the contract in evidence, then in that case yon will find for the defendant.” Which the court refused to give, but amended the same by striking out the word “ merchantable,” and then gave it as amended.

This instruction, as presented to the court, was proper, and should have been given, The contract is clear and explicit, that “ said ice (is) to be paid for at the rate of $1.50 per ton for merchantable ice, and it was error for the court to eliminate from the contract, and thereby ignore, the description of ice for which, by the terms of the contract, payment was to be made.

It is true, if Huff liad inspected and received all the ice taken, under such circumstances as made it his duty to leave in the ice house, or upon the premises, such portion as did not come within the terms of the contract, he would be estopped from afterward claiming that any portion of the ice so taken was not merchantable; but the contract clearly implies that some portion of the ice was not merchantable, and that at some time Huff would have the right to determine what portion he would receive under the contract as merchantable. The question is, When was it Huff’s duty to make this selection? Had he removed from each block or cake of ice the imperfect, unmerchantable portion, and left it upon the ground to melt, we suppose no one would insist upon his liability to pay for such waste; but because instead of doing this useless work, troublesome and expensive to himself, and utterly valueless to Wallick, he allowed the snow ice to remain upon the cakes, selling them in that condition, but receiving payment for the good ice only, it is insisted that he has thereby accepted the snow ice as merchantable.

We think a reasonable construction of the contract did not necessarily require a separation of the unmerchantable from the merchantable ice at the time of taking it from the ice house, but if it could be made by selling and receiving payment for the good ice only when delivered to customers, and that allowing the snow ice to remain upon the good ice worked no wrong or injury to Walleck, there could be no reasonable objection to such a method of separation.

It follows from the foregoing reasons that this modification of appellant’s second instruction and the giving of appellee’s first instruction was also erroneous. It is also urged that the evidence did not warrant the jury in finding so large a verdict, but as tins case must be tried again we express no opinion upon that question.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Peter Nicholson et al. v. Robert A. Mitchell.
    1. Garnishment — Replevin—Chattel mortgage. — Where appellee, claiming certain property under a chattel mortgage, replevied it from a constable who had levied upon the same, and appellants, creditors of the mortgagor, garnished appellee, and appellee then proceeded to sell the property under and by virtue of the mortgage. Held, that appellee was not liable as garnishee to answer to appellants for the goods, because the goods he had replevied were in the custody of the law, and not subject to a second seizure until their final disposition and ownership was determined by the court from which the writ of replevin issued; that if the mortgage was good as to any part of the prop ;rty, appellee was entitled to hold such portion, and such part (if any) that the mortgage would not hold, the law would require him to return to the constable.
    2. Instructions. — Instructions should always be clear, accurate and concise statements ot the law, as applicable to the facts of the case.
    Appeal from the Circuit Court of Greene county; the lion. G. W. Herdman, Judge, presiding.
    Opinion filed August 20, 1885.
    Messrs. Withers & Henshaw, for appellants;
    that the garnishee should have stated facts to discharge him and the judgment of the court as to the sufficiency of his answer, was erroneous, cited McCoy v. Williams, 1 Gilm. 584; Crain v. Gould, 46 Ill. 293.
    The property was not in the custody of the law and was subject; to garnishment: Bruner v. Dyball, 42 Ill. 34; Jacobi v. Schloss, 7 Coldw. 385.
    A chattel mortgage which allows the mortgagor to sell the goods and appropriate the money, is void as to creditors: Dunning v. Mead, 90 Ill. 376; Greenebaum v. Wheeler, 90 Ill. 296.
    Mr. James R. Ward, for appellee;
    that appellee, as the agent of the plaintiff in the replevin proceedings at the time of the service of the attachment writ upon him, had temporarily the legal custody of the property in controversy and was not amenable to garnishment process, cited Roberts v. Dunn, 71 Ill. 49; Rhines v. Phelps, 3 Gilm. 464; Hagan v. Lucas, 10 Peters, 403, Goodheart v. Bowen, 2 Bradwell, 580; Kimball v. Mulhern, 15 Ill. 208.
    There is no priority between appellee and Sehnell which is indispensable to maintain garnishment: I. C. R. R. Co. v Weaver, 54 Ill. 322; May v. Baker, 15 Ill. 90; Webster v. Steele, 75 Ill. 546.
   Conger, J.

On March 23, 1882, Finley & Sehnell executed to A. K. Mitchell a chattel mortgage to secure $1,000 on certain fixtures, supplies and goods in a bakery and restaurant. In July, 1882, Finley went out of the partnership, leaving Sehnell in possession, and about this time $500 was paid and credited upon the mortgage. On December 28, 1882, the town of Greenfield obtained judgment against Sehnell, and on the next day an execution was issued on said judgment, and by Jacob Schennerhovn, town constable, levied upon the' mortgaged property and some other property in the possession of Sehnell. At this time A. K. Mitchell, the mortgagee^ was in Texas, and his son, Robert A. Mitchell, appellee in this case, was acting as his agent, and as such had possession of the mortgage. Appellee, as such agent, and by vircue of his father’s mortgage, demanded possession of the property from the constable, and upon his refusal to deliver it up, sued out a writ of replevin in the name of his father, and against the constable, by means of which on the 2d day of January, 18S3, he obtained possession of the mortgaged property which lie retained until he afterward sold it.

On the lOt’.i of January, 1833, Peter Nicholson et al. (appellants herein) being creditors of Schnell, sued out an attachment against Schnell, and on January 11th appellee was served as a garnishee of Schnell. On January 13th appellee, as agent of his father, proceeded to sell the property taken from the constable, under and by virtue of the mortgage, and received for the fixtures $310, and for the remainder of the goods $300. Before the final disposition of the replevin suit appellee answered as such garnishee, denied having any effects in his hands belonging to Schnell, and was discharged by the court, and obtained judgment against appellants for costs.

The record is quite voluminous, embracing the papers and files of the other suits mentioned, and a number of points are discussed, but the gist of the case is confined within very narrow limits.

It is insisted by appellants that the chattel mortgage was fraudulent and void, at least so far as the stock of goods, and therefore appellee, having the goods in his hands at the time of the service of the writ of garnishment upon him, must respond for their value to the creditors of Schnell. In the view we take of the case, the validity or invalidity of the mortgage is not material to a proper decision of the merits of this controversy.

When appellee took possession of the goods from the constable by virtue of the writ of replevin, he was not liable as garnishee to answer to appellants therefor, first, because the goods he had so replevied were in -the custody of the law and not subject to a second seizure until their final disposition and ownership was determined by the court from which the writ of replevin issued, and second, if the mortgage was good as to any part of the property, he was of course entitled to hold such portion for his father, and such part (if any) that the mortgage, for any reason, would not hold, the law would require him to return to the constable, or be liable on his replevin bond.

The fact that appellee, after service of the garnishee process upon him, sold the goods, and converted them into money, does not change his relation to the parties, or his liability to account for the value of the property; he would still be liable to the constable for the value of all such property as he could not hold under the mortgage.

Appellee having taken the goods from the constable by legal process, he could not be made to answer to any one else either for the goods or their value, until his right to hold them had been judicially determined.

Some objections are made to the instructions given appellee. We think they are substantially correct, but the whole series are subject to criticism on account of their extreme length.

Nearly eight pages of solid printed matter is occupied with those given and refused, many of them so long and intricate that they tend to confuse rather than enlighten an ordinary jury. The language of Justice Scott, in Adams v. Smith, 58 Ill. 419, seems quite appropriate in this connection: “ Instructions should always be clear, accurate and concise statements of the law as applicable to the facts of the case. It was never contemplated under the provisions of the Practice Act that the court should be required to give a vast number of instructions, amounting, in the aggregate, to a lengthy address. It is a mischievous practice, and ought to be discontinued. A few concise statements of the law applicable to the facts are all that can be required, and are all that can serve any practical purpose in the elucidation of the case.”

Finding no substantial error in the record the judgment of the circuit court is affirmed.

Affirmed.


author: Wall. P. J.

text:
    School Directors, Dist. No. 2, etc., Ford County, v. School Directors, Dist. No. 4, etc.
    1. School districts — New district. — A bill in chancery, by a newly created, school district, to compel the payment by the old district ot the amount found due upon the division. Held, that such a case presents ground for relief in a court of equity.
    2. Shit barred by delay. — Where a bill in chancery, by a newly created school district, to compel the payment by the old district of the amount found due upon the division, was not filed until thirteen years had elapsed after the division. Held, that as the trust is an implied one, arising by operation of law, the delay of thirteen years in bringing the suit is a bar to recovery.
    3. Trusts — When Statute of Limitations applies. — As to express trusts, strictly and technically so called, where the exclusive jurisdiction is in equity, there is no bar in actions between trustee and cestui que trust based upon delay in bringing the suit; but as to implied trusts arising by operation of law, the maxim, *• Vigilantibm non dormientibus equitas subvenit ” applies, and the action will be barred by the time fixed by the statute in analogy to the limitation of similar actions at law.
    Error to the Circuit Court of Ford county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed August 20, 1885.
    Messrs. Tipton & Moffett, for plaintiffs in error;
    that the claim is barred by the Statute of Limitations, cited 2 Dillon on Municipal Corporations, § 675; School Directors v. School Directors, 105 Ill. 653; County of Piatt v. Goodell, 97 Ill. 84; Trustees v. Trustees, 81 Ill. 470; School Directors v. Miller, 49 Ill. 495.
    Mr. A. Sample, for defendants in error;
    cited Jackson v. Norris, 72 Ill. 364; Steele v. Clark, 77 Ill. 471; Directors v. Directors, 73 Ill. 249.
   Wall. P. J.

This was a bill in chancery filed by School Directors, District No. 4, town 23, north, range 9 east, in Ford county, against School Directors, District No. 2, same township.

It is alleged in the bill that District Ho. 4 was carved out of said District Ho. 2; that the property of the district was appraised as required by law, and the amount found due complainant was $162.60; that the same has never been paid; that the township trustees have not taken, and will not take steps to compel payment, and prays that said District Ho. 2 be compelled to pay said amount to the township treasurer for the use of the complainant. A demurrer to the bill was overruled and an answer was then filed denying substantially the material facts alleged in the bill setting up payment and the Statute of Limitations five years.

The cause was heard upon bill, answer, replication and proofs, and a decree was entered in favor of complainants, to reverse which the defendants brought their writ of error.

The record is thus presented for our consideration, and it is urged, first, the facts set up in the bill furnish no ground for relief in a court of equity, and second, the claim if it ever existed is barred by the Statute of Limitations five years. The case of School Directors v. School Directors, 73 Ill. 249, was like the case before us, a bill in chancery by a newly created district to compel the payment by the old district of the amount found due upon the division, and it was insisted that the case presented no ground for relief in a court of equity; that the remedy at law was complete, and that the bill should have been dismissed for that reason. But the Supreme Court held the objection not tenable; that the fund was a trust fund, and that when paid to the treasurer it would be held for the use of the district under the control of the trustees; that the district could not sue at law, and having no means of compelling the trustees to act, the district as the eestui que trust had a right to file the bill and have the fund collected and applied to its legitimate use, thus preventing its loss or perversion.

This authority therefore clearly settles the first point against the plaintiffs in error. As to the second point, the bill was not filed until thirteen years had elapsed after the division, of the district and the appraisement of the property, and it is urged that this is a stale claim and that it is barred for that reason. On the other hand it is urged that the fund involved being a trust the delay in filing the bill is no valid objection to the relief sought It is a fundamental maxim that equity aids the vigilant, not those who slumber on their rights; and it is said that the principle operates throughout the entire remedial portion of equity jurisprudence. It is an important rule, controlling and restraining the courts in the administration of all kinds of relief, and in some of its applications it may properly be regarded as a special form of the more general principle that he who seeks equity must do equity.

It is designed to promote .diligence, discourage laches, by making it a bar to relief, and to prevent the enforcement of stale demands wholly independent of Statutes of Limitations, and is invoked in suits for injunction to obtain remedy against fraud, and in all classes of cases, except perhaps those brought to enforce a trust against an express trustee. Pomeroy, Eq. Jur., Vol. 1, Sec. 418-19.

Trusts are usually divided and considered under the heads of express trusts and implied trusts. Express trusts are those which are created by the direct and positive acts of the parties by some writing, or deed or will. Implied trusts are those which are deducible from the transaction as a matter of clear intention, but not found in the words of the parties, or which are superinduced mpon the transaction by operation of law as matter of equity, independent of the particular intention of the parties. 2 Story’s Eq. Jur., Sec. 980. Pomeroy says, Vol. 1, Sec. 152, “All possible trusts, whether of real or personal property, are separated by an important line of division into two great classes: those created by the intentional act of some party having the dominion over the property done with a view to the creation of a trust, which are express trusts; those created by operation of law when the acts of the parties have no intentional reference to the existence of any trusts, which are implied trusts.”

Angelí on Limitations, Sec. 166, states the rule to be that a trust, in the strict and technical sense, is not subject to the Statute of Limitations, but in order to be exempt from the bar it must be a direct trust; it must be of the kind belonging exclusively to the jurisdiction of a court of equity, and the question must arise between the trustee and the cestui que trust. It is further said by the same author, that the most common mode of creating a direct trust not cognizable at law is by the appointment and qualification of executors and administrators. Being simply and technically trustees, there is no principle of equity which can admit of their holding to the exclusion of the parties beneficially interested. And though the statute does not apply in such cases, yet it has been invariably maintained that it' a trustee should deny the right of his cestui que trust and assume absolute ownership of the property he held in trust, he abandons his judiciary capacity and the statute will apply; and, quoting from Mr. Justice Story, the author further remarks, that when it is said the Statute of Limitations does not apply to cases of trust, it is material to consider the sense in which that proposition is to be understood, and that even in cases of express trusts, if an open adverse claim is set up by the trustee against the cestui que trust and the trust denied, there is much reason to hold that the bar ought to be admitted to arise after that period; and the author finally remarks, “that in cases of implied trusts in relation to personal property and to the rents and profits of real estate, when persons claiming in their own right are turned into trustees by implication, the right of action in equity will be considered as barred at the end of the time limited by the statute in analogy to the limitation of a similar action at law.” Sec. 178.

The term “ direct trust,” as used by this writer, we understand to be synonymous with the term “ express trust,” as employed by Story and Pomeroy; and the rule to be drawn from the authorities cited would seem to be that as to express trusts strictly and technically so called, where the exclusive jurisdiction is inequity, there is no bar in actions between trustee and cestui qxie trust, based upon delay in bringing the suit, but as to implied trusts arising by operation of law the maxim “mgücmtibus non dormientibus equitas suhvenit,” applies, and the action will be barred by the time fixed by the statute in analogy to the limitation of similar actions at. law. The trust in question arises by operation of law, and is in the plainest sense of the term not an express, but an implied trust. It grows out of the fact that a new district has been formed from an existing district, and that the law provides in such cases that all school property belonging to the district out of which the new one is formed shall be appraised in a just and equitable manner, and the estimated value shall be distributed by the trustees among the districts concerned, in proportion to the amount of taxable property in each. Gross, Stat. 1869, Ch. 93, Sec. 33. This is a trust by operation of law merely, and is subject to the rule embodied in the maxim above quoted. We are therefore of opinion that the delay of thirteen yejirs in bringing this suit must be held a bar to recovery.

The decree of the circuit court is accordingly reversed and cause remanded with directions to dismiss the bill at the cost of the complainants therein.

Be versed and remanded.


author: Wall, P. J.

text:
    Charles L. Rutledge v. Drainage Commissioners District No. 6, etc.
    1. Drainage — Assessment op damages — Variation in line.— Where proceedings under the drainage law are had to appropriate property upon a certain line, the line so specified must be followed. If a substantially different line is adopted there must be another assessment, and it will not answer the purpose to say tint it is not more injurious to the land than the first line, and therefore no new proceeding is necessary. As the line in this case was a substantial variation from the line indicated by the plat, the injunction should have been granted.
    2. Injunction — Formal defect. — Where the bill prayed that defendants might be enjoined from doing the work in question. Sdd, that the omission in the bill to ask for process is purely a formal defect.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed August 20, 1885.

      Messrs. Kerrick, Lucas & Spencer, for appellant;
    that injunction was a proper remedy in this case to prevent a threatened continuing trespass, cited Willett v. Woodhams, 1 Bradwell, 411; McIntyre v. Storey, 80 Ill. 127.
    Appellee must construct its drain as indicated by its map or plat introduced upon the trial of the question of damages:, Jacksonville & S. R. R. Co. v. Kidder, 21 Ill. 132; Peoria & R. I. R. R. Co. v. Birkett, 62 Ill. 332; Village of Byron v. Blount, 97 Ill. 65.
    Messrs. Tipton & Beaver, for appellees;
    that an injunction will not be granted to restrain a trespass unless the trespasser is insolvent or the injury irreparable and destructive of the plaintiff’s estate, cited Hilliard on Injunctions, 279; Jewett v. Dix, 20 Mo. 79; Ex parte Foster, 6 Eng. (Ark.) 304; Willson v. Hughill, 1 Morr. 461; Catching v. Terrill, 10 Ga. 576; Shipley v. Ritter, 7 Md. 408; Brooks v. Diaz, 35 Ala. 590; Ingraham v. Dunnell, 5 Met. 118; Mohawk, etc., R. R. Co. v. Archer, 8 Paige, 83; Dana v. Valentine, 5 Met. 8.
    When a bill prays for relief by way of injunction and contains no prayer for process of injunction, the writ of injunction can not be granted: Wood v. Brodell, 3 Sims. 273; Union Bk. v. Kerr, 2 Md. 460; Story’s Eq. Pl. § 41, note 2.
   Wall, P. J.

This was a bill in chancery by appellant, to restrain the appellees from proceeding as drainage commissioners to open a ditch for drainage purposes across the land of complainant in the bill.

It appears that a drainage district having been organized pursuant to the act of 1879, embracing the lands of complainant, the commissioners filed a map or plat of the work determined upon, and a trial was had by jury before a justice of the peace to ascertain the damages sustained by complainant by reason of the construction of the ditch over his land.

Upon this trial it was discovered that the plat so filed did not truly show the line as it was located by the commissioners. The line as shown by the plat is not marked with accuracy. It was not surveyed, and there is nothing to show the precise course it should take. It is merely a curved line starting from the northern boundary, running south and west and passing out on the western boundary of the complainant’s land. There was an old ditch which the commissioners intended to follow, starting from the north line of the land at the point indicated by the plat in question, and running in the same general direction as the line shown by the plat, but not so far south, and passing out on the west line of the land several hundred feet north of the point indicated by the plat. The line of the old ditch is somewhat irregular, following mainly the natural depressions of the surface, and is evidently shorter than the line shown by the plat.

On the trial there was evidence as to the damages which would be sustained by adopting either line, and it appeared by the proof that the line as indicated by the plat would be more injurious to the land than that of the old ditch. The complainant insisted, however, that the jury should estimate the damages upon the line as indicated by the plat, and it is to be presumed this was done, though it appears from a stipulation of facts contained in the record that a part of the jury considered the line of the old ditch. The damages were assessed by the jury at §50, which amount was tendered to complainant and refused by him.

An amended or supplemental plat was then filed by the commissioners, showing the line to be along the old ditch, and work was commenced on that line. This bill was then filed to enjoin the prosecution of the work. The cause was finally heard upon bill, answer, replication and proofs, and a decree was entered dismissing the bill, from which an appeal is prosecuted to this court, and the question for determination is whether, upon the facts stated, the complainant was entitled to the relief of a perpetual injunction restraining the construction of the ditch upon the line now proposed, it being the line originally designed by the commissioners, but variant, as already stated, from the line shown by the plat. It is urged by appellant that he was clearly entitled to such relief because the effect of the proceedings is to appropriate his property to public use in a manner not authorized by law. It is not to be doubted that when an effort is made to apply private property to public use, the damages must first be ascertained and paid pursuant to the constitution, and if this is not done the owner may have relief by injunction. McIntyre v. Storey, 80 Ill. 127.

Here there was an attempt to comply with the law, and had the work been prosecuted upon the line indicated by the plat, there is no question that the proceedings would have been justified. But it is argued that as the line so indicated is not followed, the whole proceeding is to be regarded as a nullity and the work enjoined accordingly.

It has been held that where a railroad company undertake to condemn a line for right of way it is necessary to follow the line indicated by the plat or survey filed with the proceedings, and if there is any substantial variation, producing additional damages, the land owner must have additional compensation accordingly. J. & S. R. R. Co. v. Kidder, 21 Ill. 132. P. & R. I. R. R. Co. v. Birkett, 62 Ill. 332. The constitution of the State provides, Art. 2, Sec. 13: “Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by jury as shall be provided by law.” This provision is imperative and must be enforced according to the true spirit and intention thereof.

When proceedings are had to appropriate property upon a certain line, the line so specified must be followed. There must be no substantial variation. If a substantially different line is adopted there must be another assessment, and it will not answer the purpose to say that it is not more injurious to the land than the first line, and therefore no new proceeding is necessary. If such an excuse could be accepted, then a material question for a court of equity to determine when asked to enjoin the construction of the work would be whether the new line is more injurious than the old, thus primarily calling upon a court of equity to ascertain the amount of damages occasioned by the new line, and thus substituting the judgment of the court for that of the jury. The constitutional requirement that the damages “shall be ascertained by jury” can not be evaded in this manner. Hyslop v. Finch, 99 Ill. 171.

The only inquiry, then; is whether there is a substantial variation from the line indicated by the plat. Upon this point there is little room for doubt, and indeed we do not understand counsel dispute the proposition. It is merely urged that as there is no irreparable injury a court of equity will not interfere. But as we have already shown, before the court can say there is no irreparable injury it must first settle a question which by the constitution is reserved for the consideration of a jury.

It is suggested by counsel for appellee that, “Where a bill prays for relief by way of injunction and contains no prayer for process of injunction the injunction can not be granted.” The bill prays that defendants may be enjoined from doing the work in question and the omission in the bill to ask for process is purely and at most but a formal defect.

The defendants below demurred to the bill and assigned five different causes of demurrer but did not specify this as one. ^

The demurrer was overruled and defendants then answered the bill; manifestly, then, the point cannot now be considered for the first time. We are of opinion that the complainant below was entitled to the relief prayed, and the decree of the circuit court is reversed and the cause remanded with directions to grant the prayer of the bill.

Reversed and remanded.


text:
    James O’Halloran et al. v. Kate C. Kingston.
    1. Construction of statute. — While penal statutes are to receive a strict construction, yet, when the provision is clear, free from doubt and within the scope of the legislative power, it is the duty of the court to administer it according to its fair and reasonable intent.

      2. Dram Shop Act. — In a suit under the Dram Shop Aot it will not avail the defendant to show that other persons sold liquors to the intoxicated person.
    8. Witness. — Where a witness knowingly testifies untruthfully upon a material point, the jury may discard all his evidence, except so far as corroborated.
    4. Instructions. — Although one of the instructions was not technically accurate, yet, as other instructions upon the same point stated the law very fully and fairly, and as the same verdict would undoubtedly have been ren_ dered had the instruction been properly modified or wholly refused, the judg. ment is affirmed.
    Appeal from the Circuit Court of Jersey county; the Hon. G. W. Herdman, Judge, presiding.
    Opinion filed August 20, 1885.
    Hr. A. A. Goodrich and Mr. T. F. Ferns, for appellants;
    as to construction of statute, cited Freese v. Tripp, 70 Ill. 496; Meidel v. Anthis, 76 Ill. 241; Fentz v. Meadows, 72 Ill. 540; Tetzner v. Naughton, 12 Bradwell, 148.
    Messrs. Hamilton & Slaten, for appellee.
   Wall, P. J.

"The appellee brought suit against the appellants to recover damages under the 9th section of chapter 43 entitled “ Dram Shops,” for injury to appellee’s means of support by reason of the intoxication of her husband, caused, as alleged, by liquors sold to him by the appellants. There was a trial by jury and verdict for plaintiff for five hundred dollars. The circuit court overruled a motion for new trial, and judgment was rendered upon the verdict. Various errors are assigned. It is urged that the evidence does not support the finding of the jury. We have carefully examined the testimony and are of opinion that it amply sustains the conclusion that during the period in controversy, about five years, the husband was an habitual drunkard; that at the beginning of tin's period he was possessed of property worth eight or ten thousand dollars, and had a fair practice as a physician, supporting his family in a comfortable and respectable manner; that during this period he wasted his property, lost his practice, and that the plaintiff was in consequence seriously injured in her means of support; and we think it is also clearly shown that each one of the defendants contributed in an appreciable degree to this habitual intoxication, and that they must have done so knowingly. The verdict is very moderate in amount when all the circumstances are considered, and it does not appear that the jury were governed by passion, prejudice or other improper motives. The statute under which the action is brought is quite penal in its character, but as to the point in question it is quite clear. It declares that ‘‘every * * * wife * * * who shall be injured in person, or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in * * * her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication in whole or in part, of such person or persons.”

The Supreme Court in King v. Haley, 86 Ill. 106, said of this provision, “ Construction can hardly make it plainer than it is.”

While penal statutes are to receive a strict construction, yet when the provision is clear, free from doubt, and within the scope of the legislative power, it is the duty of the courts to administer it according to its fair and reasonable intent, and it is not admissible to fritter away, by mere construction, a plain legislative enactment. It is urged that as to some of the appellants the proof is not sufficient; that it does not show that their sales contributed in any substantial or material degree to the habitual intoxication of the plaintiff’s husband. As already stated, we think this position not well taken. It is shown that he visited all the places in question and obtained more or less liquor at each. How much he obtained at each and to what extent the act of each defendant contributed to the habitual intoxication it is impossible to state with certainty. The court instructed the jury that before the defendants could be held liable it must appear that the liquors furnished by them were the efficient and proximate cause, either wholly or in part, of the intoxication complained of. This instruction was repeated in several different forms, and the jury must have understood the proposition therein contained. We are unable to disagree with their finding in this respect. It was no doubt to meet just such cases the statute was devised when it laid its penalty upon “ the person or persons who may have caused the intoxication in whole or in part.” And while those who contribute in a small degree may be thus made to suffer as much as those who are more culpable, yet it is a condition which is applied to the traffic in liquors which the legislature had the power to impose, and which the courts can not ignore.

It must be remembered also that the risk thus involved was known to and therefore voluntarily assumed by appellants when they engaged in the business, so that, in a legal sense, it can not be said that they are surprised by the enforcement of the law. With the policy of the law we have nothing to do. That is a question for the legislature. It is urged that the court erred in refusing to admit evidence of the habits of the person in question previous to the period in question. It will not avail the defendants to show that other persons sold liquor to the intoxicated person. Emory v. Addis, 71 Ill. 273; Hackett v. Smelsley, 77 Ill. 109. There might be cases where habitual intoxication is alleged in which proof of the previous habits of the party might throw light upon the question as to whether the act of defendant had contributed in a legal sense to the result, but we are unable to see how such evidence could be important in this case. The habitual intoxication was so well established and running through so long a period that there can be no doubt in that regard, and xve think there xvas no substantial error in excluding the proposed evidence. It is also urged that the court erred in allowing proof of personal violence suffered by the plaintiff at the hands of her husband while intoxicated. Such evidence was admitted but xvas afterward excluded from the jury upon motion of defendants; and itjs said that although it xvas so excluded the effect produced by it upon the jury was not thereby removed, and hence the action of the court in admitting it is error, for xvhich the judgment should be rex-ersed. There xvas an allegation in the declaration under which this proof might have been made and we are not advised why it was not properly admitted; but if it was not the error was cured by excluding it from the jury. As before stated the verdict is moderate in amount, and it is apparent the jury were not influenced by the evidence even if the court improperly admitted it in the first instance. There is nothing in this to justify a reversal. The circuit court instructed the jury very fully upon the essential elements necessary to justify a recovery, and while appellants make a general objection in this respect vet we find no ground for complaint, and are of the opinion that the instructions, as a series, fairly state the law as to this branch of the case.

It is urged with considerable force and confidence that the 13th instruction given for the plaintiff, as to the effect and weight of conflicting testimony, is erroneous. That instruction informed the jury that the testimony of one credible witness is entitled to more weight than that of many others, if, as to those others, the jury believe from the evidence that they have knowingly testified untruthfully, and are not corroborated by other credible evidence. Where a witness knowingly testifies untruthfully upon a material point, the jury may discard all his evidence, except so far as corroborated; and if this instruction had been intended to advise the jury as to the proper test for discarding the evidence of an untruthful witness, it should have contained the qualification that the false testimony must be upon a material point before the witness can be considered as impeached, and his whole evidence disregarded except so far as it may be corroborated by other credible evidence. Peak v. The People, etc., 76 Ill. 289; Hartford Life & A. Ins. Co. v. Gray, 80 Ill. 28; Wan v. The People, etc., 98 Ill. 610; Gibson v. Troutman, 9 Bradwell, 94; Prickett v. Madison Co., 14 Bradwell, 467. In the present case the only matters to which the jury could have understood this instruction to refer were tq on material points; and while the instruction is not technically perfect in this respect we think the omission worked no such mischief as to justify a reversal for this cause. We regard the instruction, however, as intended for the purpose of advising the jury as to the relative weight to be attached to testimony of conflicting witnesses, 'where one is credible and the others appear to have knowingly sworn untruthfully; and the vice of it is in laying down, as a matter of law, that the former is worth more than the latter. Such as a matter of fact may or may not be true; much would depend upon the capacity, intelligence, means of knowledge and interest of the several witnesses as well as the nature of their testimony.

I There were other instructions, however, which very fully and fairly laid down the rule upon this point for the guidance of the jury in weighing the evidence; and while this instruction is subject to the just criticism that by it the court invaded the province of the jury, yet when all the instructions are considered in connection with the testimony, we are not prepared to say the judgment should be reversed for this reason. Looking at the whole case as presented by the record, we have no doubt the same verdict would have been rendered had the instruction been properly modified or wholly refused.

| Where such a view is properly taken, it would be unjust to set aside the judgment. Other objections have been urged, hut we deem them not of sufficient importance to call for a statement. After a careful consideration of the record we find no substantial error, and the judgment of the circuit court is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Smith

text:
    Chicago Great Western Railway Company, Appellee, v. Pittsburgh Spring & Steel Company, Appellant.
    Gen. No. 15,382.

      Conteacts—pertaining to claim, for rebates construed. Held, that the terms of the particular contract in question in this case did not entitle a railroad company to recover of a company engaged in manufacturing springs for its use, rebates in connection with the construction of springs for car manufacturers engaged in providing new equipment for such railway company.
    Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and judgment here.
    Opinion filed March 3, 1911.
    Job & Taylor, for appellant.
    Charles T. Farson and Gardner, Stern & Anderson, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The principal question presented on this record is the one of liability.

Appellant, Pittsburgh Spring & Steel Company, brought a fourth class action in the Municipal Court of Chicago, against the Chicago Great Western Railway Company for $996.40 balance due for springs sold and delivered. The Railway Company subsequently commenced an independent first class action in the same court against the Steel Company for the recovery of rebates alleged to be due from the Steel Company on springs sold and delivered by it to F. M. Hicks & Co. and to the Pullman Company, and used by them in the manufacture of cars for the Railway Company, such rebates being equal to the difference between the prices paid by the Railway Company in pursuance of its contracts with the Hicks Company and the Pullman Company, and the contract price for springs in the annual contract between the Railway Company and the Steel Company. These suits were consolidated, and were tried together as one suit before the court without a jury, and a judgment was rendered in favor of the Railway Company against the Steel Company for $2,311.48, being the difference between the total amount found by the court to be due from the Steel Company to the Railway Company, for so-called rebates, and the amount due from the Railway Company to the Steel Company for springs furnished under the annual contract between them.

In the case brought by the Railway Company against the Steel Company, a declaration was filed containing two special counts, one in which the contract with the Hicks Company was set out, and the other in which the contract with the Pullman Company was averred. These counts set out the making of the contract between the Railway Company and the Steel Company and its breach by refusing to give the plaintiff Railway Company the benefits as to prices of its annual contract, in the construction of the cars by the Hicks Company and the Pullman Company.

The question of liability for the rebates involved in this action turns, as stated by attorneys for appellee, on the construction of the contract between the Steel Company and the Railway Company. If, under that contract the Railway Company is entitled to receive from the Steel Company all that the latter collected from car building companies for springs sold to them and used by them in cars built for the Railway Company, in excess of the prices for springs fixed in the •contract between the Steel Company and the Railway Company, then a right of action may exist, assuming that legal proof is made. The first question then is the question of intent of the parties as expressed in the terms used in the contract between them. The contract is in writing and reads as follows:

1 ‘ St. Paul, Minx., Dec.-, 1905.
A. D. Ward, Esq.,
Pur. Agent Chicago Great Western Ry.,
St. Paul, Minn.
Dear Sir:—
We beg to submit, herewith, our proposition to furnish your Company with locomotive, passenger, and Freight Car Springs on your current orders for repairs, and also for such springs as may be required for new equipment ordered during the term of this agreement; you to require the Locomotive and Car Companies to purchase and use our springs.
We will furnish the Chicago Great Western Railway and lines controlled and operated by it with springs at the following prices:
Locomotive Driving & Engine Truck
Springs ........................3.75^ per lb.
Plain End Tender Springs...........3.62%^ per lb.
Full Elliptic Tender Springs,.........3.50^ per lb.
Coach & Caboose Elliptic springs.....3.50^ “ “
Coach Equalizing, Coil Driving and Freight-Bolster and Draft springs and all other coil springs of steel not less than %" diam. round,... .1.75^ “ “
M. C. B. Standard Pressed Steel
Freight Bolster Plates............95$ per set.
(of 4 top and 4 bottom plates.)
This price includes cost of assembling the bolster springs into groups ready for application.
All springs covered by this contract to be Open Hearth Steel Pennsylvania Analysis. Terms net Thirty (30) days from date of invoice.
We will guarantee all Locomotive springs for one ' year and Coach & Caboose Elliptic and Freight Bolster springs for five years, and will replace any that fail upon their return to us, we paying freight both ways to and from point of delivery named.
We will deliver all springs on your current orders f. o. b. Chicago, Ill., and springs for new equipment to points where Locomotive and Car Companies are located if not west of East St. Louis, Chicago, Ill., or south of Louisville, Ky.
We will repair springs at the above prices for new material used, and charge you 2.90c per pound for reworking the old material and credit you with scrap at market prices, you to deliver the old springs f. o. b. cars at Pittsburg, and we to prepay on return to Chicago, Ill.
Delays in making deliveries due to fires, strikes or other reasons' beyond our control will relieve us of liability.
This contract to take effect January 1st, 1906, and to remain in force for one year from that date.
Respectfully submitted.
Pittsburgh Spring & Steel Co., (Signed) by Rank & Coodell,
Agents.”
“Accepted.
A. D. Ward,
For C. C. W. Ry.
Date December 19, 1905.”

The particular language relied upon as expressing the intention of the parties to make the Steel Company accountable to the Railway Company for these rebates, or, for the amount of the excess in prices charged to the car manufacturing companies for the springs over and above the prices named in the contract to the Railway Company, appear in the first paragraph of the contract, and in the provision: ‘ And also for such springs as may be required for new equipment ordered during the term of this agreement; you to require the- Locomotive and Car Companies to purchase and use our springs;” and in the paragraph of the contract reading: “We will deliver all springs on your current orders f. o. b. Chicago, Ill., and springs for new equipment to points where Locomotive and Car Companies are located, if not west of East St. Louis, Chicago, Ill., or south of Louisville, Ky.”

We think there can be no doubt that the contract contemplates all direct sales of springs to the Railway Company, whether the springs are required by the Railway Company for repairs or for new equipment, and whether used by the Railway Company itself in making repairs, or in constructing new cars, or by Locomotive and Car Companies employed by the Railway Company by special contracts or otherwise, where the Railway Company purchased the springs and furnished them to the car manufacturing companies to be used in the construction of cars. Such purchases of springs by the Railway Company would clearly fall within the intent of the parties as expressed in the terms of the contract. The sales here involved, however, in the action by the Railway Company against the Steel Company, are sales to the Hicks Company and the Pullman Company of springs used by those companies in fulfilling certain contracts made by them with the Railway Company for new equipment, and the controversy between the parties is whether or not such sales are also within the true intent and meaning of the contract, and must be made at the prices named therein for springs sold to the Railway Company, and if not so made a breach of the contract results.

In our opinion such sales made by the Steel Company to locomotive and car companies are not within the terms of the contract, and are not controlled or affected by the prices named therein. We find no terms or language in the contract which directly express any such intent of the parties, or which by any reasonable construction can be made to express sucb intention. There are no provisions in the contract whereby the Steel Company was to be informed when it made its prices for springs to car manufacturers, that they contemplated using the Steel Company’s springs in the building of cars for the Eailway Company. Nor is there any provision requiring the Steel Company to make inquiry as to such use of its springs when it was requested to make prices to car manufacturers. We do not find any agreement in the contract requiring the Steel Company to pay back to the Eailway Company any excess prices, or to account to it in any way for any excess prices which it received from car builders over the contract prices named in the Eailway Company’s contract. There is nothing in the contract, or in the relation of the parties to it, created thereby, from which by construction or otherwise any obligation arose on the part of the Steel Company to pay over to the Eailway Company, or account to it for the excess of prices, or rebates, sued for in this action.

It is clear, we think, that if any such obligation on the part of the Steel Company exists, it must grow out of or spring from the contract set out in the declaration, and finding no such obligation in the contract or springing from it in the course of the business contemplated therein, we hold that no right of action is shown by the special counts of the declaration, or either of them; and we further hold that the evidence fails to show that the Steel Company has in its possession money which in equity and good conscience belongs to the Eailway Company, and hence the evidence fails to show that the latter company has any right of action against the Steel Company upon the common counts in the declaration.

Holding that no right of recovery exists in favor of appellee, it is unnecessary to discuss the other assignments of error.

It is agreed and conceded that the Railway Company became indebted on November 14, 1906, to the Steel Company in the sum of $996.40 for a shipment of goods on that date by the Steel Company to the Railway Company, for recovery of which the Steel Company brought suit against the Railway in the Municipal Court of Chicago. That suit was consolidated with this cause. Appellant, Pittsburgh Spring & Steel Company, is therefore entitled to a judgment against appellee, Chicago G-reat Western Railway Company, for the sum of $996.40, with interest thereon from November 14, 1906, amounting to $1,208.

The judgment of the lower court is reversed, and on a finding of facts judgment is entered here in favor of appellant, Pittsburgh Spring & Steel Company, against appellee, Chicago Great Western Railway Company, for $1,208 and costs in this and the Municipal Court of Chicago.

Reversed with finding and judgment here.


text:
    Mary A. Healy, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,392.

      Evidence—when admission of agent binding. Held, that conversations between a motorman and a supervisor of the company in which the supervisor made remarks tending to show that the car in question which caused the injury was out of repair, were competent, hut not as part of the res gestae.

    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed on remittitur.

    Opinion filed March 3, 1911.

      Remittitur filed March 6, 1911.

      John E. Kehoe and Watson J. Ferry, for appellant.
    Edward Maher and H. E. Wynekoop, for appellee; Morse Ives, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This action is prosecuted by Mary A. Healy, appellee, against the Chicago City Railway Company, appellant, to recover damages claimed to have been sustained by the appellee at or near the intersection of Archer avenue and Twenty-second street, in the city of Chicago, on the 13th day of August, 1907, while she was a passenger on one of the appellant’s street cars.

The car involved in the occurrence was what was known as a Wallace and Center avenue car. These cars, in going south, start from the down-town district of the city of Chicago, and run in State street to Nineteenth, and thence southwesterly in Archer avenue.

It appears that appellee, a clerk in the employ of the Craig Mercantile Agency, boarded the car at Washington and State streets, at the close of her day’s work, to go to her home in East Twenty-seventh street. It was a small, open summer car, the seats extending from side to side, there being no aisle in the center, and with a partition at either end, partly wood and partly glass; and on the platform sides, and immediately behind the motorman’s post, was a seat facing the latter; behind the partition was a seat facing, the rear. Appellee was seated in the latter seat. It further appears from the evidence that when the car reached Sixteenth street a fuse blew out, which detained it for a short time, and then it was pushed by another car to Nineteenth street, at which point an employe, designated as a “supervisor,” was stationed; that after he, the conductor and the motorman had opened and examined the fuse box and replaced the burnt-out fuse with another, the car ran slowly, five or six blocks, to Twenty-second street, and that there the second fuse blew ont, and as a result smoke and flame were seen, as some of the witnesses testified, coming from the motor box, while others were just as positive that it came from the canopy switch box, located at the under side of the roof of the car, immediately over the motorman’s head, and that thereupon many of the passengers in a panic started to leave the car; but whether appellee was pushed or stepped off does not appear. In being pushed off, or while leaving the car she suffered the injuries for which damages are sought in this case.

No question is made as to the sufficiency of the averments of the declaration to sustain the action, or as to the admissibility of the evidence thereunder. Hence, we do not set out the averments of the declaration, except to say that the defendant is charged in the declaration with carelessness and negligence, whereby a large amount of flame and smoke in the car were occasioned, and that the flame and smoke produced a panic among the passengers, by reason of which the passengers made a rush to depart from the car, and that the defendant carelessly and negligently suffered and permitted the said car to be in disrepair and a fuse to explode in the car, causing the smoke and flame and noise.

The grounds relied upon for reversing the judgment in this court are, first, that the evidence is insufficient to sustain the verdict; second, that errors were committed in the admission of improper, and the rejection of proper, evidence; and, third, that the amount of damages awarded is grossly excessive.

Upon a careful consideration of the evidence in the case, we are of the opinion that the evidence sustains the verdict and judgment except as to the amount thereof. Chicago U. T. Co. v. Newmiller, 215 Ill. 383.

It is urged that in the examination in chief of appellee’s witness, Miss Kennedy, she was allowed to testify to a conversation which she overheard between the supervisor of appellant and the motorman of the car at Nineteenth and State streets. She testified that “the supervisor got on, and he said to the motorman, I understood him to say, ‘try the second’—what he said that I heard was, ‘try the second motor, Pete, and go slow.’ That is all I heard him say. It was the supervisor that said that.”

And the same objection is made to the examination of appellee’s witness, O’Grady, who testified that at the same place there was something said by the supervisor to the motorman, and that the supervisor told the motorman to run slow, that the car was out of order. “He told the motorman to put on the second motor and run the car slow. The motorman said the car was ‘done for.’ ”

Miss Walsh, another of appellee’s witnesses, was allowed to testify to what she overheard between the same employes of appellant, to substantially the same effect.

It is urged that this testimony was not admissible, because it was not a part of the res gestae. We do not think it was a part of the res gestae, but we think it was competent upon the question of negligence, charged in the declaration, as tending to show that appellant had permitted and allowed the car to be in disrepair and out of order, and that appellant knew that the car was out of order at Sixteenth and State streets, some little time before the accident in question occurred.

Upon the question of the amount of damages awarded by the jury, after a careful consideration of the evidence in the case we are of the opinion that the damages awarded are excessive. In our opinion the damages for the injuries sustained, attributable alone to the injuries suffered by appellee from this accident, should not exceed in amount the sum of $1,500. If, therefore, appellee shall remit the sum of $500 within ten days, the judgment will be affirmed for $1,500 with costs. Otherwise, the judgment will he reversed and the canse remanded for a new trial.

Affirmed on remittitur.

Remittitur filed and judgment affirmed March 16, 1911.