text:
    D. H. Harts, Appellee, v. Chicago and Alton Railroad Company, Appellant.
    1. Railroads, § 941

      —when instruction as to origin of fire erroneous. In an action against a railroad company for1 damages by fire alleged to have been caused by sparks and cinders being thrown upon plaintiff’s building by defendant’s locomotive, an instruction on question of the origin of the fire, which in effect states that plaintiff is entitled to a verdict if it furnished more evidence on that point than defendant, held inaccurrate and misleading.
    2. Railroads, § 943

      —when verdict for damages resulting from railroad fire excessive. In an action for damages resulting from loss of plaintiff’s mill and machinery therein resulting from emitting of sparks and cinders of defendant’s locomotive, a verdict and judgment for plaintiff for $16,000 held excessive, where the evidence shows that plaintiff purchased the mill and machinery and lot for $15,000 and the machinery was out of date and the business of conducting the mill had run down and was unprofitable.

      3. Railroads, § 919

      —burden of proving origin of fire. In an action against a railroad for loss of a building by fire alleged to have been caused by sparks from defendant’s locomotive, it is incumbent upon the plaintiff to furnish evidence sufficient to establish to the satisfaction of a reasonable mind the fact that the engine did throw sparks and cinders that started the fire.
    4. Jury, § 80

      —questions which may be propounded to jurors. In an action against a railroad company for loss of a building by fire caused by sparks from defendant’s locomotive, held error for trial court to refuse to permit defendant on examination of jurors to ask the jurors if they were acquainted with the officers of, had stock in, or were agents of, or had any connection with certain insurance companies which were beneficiaries in the suit.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    Rehearing denied and modified opinion refiled November 6, 1913.
    Blinn & Covey, for appellant; Silas H. Strawn, of counsel.
    David H. Harts, Jr., Bates, Harding, Edgeeton & Bates and Bargee & Hicks, for appellee.

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

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

   Mr. Justice Creighton

delivered the opinion of the court.

This was an action on the case brought by the appellee against appellant Company, to recover for damages alleged to have been caused by reason of a locomotive engine of appellant throwing sparks and cinders to, upon and into the building of the appellee whereby the building of appellee was destroyed by fire and the machinery therein greatly damaged.

The plea of the general issue was filed and the cause was heard by the court and a jury and a verdict returned assessing the damages of the appellee at the sum of $16,000. After overruling motions for new trial and in arrest of the judgment, the court entered judgment in the sum of the verdict, and thereupon this appeal was perfected.

The building belonging to the appellee which was destroyed by fire was a mill, located on a lot adjoining the right of way of the appellant’s railroad, in Lincoln, Illinois. The fire occurred in the afternoon of the 15th day of August, 1910, destroying the mill building and damaging the machinery.

The question of how the mill was set afire was a very closely contested question of fact. There was no direct testimony bearing upon this question. Two witnesses for appellee testified to a heavily loaded coal train passing along the track of appellant’s railroad, going north, just a short time prior to the discovery of the fire. One of them, a Miss Gwynn, testified that the train passed shortly before the fire, going north, and that she saw sparks and cinders coming from the engine. She was unable to tell whether it was daylight or dusk at the time, and stated that it did not rain that evening, while many others stated it did rain. Miss Gwynn was in the company of a Mr. Hoblit, who testified to the same state of facts. Mr. Hoblit’s testimony, while very definite as to the fact of the train passing along on that evening, going north, was very uncertain as to other matters about which he was questioned, and his admission that he was not engaged in any business of any kind and that he had but recently served a term in the penitentiary did not serve to strengthen his statements.

On the part of the appellant it was shown by the records of the train dispatcher’s office that the last engine passed through Lincoln more than an hour before the fire was discovered. Moreover, the evidence shows conclusively that a wreck had occurred at Williamsville, sixteen miles south of Lincoln, at 3.25 on the same afternoon, and that no trains were able to pass through that point going north until about eight o’clock that night, some two hours after the fire had been discovered. The train crews which passed through Lincoln that afternoon testified that the locomotive engines on their respective trains were equipped with the latest approved and most efficient spark arresters, and that the said engines were in the hands of skilful employes at the time.

There is much other evidence tending to support the respective positions of the parties hereto, but the foregoing chiefly is relied upon by them upon the question of the origin of the fire, and shows how closely contested this particular point was on the hearing. In this condition of the proof, the jury should have been carefully and accurately instructed on this point.

At the request of the appellee the court gave to the jury the following instruction:

“The court instructs the jury that while it devolves upon the plaintiff to show by a preponderance of the evidence that the fire in question was caused or set out by fire, sparks or cinders thrown or escaping from a locomotive engine of the defendant company, while passing along its, defendant company’s railroad and that the property of the plaintiff was burned or destroyed or damaged without fault on his part, yet it is not necessary for the plaintiff, in order to make such proof to sustain the declaration to show that such sparks, cinders or fire were seen thrown or were seen to escape from the defendant’s engine and alight or set fire by some person or persons; it is sufficient on that point if, from all the circumstances detailed by the witnesses and all other evidence introduced on the trial, that the greater weight on that point is on the side of the plaintiff then you are at liberty to say that the plaintiff has established that fact by a preponderance of the evidence.”

This instruction is inaccurate and misleading, and might easily have been understood by the jury to have advised them that very slight circumstances tending to show that appellant’s engine emitted sparks and cinders on the occasion in question would be sufficient to warrant a verdict in favor of the appellee.

It was incumbent upon the appellee to furnish evidence sufficient to establish to the satisfaction of a reasonable mind the fact that the engine did throw sparks and cinders that did, in fact, start the confiagration. This duty was imposed by law upon the appellee, and it cannot be said that because the appellee furnished more evidence on that point than the appellant, that he is thereby entitled to a verdict, and yet that is what this instruction said to the jury. If the appellant had not introduced any evidence the appellee would not have been relieved from proving his case by evidence,-—not to create a suspicion, not more evidence than an opponent who did not furnish any evidence,—but evidence sufficient to establish, as a fact, the origin of the fire.

In addition to the proof being so closely contested upon the question of whether appellant’s engine threw sparks and cinders and thereby set fire to the mill, the evidence is uncertain and unsatisfactory as to the amount of the damages sustained by the appellee.

The proof shows the mill building which was destroyed had been built for about fifty years, and that the machinery in the mill had been there for some twenty-five years; that the appellee had purchased the mill, including the machinery and the lot upon which the mill was built, for $15,000; that very little had been expended for improvements; that after the fire appellee found that machinery to the value of $1,300 or $1,400 had been saved; that the business conducted in the mill had run down and was not profitable; that much of the machinery in the mill was out of date and was not in use and that the mill was not operated as a regular mill, but for grinding feed. The lot upon which the mill stood is still the property of the appellee.

From a full and careful examination of all evidence in this record upon the point of the damages, we feel that the amount of the judgment herein, $16,000, is excessive, in the light of the price paid for the whole property, the value of the machinery saved, the use to which the mill building was put and the fact that the appellee still has the lot upon which the mill stood. There is much evidence in the record upon this point, but a careful reading of it has failed to overcome the view here expressed, that the judgment is excessive.

It is insisted by appellant that the trial court erred in refusing to permit it, on the examination of the jurors for the purpose of ascertaining whether or not they were acceptable, to ask the jurors if they were acquainted with the officers of, had stock in, or were agents of or had any connection with the Hartford Fire Insurance Company, the Hanover Fire Insurance Company or the Springfield Fire & Marine Insurance Company.

These insurance companies, while not mentioned as plaintiffs in the declaration, were, in fact, beneficiaries in the suit to the extent of $10,000; and being thus interested it became important, in determining as to the qualifications of the jurors, to learn of their connection with, relation to, or prejudice in favor of such companies.

The interest of these several insurance companies seems to have been well understood by counsel, and for the purpose of guarding against any prejudicial influence against appellant these questions were properly propounded to the jurors, and it was error to deny to appellant the right of inquiry.

For the reasons above set forth, the judgment is reversed and the cause is remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Creighton

license: Public Domain

text:
    William E. Wilson, Appellee, v. Polly Ann Phares, Administratrix, Appellant.
    1. Executors and administrators, § 269

      —when receipt for advancement not evidence of settlement for labor and services performed for deceased. In a proceeding to have certain notes, executed hy deceased,to her son, allowed as claims against the estate of deceased, the son’s receipt for an advancement whigh stated that interest thereon would not he charged, held not evidence that the parties understood the remission of interest to he in settlement for labor and services performed by the son, so as to show that a note executed by deceased therefor two and one-half years thereafter was without consideration.
    2. Executors and administrators, § 270

      —when evidence insufficient to show consideration for promissory note executed by deceased. Judgment of Circuit Court, on appeal from Probate Court, allowing notes given by deceased to claimant as claims against the estate, affirmed on condition of remittitur of a portion of the amount of one of the notes, there being no evidence to show the sufficiency of the consideration therefor and it appearing that the note representing such portion was clearly a gift without consideration.
    Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochean, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed if remittitur filed; otherwise reversed and remanded.
    Opinion filed October 16, 1913.
    Ingham & Ingham and John Fuller, for appellant.
    Edward J. Sweeney and Herrick & Herrick, for appellee.

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

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

   Mr. Justice Creighton

delivered the opinion of the court.

This was a claim filed on the 7th day of August, 1911, by the appellee in the Probate Court of DeWitt county against the estate of appellant’s intestate, in the aggregate sum of $9,960.27, where a judgment was rendered for the sum of $10,472.54, and by appeal of the administratrix the cause was heard in the Circuit Court of that county, by the court and a jury, and a verdict was returned for appellee in the sum of $10,472.54. Upon the coming in of the verdict appellee remitted $3,369.66, whereupon judgment was entered in favor of appellee in the sum of $7,102.88. From this judgment the cause lias been brought to this court by the further appeal of said administratrix.

The following may be stated as the substantial facts in the case relative to the claim.

At the death of appellee’s mother, which occurred in May, 1911, appellee held three promissory notes, bearing dates and for the amounts as follows: One note for the sum of $1,000 dated May 1, 1902, due one year after date, and not providing for interest; one note for the sum of $2,000 bearing no date but being due July 5, 1904, and not providing for interest; and one note for $4,100 dated July 15, 1904, providing for interest at the rate of six per cent, from date and due in one year. All of these notes were signed by Elizabeth Wilson, appellant’s intestate, the mother of both appellee and appellant.

The appellee was called by appellant as a witness, and his statement, in effect, was that the consideration for the first note of $1,000 was for insurance money arising from the collection of an insurance policy upon his father’s life by his mother, and by his consent used by the mother, and the interest, which, together with the interest amounted to the sum of the face of the note at the date thereof; that the consideration for the second, or $2,000 note, was part payment for ten years ’ labor for his mother by appellee, after he attained his legal majority on the farm, at $20 per month; that the consideration for the third note was the $400 balance due him for labor on the farm of his mother and interest thereon; and that the remainder of the note was, in the language of appellee, for ‘1 standing by my mother for thirty-one years.”

The further evidence appears in the record that an advancement was made by the mother to appellee, which was shown by the following instrument, to-wit:

‘ ‘ State oe Illinois.
DeWitt County.
To Elizabeth Wilson and her children:
This certifies that I, William E. Wilson, son of Elizabeth Wilson, do hereby acknowledge in writing the receipt of Thirty-seven Hundred dollars ($3700.00) from my mother Elizabeth Wilson as an advancement on my interest in the estate of Elizabeth Wilson, my mother, at her death. That I received the same as an advancement as one of her children but that there is to be no interest to be charged up to me on the said Thirty-seven hundred dollars ($3700.00) what would be the interest of the said $3700.00 is to be set off by the labor and services that I performed for my mother Elizabeth Wilson, after I had attained the age of twenty-one years. And I hereby consent that my interest in the estate of my mother Elizabeth Wilson shall be charged with said sum of $3700.00 at the death of my mother. It is further stipulated that my mother and my sisters and brother were consulted and informed as to the terms of this acknowledgment of my advancement before it was reduced to writing.
Dated this 3rd day of January A. D. 1902.
William E. Wilsoh (Seal).”

The consideration as to the first or $1,000 note is conceded to be sufficient, and this should be allowed together with interest at five per cent, per annum from the maturity thereof.

The consideration for the second or $2,000 note has, in our opinion, been established by proof of labor and services rendered by appellee to his mother during her lifetime and after his arriving at his legal majority, and interest should be computed on the amount of this note from maturity.

The consideration for the third or $4,100 note consists of three items: First, the $400 being the balance due appellee for labor for ten years on the farm of appellant’s intestate after the $2,000 note had been given; second, the sum of $1,416, composing the consideration for this note, is for the interest agreed by appellant’s intestate to be paid to appellee upon the amount due to him for labor on the farm of Ms mother, as aforesaid. These two items are supported by proof as being a valuable consideration for the part of the note represented and are legal and just claims against tMs estate, and, taken together, with interest at the rate of six per cent, being the rate fixed in this note, from the maturity of the note until said 16th day of July, 1912, amounts to the total sum of $2,689.50.

As to the remainder of said note, amounting to the sum of $2,284, the sufficiency of the consideration is not shown by the evidence. It was clearly a gift, without consideration', and cannot be allowed as a claim against the estate of the deceased. This is clearly established by the evidence of appellee.

It is insisted by appellant that the receipt for the advancement of $3,700 to appellee is evidence of a settlement for the labor performed by appellee for the deceased.

When it is considered that the advancement was made January 3, 1902, and two and one-half years thereafter the note representing a part of the value of the labor performed by appellee on the deceased’s farm was executed, it would seem there could not be any reason for the contention of appellant upon this point. The mother seems to have been, from all of the transactions, competent to transact any ordinary business, and to accept the theory of appellant that she regarded this advancement as a settlement of the labor question between herself and her son would be to hold that she was incompetent and did not understand the ordinary methods of transacting business. In the face of the proof in this record we would not be warranted in concluding that the advancement was considered by either of the parties thereto as a settlement for the labor performed by appellee for appellant’s intestate.

We are, therefore, of the opinion a judgment in favor of appellee and against the estate of appellant’s intestate should be allowed in the sum of $6,952.68. The judgment appealed from was for $7,102.88, being for the sum of $150.20 moré than the proof shows should have been allowed.

If the appellee shall within fifteen days remit from the judgment all of the said judgment in excess of the sum of $6,952.68, it will be affirmed for that sum, otherwise the judgment will be reversed and the cause remanded.

Affirmed if remittitur filed; otherwise reversed and remanded.


text:
    O. P. Stufflebeam and Phillip Cadle, Appellants, v. Charles A. Allen and W. B. Redden, Appellees.
    1. Arbitration and award, § 81*—when findings of trial court setting aside an award sustained by the evidence. On bill to set aside an award in an accounting between partners, findings of trial court as to the award being erroneous and as to the different amounts due the various partners, held sustained by the evidence.
    2. Arbitration and award, § 76

      —when whole award will not he set aside. On bill to set aside an award, it is not the duty of the court to set aside the whole award when any item in the award is a result of fraud, there being no allegations of fraud applicable to or affecting the whole award.
    3. Arbitration and award, § 74

      —sufficiency of decree setting aside an award in part. A decree setting aside an award in part, under a prayer for general relief should make all proper corrections of the award and should direct the enforcement of the award as amended by it, and provide for the payment of the various sums to whom they are due and make its decree final as to all matters involved.
    4. Arbitration and award, § 81

      —when allowance of salary to partner on bill to set aside award not error. On bill to set aside an award made in an accounting between partners, an allowance to a partner of a certain sum as salary during the partnership, held not error, there being no allegation in the bill as to fraud, irregularity or illegality on the question of the • salary item, and no error is assigned upon the record as to such item.
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in this court at the October term, 1912.
    Remanded with directions.
    Opinion filed October 16, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Acton & Acton, Thomas A. Graham and H. M. Steely, for appellants.
    Joseph B. Mann and Lawrerce T. Allen, for appellee Charles A. Allen.
    Augustus A. Partlow, for appellee W. B. Redden.

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

   Mr. Justice Creighton

delivered the opinion of the court.

This is an appeal from a decree entered in the Circuit Court of Vermilion county, and the facts leading up to the institution of the suit are substantially as follows:

In the year 1893, O. P. Stufflebeam, Phillip Cadle, Charles A. Allen, W. B. Bedden, with other parties, engag’ed as partners in operating a canning factory at Bossville, Illinois, and later they engaged in operating an electric light plant, the canning factory having been destroyed by fire, and this partnership continued to do business up until the year 1904, as such partners.

On the 22d day of September, 1907, Charles A. Allen filed a bill in the Circuit Court of Vermilion county for an accounting of the partnership business and for a dissolution of the partnership. Answers were filed' by all the defendants. The cause was continued from term to term until the January term, 1910, when the cause was referred to the master in chancery to take and report the proofs, together with findings. Pending the taking of the proofs before the master, the several parties to the suit entered into an agreement to arbitrate all'matters in dispute, claims or controversies whatsoever involved in the settlement of the said partnership, and selected three arbitrators and provided for administering the oath to the witnesses, hearing the evidence and for a full and final adjustment of the matter, and for a written finding and report to the court. Such evidence as the master had taken was submitted, and the evidence of the witnesses was heard by the arbitrators. Charles A. Allen testified, in his own behalf, to the effect that the firm was indebted to him for money furnished or advanced by him, and that he held at one time a note for the sum of $5,000 given by the firm, as evidence of the same, but that he had lost or mislaid the same, and he produced a receipt from the State treasurer, showing that he did have such a note and had deposited it with said treasurer as collateral security for a loan. Mr. Stufflebeam and Mr. Cadle each swore they had never signed any such note. The arbitrators allowed Mr. Allen, for principal and interest, the sum of $10,219.65.

After the award was made and filed by the arbitrators objections were made to the allowance of the above claim, and the bill in chancery here involved was filed by Mr. Stufflebeam and Mr. Cadle, praying for a decree to set aside the award and to enjoin the allowance of Mr. Allen’s claim based upon the said note with the interest aforesaid, and averring that the evidence given by Mr. Allen in support of the validity of the claim was false, and that the claim had been allowed by the arbitrators because of the fraud and perjury of Mr. Allen, and further averring they could furnish positive proof that the claim was not a just claim. The said partners were all parties and the defendants were served with summons, came into court and filed answers. The answer of Mr. Allen denied that his testimony before the arbitrators was false and his answer was otherwise formal. The answer of Mr. Eedden was a formal one. Eeplications were filed to the answers and the cause was, at the January term, 1912, referred to the master in chancery to take and report the evidence and his conclusions of law and fact.

At the August term, 1912, of the said court, the master made his report. Objections were filed by appellants to the findings of the master and were overruled, and the same were filed as exceptions to his report before the chancellor. The court sustained the exceptions so far as the findings related to the allowance of the said $5,000 note and interest, and all other exceptions were overruled.

The court found that the account of the partners, and the amounts advanced by each of them, to be as follows:

Charles A. Allen.................$15,809.63
W. B. Redden...................•. 24,151.18
O. P. Stufflebeam................ 16,985.11
Phillip Cadle..................... 17,533.46
Making a total of............$74,479.38

contributed by all four of the partners, of which each should have contributed an equal one-fourth part, or the sum of $18,619.84 each, and that on the basis of these amounts as contributed there was due to W. B. Redden from Phillip Cadle the sum of $1,086.38; that there was due from O. P. Stufflebeam to W. B. Redden the sum of $1,634.73, making a total due to W. B. Redden from Cadle and Stufflebeam the sum of $2,721.11; that there was due from Charles A. Allen to W. B. Redden the sum of $2,810.22; and it was ordered, adjudged and decreed that Charles A. Allen be enjoined from collecting or attempting to collect from Cadle and Stufflebeam the sum found due by the arbitrators; that W. B. Redden be enjoined from collecting from said Cadle, on account of said award, any more than the sum of $1,086.38; that said Redden be enjoined from collecting from said Stufflebeam, on account of said award, any more than the sum of $1,634.73; and that Charles A. Allen pay to the said W. B. Redden the sum of $2,810.22, and that the costs of the suit be taxed to said Charles A. Allen and that execution issue therefor.

Thereupon this appeal was perfected, thus bringing the record before us for review.

It is contended by appellants that it was the duty of the court when any item in the award was the result of fraud to set the whole award aside.

We cannot agree with this contention, as in this case there was no fraud charged except as to the allowance of the claim for the note and interest allowed to Mr. Allen, amounting to the sum of $10,219.65, and that item was eliminated by the court. Had the allegations of fraud applied to or affected the whole award and had the court found such to be true, then the rule would have been different.

It is further contended by appellant that the allowance to W. B. Redden of the sum of $3,900 as salary during the partnership was in violation of law. The fact that no allegation appears in the bill as to fraud, irregularity or illegality on the question of this salary item is sufficient to justify us in saying the court made no error in this regard. No error is assigned upon this record as to this item.

We think the evidence in this case fully sustains the findings of the trial court. We find, however, that while the trial court found that the award was erroneous and restrained Charles A. Allen from collecting the proceeds of the $5,000 note, and found that different sums were due the various partners than those contained in the award, the decree did not attempt to cancel the award or provide for the payment of the various sums found to be due to the parties to whom it was found owing.

The decree, under the prayer for general relief, should have made all of the proper corrections of the award,' and having jurisdiction of the subject-matter should have directed the enforcement of the award as amended by it, and provided for the payment of the various sums to whom they were due and made its decree final as to all matters involved.

The cause will be remanded to the trial court with directions to enter a decree in accordance herewith.

Remanded with directions.


text:
    Louis Oswald, Defendant in Error, v. Marcus D. Hexter, Plaintiff in Error.
    1. Mortgages, § 32

      —when evidence sufficient to show deed, was intended as a mortgage. On bill filed to have certain deeds and assignments, absolute in form, declared to be in the nature of a mortgage and for an accounting, findings of trial court that certain transfers were intended as security in the nature of a mortgage and that others were gifts in the nature of family settlements, held sustained by the evidence.
    2. Frauds, statute of, § 48

      —when parol agreement sufficient to show absolute deed a mortgage. To prove that an absolute deed is in the nature of a mortgage, a parol agreement is sufficient when it is established to the satisfaction of the court to take the case out of the statute of frauds.
    Error to the Circuit Court of Greene county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Frank A. Whitesides and Albert Salzenstein, for plaintiff in error.
    J. M. Riggs and Thomas Henshaw, for defendant in error.

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

   Mr. Justice Creighton

delivered the opinion of the court.

This was a bill in chancery filed in the Circuit Court of Green county by the defendant in error against Marcus D. Hexter, Lena Hexter, Herman Oswald and others. The bill alleges that the defendant in error was on November 28, 1904, indebted in the sum of $9,000; that he was the owner at the time of 40 acres of land, a residence, a business building in Whitehall, eight thirty-fifths interest in 56.40 acres and ten two-hundred tenths interest in 23.78 acres of land situated in St. Clair county, Illinois, and a real estate mortgage for $2,140, all of the value of $20,000 over and above any incumbrances; that Marcus D. Hexter and Herman Oswald and Lena Hexter were desirous of obtaining the title to the defendant in error’s property, thereby getting said property out of his name and control, and to convert the same to their use and benefit; that the defendant in error did not, at said time or for months thereafter, know of the design and purpose of the plaintiff in error to strip and deprive him of the fee title of his property; that while the defendant in error was worried and anxious as to the condition of his wife, who was sick with an incurable disease, the said Marcus D. Hexter, Lena Hexter and Herman Oswald falsely represented to him that his creditors were intending to bring suits against him, and that his property would be sacrificed and wasted by judgment, execution and sale; that Marcus D. Hexter, with the knowledge and approval of Lena Hexter and Herman Oswald, proposed to the defendant in error that he would pay the indebtedness of the defendant in error, if the defendant in error would secure him by assigning and conveying all of the said property to said Marcus Hexter, Lena Hexter and Herman Oswald, such deeds and assignments to stand as a mortgage to secure the said Hexter for the amount paid out by him on said indebtedness, and save the remainder of the property for the defendant in error; that after the debts had been paid the remainder of the property would be returned to the defendant in error; that in pursuance of the said agreement, and for the purpose aforesaid, he did assign and convey the said property to them; that after the conveyances and assignments aforesaid the said plaintiff in error received from the sale of the said property and collection of the said debts, the sum of $13,608, which said sum is largely in excess of the amount paid out under the agreement; that the representations made by the said Marcus D. Hexter, Lena Hexter and Herman Oswald to the defendant in error that his creditors were intending to bring suit were not true and were known by the plaintiff in error to be false when made, hut were used as a means to get the property of the defendant in error in their names, and that said plaintiff in error now claims that both the conveyances and the assignments were absolute and not in the nature of a mortgage, and refuse to account to the defendant in error for the proceeds of the sale of said property and the collection of said debts, and also refuse to reconvey the unsold real estate or re-: assign said property to the defendant in error.

The bill prayed for an accounting and a return of the unsold property. A joint answer was filed by said Marcus D. Hexter, Lena Hexter and Herman Oswald, and admits that the defendant in error was indebted in the sum of $9,000; that he owned the property described in the bill, but deny that they made any false representations to the defendant in error to induce him to convey the property to them, but aver that the residence in Whitehall was deeded to Lena Hexter as a gift, and that the business property in said city was deeded to Herman Oswald as a gift, both of said gifts being in the nature of a family séttlement; that the remainder of the property was deeded and assigned to Marcus D. Hexter and Herman Oswald in consideration that they would pay certain debts of the defendant in error, and that the deeds were not understood to be mortgages, but were absolute conveyances, without any agreement or understanding that any part was to be returned.

Upon a hearing the court found that on the 28th day of November, 1904, Marcus D. Hexter assumed and agreed to pay the indebtedness of the defendant in error, and that in order to secure the said Hexter in paying said debts the defendant in error and his wife conveyed to Marcus D. Hexter and Herman Oswald the forty acres of land in Greene county, subject, however, to a joint and several life estate in the grantors; that said deed, though absolute in form, was in the nature of a mortgage to secure said Hexter for such sums of money as he should pay in the discharge of the debts of the defendant in error; that at the same time the defendant in error assigned and transferred his interest in certain real estate in St. Clair county to Marcus D. Hexter and Herman Oswald, and that said assignment and transfer was in the nature of a mortgage, to further secure the said Hexter for the discharge of the indebtedness of defendant in error. The court further found that the deeds of conveyance made by the defendant in error to the business property at Whitehall to Herman Oswald, and the residence property to Lena Hexter, were gifts in the nature of a family settlement, both of said conveyances, however, being subject to a life estate reserved to the grantors, but the court further held that the defendant in error’s life estate in the property conveyed to Lena Hexter was not involved in this cause, and the bill was dismissed as to Lena Hexter without prejudice.

The decree further found that Marcus D. Hexter and Herman Oswald should be required to account to the defendant in error for all moneys received by them, or either of them, arising from the sale of the lots or lands in St. Clair county, and also for all moneys received by them, or either of them, on the mortgage for $2,140, executed by Peter Kinser; that they be required to render an accounting showing what moneys they, or either of them, paid out on the indebtedness of the defendant in error, to whom paid, when paid and all sums paid out by them for taxes or insurance on the said mortgaged property; that Lena Hexter is a daughter and Herman Oswald a son of the defendant in error; that on account of the family relationship the defendant in error placed trust and confidence in said Marcus D. Hexter and Herman Oswald, and conveyed the Greene county land and assigned and transferred his interest in the St. Clair county property and in the Kinser mortgage to them, and that said conveyances and assignments were made to secure the said Hexter as aforesaid, and are in the nature of mortgages; that the defendant in error should be allowed to redeem the forty acres of land in Greene county and the unsold equities in the St. Clair county real estate, upon the payment to Hexter and Oswald of whatever sum shall be found, upon an accounting, to be due to them; it was further decreed that upon an accounting said Marcus D. Hexter and Herman Oswald shall be charged with all moneys received by them, or either of them, from the proceeds of all of said property and for the amount received from the Kinser note and mortgage.

From this decree this writ of error was sued out, and all of the findings of the decree are questioned by the respective parties assigning upon the record, errors and cross-errors.

The principal issue presented for determination in this case is one of fact, i. e., whether the transfers of the property mentioned in the defendant in error’s bill were intended to convey to the grantees therein the absolute title to the property.

We think the evidence is abundant to show that the agreement entered into by these parties was not intended to convey the property absolutely, but was to indemnify said Hexter against loss in the payment of certain debts of the defendant in error, as to all of the property, except the business and residence property in Whitehall, conveyed to Herman Oswald and Lena Hexter, respectively.

While there is a conflict in the testimony, and many circumstances tending to show that as to these two pieces of property they were also intended to be security for the payment of the debts of the defendant in error, yet, we are not able to say that the allegations of the bill of the defendant in error have been supported by a preponderance of the evidence upon this question. The chancellor saw the witnesses and heard their evidence and was in a superior position to judge of the worth and credibility of their various statements. The chancellor found these two pieces of property were conveyed to the two children of the defendant in error and were in the nature of a family settlement and to equalize these two children with another child to whom gifts had before then been made. We are inclined to the opinion that this finding was supported by the evidence.

The conveyances of the other property, being in the nature of a mortgage, could not pass absolute title to the plaintiffs in error, although, in form deeds, they were in fact intended to be mortgages.

Section 12 of chapter 95, R. S. (J. & A. ¶ 7587) provides: “Every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage.”

“ ‘If confidence is reposed, it must be faithfully acted upon and preserved from any intermixture of imposition. If influence is acquired, it must be kept free from the taint of selfish interest and cunning and overreaching bargains.’ (1 Story’s Eq. Jur. sec. 308.) Where a person is entrusted as a confidential agent with a conduct of business where he professes not to act for himself, but for others who have placed their confidence in him, he is disabled in equity, even though he may be a volunteer, from dealing in the matter of his agency on his own account. ‘The agency being established, he will be compelled to transfer the benefit of his contract, although he may swear he purchased on his own account. ’ (Dennis v. McCagg, 32 Ill. 429.) The rule applies not only to persons standing in a direct fiduciary relation towards others, but also to those who occupy any position out of which a similar duty ought, in equity and good morals, to arise.” Conant v. Riseborough, 139 Ill. 383.

It is contended by the plaintiff in error that the mere refusal of a trustee to execute an express trust does not constitute such fraud as takes the case out of the statutes of frauds.

A parol agreement is sufficient, in this character of case, when established to the satisfaction of the court, to take the case out of the effect of the statute of frauds. Reigard v. McNeil, 38 Ill. 401.

A careful review of all of the evidence preserved in this record leads us to believe that the decree of the Circuit Court should be sustained. It is sound in principle and seems to be an equitable adjustment of the rights of the parties.

The decree is, therefore, affirmed.

Affirmed.


text:
    Mary E. Lee, Administratrix, Defendant in Error, v. Toledo, St. Louis and Western Railroad Company, Plaintiff in Error.
    1. Death, § 48

      —admissibility of evidence. In an action by widow to recover for the death of her husband, permitting plaintiff to prove that she had no means of support other than that furnished by her deceased husband, held error. The limit of inquiry along this line is as to the earning capacity of the deceased and his contribution to the support of his family.
    2. Death, § 73

      —when instruction not based on evidence erroneous. In an action against a railroad company to recover damages for the death of a fireman, an instruction permitting recovery for negligence of the engineer held improper where there was no proof upon which to base the conclusion that engineer acted improperly in the operation of the engine or that his conduct in anyway contributed to the death of plaintiff's intestate.
    3. Death, § 73

      —when instruction ashing jury to consider all the evidence improper. In an action for death, an instruction given for plaintiff held objectionable in asking the jury to consider, in determining as to the measure of damages, all the evidence, there being improper evidence admitted on the part of the plaintiff.
    4. Death, § 73

      —when requested instruction improperly refused. In an action against a railroad company for death of a fireman occasioned by derailment, a requested instruction for defendant that, “If, from the evidence in this case, you are unable to say, under your oaths as jurors, what caused the derailment of the engine, then the court instructs you to find the defendant not guilty,” held improperly refused.
    5. Death, § 73

      —when refusal of requested instruction is error. In an action for death, refusal of a requested instruction on question of proof of the cause of the injury and defendant’s negligence, held error.
    6. Trial, § 233

      —when error to permit jury to take pleadings to the jury room. In an action for death, held error to permit certain counts of the declaration to he taken hy the jury to the jury room without some explanation or instruction where there is no proof to support the theory of such counts. As a general rule, where any of the pleadings are permitted to go to the jury the whole of the pleadings should go.
    Error to the Circuit Court of Coles county; the Hon. William B. Soholeield, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    A. J. Fryer and C. E. Pope, for plaintiff in error; Charles A. Schmettau, of counsel.
    S. S. Anderson and H. A. Neal, for defendant in error.

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

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

   Mr. Justice Creighton

delivered the opinion of the court.

This is a writ of error sued out by the plaintiff in error to bring into review a judgment entered in the Circuit Court of Coles county, in the sum of seven thousand five hundred dollars in favor of the defendant in error and against the plaintiff in error, in a suit wherein the defendant in error brought the action to recover for the death of her husband, and which suit was prosecuted under the Employer’s Liability Act of the United States.

The declaration contains four counts. The first count alleges, in substance, that Eobert E. Lee, plaintiff’s intestate, was the husband of the defendant in error; that he was employed as a fireman on the engine pulling a train belonging to the plaintiff in error working on a division of the road which extends from Charleston, Illinois, to Frankfort, Indiana; that while he was so employed it became the duty of the plaintiff in error to provide him with a reasonably safe place in which to work; that the plaintiff in error neglected its duty in this respect and failed to furnish the deceased a., safe place in which to work, but furnished to the deceased an unsafe track upon which the train was run and upon which he was working, to wit, a track with insufficient rails, decayed cross-ties, the nails being insecurely spiked, by reason of which the track spread and the engine of the plaintiff in error, upon which the deceased was working, turned over and fell upon the deceased and killed him; that the deceased was a married man, having a wife and two children, and was earning one hundred dollars per month at the time of his death.

The second count was practically the same as the first, except that it averred that the engine used in propelling the train upon which deceased was working was of the weight of fifty tons, and that said engine by reason of its great weight, when attached to a light train, was wholly unfit for such service and endangered the life of the deceased; that the deceased had taken the examination and was admitted to the roll of eligible engineers and, when so employed, to a salary of one hundred and fifty dollars per month.

The third count charges that it was the duty of the plaintiff in error to furnish a safe place for defendant in error’s intestate to work and a safe engine upon which to work, but that the plaintiff in error utterly failed so to do; that the plaintiff in error furnished a defective engine upon which the deceased was required to ride and work as such fireman; “that the springs supporting the boiler and frame of said engine were broken and the springs over the front driving wheels were rendered ineffective and useless by having placed beside them, upon the driving box of said engine, beside said front driving wheels, beneath the frame of said engine, solid blocks of iron, to-wit: of the thickness of three and one-half inches, removing the weight of the wheels off the pony trucks, and causing them to leave the rails of the said railroad upon which said engine the plaintiff’s intestate was required to ride as such fireman, in the transaction of the business of the defendant in the carrying of passengers between the State of Illinois and Indiana; that by reason of such defective engine, broken springs, etc., the engine was thrown from the track and overturned, and the plaintiff’s intestate, by reason of the overturning of the said engine, was scalded and burned, thereby causing his death.” •

The fourth count, in addition: to the allegations mentioned in the first count as to the defective track, ties, rails, etc., averred that the plaintiff in error had in its employ and service at the time of the injury one C. S. Bennett, who, as such servant of the plaintiff in error, by the direction of the plaintiff in error, alone had charge of the said engine as locomotive engineer; that it was then and there the duty of the said Bennett, so in charge and having sole management of said engine and sole control of the speed of the said engine, to operate the said engine at a reasonable rate of speed, yet said Bennett carelessly and negligently ran said engine on the said track at a dangerous and reckless rate of speed at, to wit, fifty miles per hour, and caused the said engine to leave the said track, overturn and crush, scald and cause the death of the defendant in error’s intestate.

Each count pleads the Federal Employer’s Liability Act.

To the declaration a plea of the general issue was filed.

Upon the trial of the cause numerous objections were offered on behalf of the plaintiff in error to the evidence introduced by the defendant in error, but we do not deem it proper to discuss the weight of the evidence in the cause, for the reason the judgment must be reversed upon other grounds.

It is urged by the plaintiff in error that upon the trial of the cause the defendant in error was permitted to prove that she had no means of support other than that furnished by her said deceased husband. The objection to this evidence should have been sustained. The limit of inquiry along this line is as to the earning capacity of the deceased and his contributions to the support of his family.

In no instance can the inquiry lead to the financial ability of the widow or next of kin. This doctrine was announced in Chicago & N. W. R. Co. v. Morando, 93 Ill. 302, in the following language: “It is error to admit proof that the plaintiff and her children had no other means of support save that arising from his daily earnings. ’ ’

In the case of Brennen v. Chicago & Carterville Coal Co., 241 Ill. 610, the same rule is announced, as follows: “While it is erroneous to admit evidence of the resources of the widow or next of kin or their financial condition, it is not error to allow questions concerning the earnings of the deceased and whether the wife and children were supported by him.” See also Jones & Adams Co. v. George, 227 Ill. 64 and Illinois Cent. R. Co. v. Atwell, 198 Ill. 200.

Objection is urged by plaintiff in error to the action of the court in permitting the declaration to be taken by the jury to the jury room and withholding from the jury the pleas of the plaintiff in error.

As a general rule, where any of the pleadings are permitted to go to the jury, the whole of the pleadings should go. In this particular case it was error to permit the third and fourth counts of the declaration to go to the jury without some explanation or instruction, for the reason there is no proof to support the theory of such third count and the portion of the fourth count which alleged the accident occurred because of the high rate of speed and reckless operation of the engine.

Objection is made to the third instruction given on behalf of the defendant in error, and it is as follows:

“You are instructed that if you believe from the evidence that Robert E. Lee, plaintiff’s intestate, was an employe of the defendant and that the defendant was a common carrier by railroad engaged in commerce between the State of Illinois and the State of Indiana, and that while in the employ of the defendant, said Robert E. Lee was injured, scalded and burned by reason of the engine of the defendant getting off the track and overturning, as in plaintiff’s declaration alleged, and that from such injuries said Robert E. Lee died, as alleged in plaintiff’s declaration, and that such injuries were caused in whole or in part from the negligence of O. S. Bennett, an engineer in the employ of the defendant, or by reason of the defect in the track or roadbed of the defendant due to the negligence of the defendant, as alleged in the declaration or any count thereof, then you should find" the defendant guilty and assess the plaintiff’s damages at such sum as you believe from the evidence she is entitled to, not exceeding the amount claimed in the declaration. ’ ’

This instruction is subject to the objection that there is no proof in the record upon which to base a conclusion that the engineer, Bennett, acted improperly in the operation of the engine, or that his conduct was in any manner improper or contributed to the injury to defendant in error’s intestate.

The form of instruction six, given at the request of the defendant in error, is, to say the least, questionable; and instruction number seven, also given at the request of the defendant in error, is subject to objection because reference is made, and the jury are asked to consider, in determining as to the measure of damages, all of the evidence which, of course, included the improper evidence admitted on the part of the defendant in error.

Other instructions are subject to the same objections, and to others which we do not deem it necessary to particularly name and point out.

Instruction number eleven, asked by the plaintiff in error, and by the court refused, is as follows:

“If, from the evidence in this case, you are unable to say, under your oaths as jurors, what caused the derailment of the engine, then the court instructs you to find the defendant not guilty.”

This instruction states a correct principle of law and should have been given.

Objection is made by the plaintiff in error as to the action of the court in refusing to give instruction fifteen asked in its behalf, which is as follows:

“The Court instructs the jury that under the law it is not enough for a plaintiff, in order to recover damages, to merely prove that an injury or death resulted from defects or insufficiency in defendant’s cars, engines, appliances, machinery, roadbed, works, boats, wharves, or other equipment; but before a recovery can be legally had under the law applicable in this case, it must appear from a preponderance of the evidence that the defect or insufficiency in the cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment was due to the negligence of the officers, agents or employes of the defendant, and if you believe from the evidence in this case that the engine, appliances, machinery, track, roadbed or other equipment of the defendant was not due to any negligence on the part of the defendant’s officers, agents or employes, then the court instructs you that the defendant in this case would not be liable under the first, second or third count of the declaration. ’ ’

We are inclined to the opinion instruction fifteen should have been given, and that it was error to have refused it.

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

Reversed and remanded.


text:
    The People of the State of Illinois ex rel., A. C. Moffett et al., Appellees, v. William R. Turnbull, Mayor, et al., Appellants.
    1. Municipal corporations, § 1173—when duty of city council to pass appropriation and tax levy ordinance to maintain free library. Under section 1 of Act of 1872, J. & A. If 7074, authorizing cities, incorporated towns and townships to establish and maintain free public libraries and reading rooms, where a city council passes an ordinance providing for the establishment and maintenance of such a library and by resolution accepts a donation for the erection thereof, held that the council by adopting such ordinance and resolution elected to come under the provisions of the statute and could not, on its own motion, refuse to pass appropriation and tax levy ordinances to maintain the library.
    2. Mandamus, § 148—when petition to compel city officials to pass appropriation ordinance and malee levy for city library sufficient. Petition filed by members of a city library board for the issuance of a writ of mandamus to compel the mayor and city council to pass an appropriation ordinance, and to levy, in the tax levy ordinance, the sum of one and two-tenths mills on the dollar of the taxable property of the city, held to state facts showing a clear right to demand the issuance of the writ.
    3. Statutes, § 225—word “may” construed. The word “may” in a statute will be construed to mean “shall” whenever the rights of the public or of third persons depend upon the exercise of the power or the performance of a duty to which it refers, and such is its meaning in all cases where the public rights or interests are concerned. The term “public” does not necessarily mean all the inhabitants of a State, but may properly be applied either to the inhabitants of a State, a county or a community.
    4. Statutes, § 225—when word “may” means “shall.” The word “may” in section 1 of the Act of 1872, J & A. ¶ 7074, wherein it says “The city council * * * shall have power to establish and maintain a public library * * * and may levy a tax, etc.,” held to mean “shall.”
    Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.

      C. F. Wemple and Bellatti, Barnes & Bellatti, for appellants.
    Robert Tilton and Kirby, Wilson & Baldwin, for appellees.

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

   Mr. Justice Creighton

delivered the opinion of the court.

This was a petition filed by the members of the Library Board of the city of Waverly asking for the issuance of a writ of mandamus against the mayor and city council of said city, to compel them to pass an ordinance appropriating a sum of money for the purpose of maintaining a free public library and also, to compel them to levy, in the tax levy ordinance, the sum of one and two-tenths mills on the dollar of the taxable property of said city, for said library, for the fiscal year beginning the third Tuesday of April, 1912.

A demurrer was filed to the petition, and upon the overruling of said demurrer the appellants elected to abide by same. Thereupon the court entered judgment directing the writ to issue, commanding the said mayor and city council to pass the. ordinance appropriating a sum of money for said free library, and to levy, in the annual tax levy ordinance, the said sum for the main- • tenance of the said library.

This is an appeal perfected by a portion of the defendants below, bringing the proceedings before us for review.

The question presented for our consideration upon this record is, whether or not the petition herein filed contains allegations sufficient to authorize the issuance of the peremptory writ of mandamus.

The allegations of the petition, in substance, are: that on the 9th day of May, 1911, the city council of the city of Waverly passed an ordinance providing that a free public library should be established under the provisions of an act of the General Assembly, entitled, “An Act to authorize cities, incorporated towns and townships to establish and maintain frée public liliraries and reading rooms,” approved and in force March 7, 1872, as amended hy Acts approved June 17, 1889, May 25, 1889 and June 14,1909 (J. & A. ¶ 7079), and such ordinance provided: “a library shall be established and maintained by taxation to be appropriated and levied, in the sum of one and two-tenths mills on the dollar on all the taxable property in the city in accordance with the provisions of the said act, for the free use of the inhabitants of the City of Waverly, the said library to be under the supervision and management of a board of directors to be appointed according to the provisions of the statute,” etc.; that after the passage of the said ordinance, the mayor of the city appointed said board of directors, consisting of nine persons, and said appointees were duly confirmed by the city council, and that the said board of directors adopted rules governing their own actions and the management of said library; that on the 23d day of February, 1912, the said city council adopted a resolution accepting a donation from Andrew Carnegie in the sum of $4,500 for the erection of a free public library building, “on condition that said city shall pledge itself, by resolution of the council, to support a free public library, at a cost of not less than $450 a year and to provide a suitable site for said building,” and providing, after resolving to furnish said site, “that an annual levy shall hereafter be made upon the taxable property of said city, sufficient in amount to comply with above requirements,” that the said Andrew Carnegie deposited said sum of $4,500 in a certain trust company to pay for the erection of said building; that a site was conveyed to said library board, for the building; that a contract was entered into by the library board for the erection of the building on the said site, which said contract is now in force and effect, and the contractor has purchased materials and is proceeding with the erection and construction of the said building, which will be completed and ready for occupancy on or about September 1, 1912; that on the 6th day of June, 1911, the said city council passed an ordinance appropriating money for the purposes of said library, and on the 6th day of September, 1911, the annual levy ordinance was passed, in which said ordinance there was levied the sum of $450 for the library fund; that on the 7th day of May, 1912, the city council of said city passed an ordinance, by a vote of four to two, repealing the ordinance of May 9, 1911, establishing such library, which said ordinance was not approved or signed by the mayor, but was published on May 31, 1912; that in passing the appropriation ordinance for the year 1912, the said city council omitted to make any appropriation of any sum for maintaining the library; that the resolution of February 23,1912, above set forth, is still in full force and effect and that said library board has not been dissolved by any legal steps or proceedings; that said city council has refused to make the appropriation for the purpose of maintaining the library, and has declared its purpose of not making such appropriation and has also declared it will not levy the said sum of $450 in the tax levy ordinance for the present fiscal year; that unless said appropriation is made no tax can be legally levied in the annual tax levy ordinance for the purpose of maintaining said library; that in view of their appointment under the ordinance of May 9, 1911, the library board procured, by public subscriptions, the sum of about $1,200, to procure the lot upon which to erect the library building and to care for a few minor expenses; that the lot has been purchased and the library building is in course of construction and about $1,000 worth of material is now on the grounds. The prayer of the petition is that the individual officers of the city be compelled, by writ of mandamus, to pass an ordinance appropriating a sum of money for the purposes of the library, to publish said ordinance, and to thereafter levy, in the annual tax levy ordinance, said sum of money for the purpose of maintaining said free public library, for the fiscal year beginning the third Tuesday of April, 1912, etc.

Attached to the petition and made parts thereof are the various ordinances, resolution and contract for the building of the library building.

The statute which the city council referred to in the ordinance of May 9,1911, in section 1 thereof (J. & A. ¶ 7079), provides: “The city council * * * shall have power to establish and maintain a public library and reading room for the use and benefit of the inhabitants of such city, and may levy a tax of not exceeding one and two-tenths mills on the dollar annually on all the taxable property in the city. ’ ’

Under the view we take of this case, the city council, when the question arose before them, had authority to provide by resolution or ordinance that they would or would not provide for the establishment and maintenance of a free public library and reading room. When the said council adopted the ordinance of May 9, 1911, they, by such adoption, declared they would establish and maintain a free public library.

In our view the latter part of the above quoted section providing “and may levy a tax,” etc., is to be construed to mean that if the city council elects to provide for the establishment and maintenance of a free library, then they “shall levy” a tax. The word “may” as used in the section is a grant of power to do so, if the first clause of the section is accepted by the city council. They may or may not determine to establish and maintain a free public library, but if they elect to adopt an ordinance providing that they will establish and maintain a free public library, then the power is granted to them to extend a tax for that purpose, and shall be exercised by them.

The word “may” in a statute will be construed to mean “shall,” whenever the rights of the public or of third persons depend upon the exercise of the power or the performance of a duty to which it refers, and such is its meaning in all cases where the public rights or interests are concerned. Brokaw v. Commissioners of Highways, 130 Ill. 490. Also see Binder v. Langhorst, 234 Ill. 587.

The term “public” does not necessarily mean all of the inhabitants of a State, but may properly be applied either to the inhabitants of a State, a county or a community. Byrne v. Chicago General Ry. Co. 169 Ill. 75, at page 84.

In the action to be taken by the city council in this cause, the rights of all of the inhabitants (the public) of that community were involved.

By the adoption of the ordinance of May 9, 1911, the city council had elected to establish and maintain a free public library. By the resolution of February 23, 1912, it had accepted the gift of $4,500 for the erection of the library building from the donor. By the various acts of the council the inhabitants of the city had been induced to subscribe the sum of $1,200, in order to secure a site for the building and had met, by way of taxation, the levy made by the council for the maintenance of the library for the year 1911. The library was to be for the free use of the inhabitants (the public) of the city.

In our view, by the adoption of the ordinance of May 9, 1911, and the resolution of February 23, 1912, the city council had elected to come under the provisions of the statute relating to libraries, and to permit them to refuse of their own motion, to maintain by appropriation and tax levy ordinances the library which they had agreed to maintain, would be to allow the city council to abuse the power vested in them.

As was held by our Supreme Court in Young v. Carey, 184 Ill. 613: The duty of the board is clearly implied. This is within that class of cases in which courts may control discretionary powers to sustain a right or prevent an injury.

We think the petition in the case at bar sets up a state of facts showing a clear right to~ demand the issuance of the writ of mandamus; and the judgment appealed from is hereby affirmed.

Affirmed.


text:
    Lizzie Rostetter, Appellee, v. American Insurance Company, Appellant.
    1. Insurance, § 120

      —when policy construed in favor of insured. Where clauses in an insurance policy are susceptible of two constructions, in conflict, the one most favorable to the insured will he adopted by the courts.
    2. Insurance. § 219

      —when provision in policy against foreclosure proceedings withbut consent of insurer inoperative. A provision in a policy of fire insurance that the policy shall be null and void if foreclosure proceedings are commenced without the consent of the insurance company, held, to be inoperative as between insurer and the mortgagee where a mortgage clause is attached to the policy making the loss payable to the mortgagee, the mortgage containing a clause giving mortgagee' the right to foreclose in case of default in the payment of interest, which the insurer must have known when attaching the mortgage clause to the policy, and to require mortgagee to obtain the consent of the insurer would in effect destroy the purpose of the mortgage clause.
    3. Insurance, § 456

      —denial of liability as loaiving proof of loss. Insurance company refusing to pay a loss on the ground of its nonliability in any event cannot insist, in defense of an action for the insurance, that the preliminary proof of loss was not made or was insufficient.
    4. Insurance, § 674

      —propositions of law. Propositions of law concerning the effect of a mortgage clause attached to a fire insurance policy containing a clause against foreclosure proceedings with the consent of the insurer, and as to what constitutes a «waiver of preliminary proof of loss, held to be properly held as law by the trial court.
    Appeal from the Circuit Court of McLean county; the Hon. Colortin D. Myers, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Rehearing denied November 12, 1913.
    Livingston & Bach, for appellant.
    S. P. Robinson, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit commenced in the Circuit Court of McLean county by the appellee to recover upon a fire insurance policy issued January 9, 1911, by the appellant to George H. Jones, insuring his one story frame building against loss by fire, etc., with the following clause attached thereto: “Loss, if any, on building insured under this policy, is hereby made payable to Lizzie Bostetter, mortgagee, as her interest may appear at the time of the loss, subject, however, to all the conditions and stipulations of this policy No. 09791, of the” appellant Company, and is dated January 17, 1911.

The policy also contained, among others, a provision as follows: “ or, if foreclosure proceedings be commenced without the consent of this company endorsed hereon, then in each and every one of the above cases, this policy shall be null and void.”

Still another provision of the policy provided that “no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy.”

On January 17, 1911, the said George H. Jones was indebted to the appellee in the sum of four hundred dollars and gave a promissory note therefor and a mortgage upon the premises covered by the insurance policy, to secure the same, and the said mortgage contained a clause which provided: “if default be made in the payment of the interest when due, the whole debt may be declared due and foreclosure proceedings instituted. ’ ’

Mr. Jones failed to pay the first instalment of interest, and a foreclosure proceeding was instituted and a decree taken upon the same and the said premises advertised for sale by the master in chancery for the 8th day of July, 1911. Two days before the time so advertised for sale of the premises the building was entirely destroyed by fire, the loss being total. On the next morning after the fire a Mr. Falkingham, agent of the appellant, learned of the fire and went to the home of Mr. Jones and told him he would report the loss to the Company. About one week after the fire a Mr. Hubbel, an agent and adjuster for appellant, appeared at Towanda, the home of Mr. Jones, and sent for him to come to the hotel. After considerable talk about the fire and loss, Mr. Jones asked the adjuster if he was going to adjust and pay his loss and Mr. Hubbel replied that he was not, and after some further conversation the adjuster departed. Upon the witness stand Mr. Hubbel explained that the reason for not adjusting the loss was the foreclosure proceeding, which he believed, under the clause above quoted, relieved the Company from liability.

Appellee afterwards, and before the beginning of the suit herein, notified appellant on two different occasions of her rights in the matter, and demanded payment. Appellant declined to pay.

This suit was begun in the Circuit Court of McLean county, and the declaration contained two counts, being in the usual form in such proceedings, and avers a total loss and the granting of the mortgage clause in her favor, etc. A plea of the general issue was filed by appellant and a stipulation was entered into by the respective parties provided that all proper defenses might be made under said plea, to the same extent as if special pleas had been filed. The jury was waived and the cause submitted to the court, and a judgment was entered in favor of appellee in the sum of five hundred and thirty-two dollars and costs of suit. This appeal was prayed and perfected, bringing the record to this court for review.

W. A. Freese, an insurance agent of appellant, knew of the default in the payment of the interest and that foreclosure proceedings had been commenced. During that period he had the policy in his possession and knew it contained a mortgage clause in favor of appellee, but he failed to communicate such facts to the home office of appellant.

No written proof of loss was filed with appellant by anyone.

The application for the insurance, which was signed by Mr. Jones, provided for the insertion of a mortgage clause when the policy issued.

The following propositions of law were submitted on behalf of appellee and held to be the law applicable to this cause:

1. The court holds that the foreclosure of the mortgage upon the premises covered by the insurance policy sued upon in this case did not invalidate said policy.
2. The court holds that the defendant, by adding the mortgage clause to the policy of insurance, rendered the condition in the policy, against foreclosure of mortgages, inoperative.
3. The court holds that as between the mortgagee and the defendant the condition of the policy of insurance, providing that the policy should be void, in the event suit was commenced to foreclose a mortg'ag’e, was inoperative, and the suit by the plaintiff to foreclose a mortgage, on the premises covered by the insurance policy did not render the policy void.
4. The court holds that the right of the plaintiff to foreclose her mortgage was incident to her security given by the defendant, by adding the mortgage clause to the policy, and the policy was not affected by the plaintiff’s suit to foreclose her mortgage.
5. The court holds that the defendant Company, by its agent, Falkingham, waived the condition of the policy requiring sworn proof of loss.
6. The court holds that the defendant Company, by -its adjuster, Hubbel, waived the condition in the policy requiring sworn proof of loss.
7. The court holds that the sworn proof of loss required by the policy was waived by the agent, Falkingham, telling Jones he would report the loss to the Company and attend to that matter for him.
8. The court holds, that the plaintiff is entitled to recover the face of the policy, with interest at five per cent, per annum, from the commencement of suit.

There is no material controversy in this case as to the facts. The chief objection relied upon-by appellant, as ground for the reversal of the judgment, is that the court held the above propositions to be the law applicable to the cause.

"When an insurance company refuses to pay a loss on the ground of its nonliability in any event, it cannot insist, in defense of an action, that the preliminary proof was not made or was insufficient. Williamsburg City Fire Ins. Co. v. Gary, 83 Ill. 453; Grange Mill Co. v. Western Assur. Co., 118 Ill. 396; Continental Ins. Co. v. Ruckman, 127 Ill. 364.

In the case at bar, within a week after the loss, the adjuster who came on that occasion with instructions from the Company to investigate the loss was informed of the loss and of the foreclosure proceedings. He at once determined that the Company was not liable and announced to Mr. Jones that the Company would not pay, and the appellant has maintained and does now maintain that it is not liable on account of the commencement of the foreclosure proceeding. We must, therefore, conclude that the question of the proof of loss did not in any manner control the appellant’s action in refusing to pay. When an insurance company denies liability it is estopped from making any formal objection to the proof of loss.

The question of the effect of the foreclosure proceedings as raised by the propositions of law held by the court, set out in the first, second, third and fourth propositions, is vital to the decision of this case.

The rule, as announced in the case of Lancashire Ins. Co. v. Boardman, 58 Kan. 339, is: “These provisions appear in an entirely different light when construing the policy with the mortgage clause attached, in an action brought by the mortgagee. The commencement by the mortgagee of proceedings to foreclose a mortgage is not prohibited by the express terms of the mortgage clause, nor by any fair implication contained therein. If prohibited at all, it must be by reason of the provisions of the policy quoted. Construing both the original policy and the mortgage clause together, in the light of the plain purpose to insure the interest of the mortgagee, the commencement of foreclosure proceedings cannot be held in violation of any stipulation forbidding the mortgagee.”

The appellant must have known, when attaching the mortgage clause to the policy in question, that it might become necessary for the mortgagee, in order to protect her interests under the mortgage, to commence forclosure proceedings. German Ins. Co. of Freeport v. Churchill, 26 Ill. App. 206.

In Getman v. Guardicm Fire Ins. Co., 46 Ill. App. 489, the following language is used: “The contract created by the policy and the added clause, was one between the insurer, the insured and the beneficiary. Their relations to each other were within the contemplation of each contracting party, and neither one should be permitted to avoid a duty imposed by the contract because of the interposition of a legal result which, from the nature of the objects to be secured by the contract, must have been within the knowledge of all as one likely to follow.”

Where clauses in an insurance policy are susceptible of two constructions, on conflict, the one most favorable to the insured will be adopted by the courts. In this case there is a conflict between the rights of appellee and appellant as to whether or not appellant’s consent must be had before appellee could legally proceed to foreclose her mortgage lien. The object and purpose of appellee in obtaining the mortgage clause to be inserted in the policy in question was to add additional security to the note and mortgage mentioned, and that fact was well understood by appellant at the time the clause was inserted. It must .have been equally well understood by appellant that there might be a default in the payment of the mortgage and that a foreclosure proceeding would necessarily follow. To say that appellant’s consent was necessary before a foreclosure proceeding could be instituted is in effect to destroy the very object and purpose of the insertion of the mortgage clause.

Applying the rule as hereinabove announced, we cannot agree with the contention of appellant that the propositions of law as held by the court, which we think control this case, were erroneously held.

Therefore, the judgment is affirmed.

Affirmed.


text:
    Servian J. Kauffman, Appellee, v. David G. Sanner, Appellant.
    (Not to be reported in full.)
    Appeal from the County Court of Shelby county; the Hon. J. K. P. Grider, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Servian J. Kauffman against David G. Sanner to recover a balance claimed to be due to plaintiff on a contract for tiling land of defendant. From a judgment in favor of plaintiff for $117.92, defendant appeals.
    Steidley & Crockett, for appellant.
    Marion Watson, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 401 —when judgment for plaintiff will he sustained on appeal. In an action to recover a balance claimed to be due on a tiling contract, a verdict in favor of plaintiff held sustained by the evidence and errors in instructions held not prejudicial error.

2. Appeal and error, § 1420 —when irregularity during trial not cause for reversal. Courts will not reverse a cause merely because of some irregularity during the trial, if from all the facts and circumstances in the record it appears that equal and exact justice has been done.

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


text:
    Alva J. Hendricks, Appellee, v. William F. Roley, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Rehearing denied and modified opinion refiled November 6, 1913.
    Statement of the Case.
    Action by Alva J. Hendricks against William F. Roley to recover $500 designated as liquidated damages due, and the value of certain personal property turned over to defendant under a written contract between plaintiff and defendant for the exchange of real and personal property. From a judgment in favor of plaintiff for $940, defendant appeals.
    U. G. Ward and William H. Craig, for appellant.
    Richardson & Whitaker, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.

Abstract of the Decision.

1. Exchange of property, § 1 —when party receiving part of property not entitled to its retention for failure of other party to comply with contract. Where a party to a contract for the exchange of real estate and personal property receives from the other party personal property as part payment of the purchase price, he cannot retain the same for failure of such other party to further comply with the contract, where he himself fails to comply with the terms of the contract in furnishing sufficient abstracts of title, in failing to make and deliver a sufficient deed and in being unable to deliver immediate possession.

2. Exchange of property, § 1 —when party in default under contract to give immediate possession. Where a party in a contract for the exchange of lands reserves all growing crops and agrees to give immediate possession, he fails to comply with his contract to give immediate possession where his tenant is in possession under an unexpired lease. In such case the provision reserving the growing crops does not annul the other provision for immediate possession.

3. Exchange of property, § 1 —when party to contract not in default for failure to give possession. Under a contract for the exchange of land and personal property, one party cannot claim that the other failed to give him possession of the land where the evidence shows that personal property had been delivered to him as part of the purchase price and the other party had asked leave to permit his stock to remain in the pasture.

4. Exchange of property, § 1 —when agreement is to convey subject to incumbrance. Where a party to a contract for the exchange of lands agrees to convey his “land incumbered to the extent of $8,000, plus interest from Jan. 10, 1910, on the $8,000,” the agreement when construed in connection with the evidence, held to mean that the conveyance was to be subject to the incumbrance.

5. Trover and conversion, § 45 —when verdict not excessive. In an action to recover liquidated damages and the value of personal property delivered to defendant as part of purchase price, held, that defendant was liable for the value of the property retained and converted to his use, and a verdict in favor of plaintiff for $940 sustained as not excessive.

6. Crops, § 3 —effect of provision in contract reserving right to growing crops. A clause in a contract for the exchange of lands, reserving to one party the right to growing crops and also providing to give to the other party immediate possession, gives to the former the right to ingress and egress to look after, harvest and remove such crops and to the latter the right to immediate possession of all other portions of'the farm.

7. Contracts, § 172 —construction of antagonistic clauses. When two clauses in a contract are antagonistic in part only, they should he enforced in such parts as are not in conflict.


text:
    Howard Thornley, Appellant, v. John Shey, Appellee.
    1. Nuisance, § 20

      —when bill to enjoin continuance of a smoke nuisance sufficient on demurrer. Bill by owner of a farm to enjoin defendant from using soft coal in his kilns for burning brick and tile so as to cause large volumes of dense black smoke, vapor,gases and offensive odors contaminating the air over, in and around complainant’s residence, orchard, garden and grape arbor, held sufficient on demurrer.
    2. Nuisance, § 21

      —token bill to enjoin a continuing nuisance sufficient to give court of equity jurisdiction. Where a bill for an injunction alleges that the acts complained of constitute a continuing nuisance and cannot he adequately compensated or established in an action at law and that an injunction is,the only remedy to avoid a multiplicity of suits and irreparable damages to the complainant and his property, held that a court of equity has jurisdiction without a prior determination of the question by a court of law.
    3. Injunction, § 183

      —when bill need not be verified. Bill for an injunction, which prays for an injunction upon the final hearing and not for a temporary injunction, need not be verified in order to give it a standing in court.
    4. Injunction, § 216

      —laches. Bill to enjoin a continuance of a nuisance, held not subject to demurrer on the ground of laches where it appears that complainant was active and persistent in his effort to rid himself thereof almost from the beginning and, having-failed by the usual and ordinary means, appealed to the court to secure his legal rights.
    Appeal from the Circuit Court of Cass county; the Hon. Albert Akebs, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 16, 1913.

      Neiger & Gordley, for appellant.
    Hardin W. Masters, Charles A. Gridley and Thomas D. Masters, for appellee.

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

   Mr. Justice Creighton

delivered the opinion of the court.

This was a hill in chancery filed by the appellant to restrain an alleged nuisance said to have been maintained by the appellee. A general demurrer together with special causes for demurrer were filed to the bill, and were, by the court, sustained, and the bill dismissed at the cost of appellant for want of equity.

An appeal has been perfected by the appellant, thus bringing the record of the proceedings before us for review.

The bill, in substance, charges that appellant is the owner of a farm of about two hundred and six acres, situated in Cass county, Illinois, and that he resides thereon with his family; that said farm is improved with a residence, barn and outbuildings, and is bounded on the south by a public highway, and along the said highway is appellant’s residence, orchard, vegetable garden and grape arbor; that at the time of the purchase of the said farm by appellant, and for a long space of time prior thereto, the appellee was engaged in the business of manufacturing brick and had his plant located on the south of appellant’s residence, across the public highway, a distance of about two hundred and twenty feet, and that at that time the only fuel used by the appellee for burning the brick was wood, and that said business as then conducted managed and used caused no offense whatever to appellant or injury to his property, premises or the health of himself and his family; that in the year 1909 the said appellee removed the brick kilns formerly used in the said business of manufacturing brick and erected in place thereof two large kilns for the purpose of burning brick and tile, and connected therewith three large smokestacks of the height of twenty feet, and commenced to operate the said plant in the spring of 1910 and continued to operate the same from thenceforth almost day and night, using soft coal in large quantities for fuel in burning the said brick and tile; that because of the use of soft coal, as aforesaid, large volumes of dense black smoke, vapor, gases and offensive odors contaminated the air over, in and around appellant’s residence, orchard, garden and grape arbor so as to render the air unhealthy and render the premises unfit for habitation; that said smoke, soot, gas, vapor and offensive odors greatly damaged the fruit in his orchard, the grapes, vegetables and trees of the appellant, and at times the smoke was so dense and the air so charged with smoke, soot, and gases that the residence of appellant was required to be kept closed in order to make it possible to remain therein, insomuch so that the said plant became a nuisance; that during the said time the family of appellant were prevented from using their porches or lawns because of the smoke, soot, gas and noxious odors sent forth by the appellee from the said brick and tile plant, by reason of the use of said soft coal; that appellant repeatedly requested appellee to desist from the use of said soft coal in his said plant, but that appellee failed and refused to so desist and abate the said nuisance. The prayer of the bill is that appellee might be enjoined from using his said brick and tile plant and kilns so as to cause dense black smoke, noxious gases and offensive odors to be emitted from the smokestacks of said plant and to pass out and be carried into, upon and around appellant’s said dwelling, garden, orchard and grape arbors, to the damage of his home and premises, etc.

Appellee filed demurrers, general and special, to the said bill, raising the following objections to the sufficiency thereof:

That appellant had been guilty of laches.

That there was no equity in the face of the bill.

That appellant had an adequate remedy at law.

That the hill fails to disclose any foundation upon which a court of equity could act.

The first objection urged to the sufficiency of the bill is that appellant was guilty of laches. From the allegations of the bill we cannot believe appellant’s action in the premises could be regarded as laches. The bill states that in the spring of 1910 the appellee began to operate the said kilns by the use of soft coal, which put forth large quantities of smoke, soot, gases and noxious odors, and that the same covered his premises, entered his home, destroyed his crops and made it impossible for him to use his porches or lawns, and rendered his residence almost uninhabitable; that many times during the interval between that date and the filing of the bill herein, appellant requested and demanded of appellee that he desist from the use of soft coal as a fuel in his kilns, and that on all occasions appellee refused so to do and continued and threatened to continue in the use of soft coal, knowing its effect upon the property and comfort and health of appellant and his family.

If these allegations are true, and so far as the question raised by the demurrer is concerned they must be taken as true, instead of being guilty of laches the appellant seems to have been active and persistent in his efforts to rid himself of what he terms a nuisance, almost from the beginning, and having failed by the usual and ordinary means resorted to by men he appealed to the court to secure what he thought to be his legal rights.

It is next urged as ground of objection to the bill that the facts stated therein show appellant had an adequate remedy at law.

The allegations of the bill upon this feature of the case are that the acts of the appellee therein complained of constitute a continuing nuisance and cannot be adequately compensated or established in an action at law, and that injunction is the only remedy to avoid a multiplicity of suits and irreparable damage to appellant and his property.

Under this state of fact, a court of equity has jurisdiction, without a prior determination of the question by a court at law. Oehler v. Levy, 234 Ill. 595.

It is also insisted by appellee that inasmuch as the bill was not verified the court could not grant the relief prayed therein. This bill does not pray for temporary injunction, but does pray for an injunction upon the final hearing of the cause. Appellant was not required to verify his bill in order to give it standing in court. In support of this view innumerable authorities can be cited, but we deem it sufficient to quote from Shobe v. Luff, 66 Ill. App. 414, where it is said: “Of course, it is well known to the members of the bar that an injunction may be decreed on the hearing of a case when that is the proper relief; whether the bill is verified by affidavit or not.”

We are of the opinion the bill is a good bill and requires answer.

The decree is, for the reason given above, reversed and the cause is remanded with directions to the chancellor to overrule the demurrer and require appellee to answer the bill.

Reversed and remanded %vith directions.