text:
    The People of the State of Illinois ex rel., Alex Anderson, Appellee, v. County of Lee, Appellant.
    Gen. No. 6,164.
    1. Statutes, § 213

      —when construction of previous statutes controlling in construing re-enacted statute. Where a statute which has not been judicially construed re-enacts previous statutes with slightly but not materially different provisions, the construction given by the courts to such previous statutes will control the construction of the re-enacting statute.
    2. Statutes, §205

      —when presumed Legislature had in mind re-enacted statutes and construction placed thereon by courts. Where a statute re-enacts previous statutes with slightly but not materially different provisions, which previous statutes have received judicial construction, it must be presumed that the Legislature, in passing the re-enacting statute, had in mind the previous' statutes and the construction given by the courts to such statutes.
    3. Statutes, § 199

      —when words of statute will not he departed from. Where a clause in a statute providing for the enforcement of a duty is clearly limited to the duty imposed in the same section, the courts are not at liberty so to extend the effect of such clause as to make it apply to the enforcement of a different duty imposed by a different section of the same act, for the enforcement of which different duty the section imposing it does not in terms provide, although it cannot be perceived why the Legislature limited the application of such clause.
    4. Roads and bridges, § 154

      —when county cannot he compelled under statute to aid in construction or repair of bridges. Following the construction given by the courts to previous statutes re-enacted with slight but not materially different provisions, by Hurd’s Rev. St., ch. 121, art. V, sec. 36, providing for the construction by counties of bridges on or near county lines, held that the statute contains no express provision for compelling a county to aid in the construction or repair of bridges not “across any stream which is the boundary line between” counties, or “within eighty rods of such boundary line, and the cost of such bridge will equal or exceed $5,000, as to which class of bridges such statute expressly provides a method for compelling such aid.
    5. Roads and bridges, § 154

      —when writ of mandamus erroneously granted to compel county to aid in construction of bridges. In a petition for mandamus to compel a county to aid in the construction of bridges on or near county lines under Hurd’s Rev. St., ch. 121, art. V, sec. 36, providing that “bridges over streams which divide counties, and bridges on roads on county lines, and bridges within eighty rods of county lines, shall be built and repaired at the expense of such counties,” but providing no method for the enforcement of such duty except as to bridges “across any stream which is the boundary line between” counties or “within eighty rods of such boundary line, and the cost of such bridge will equal or exceed $5,000,” held that the writ was erroneously granted as to seven of such bridges, and that the writ was properly denied as to two bridges.
    Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed in part and affirmed in part.
    Opinion filed December 8, 1915.
    Harry Edwards, for appellant.
    William J. Emerson, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

This is a mandamus proceeding begun in the Circuit Court of Lee county, by a resident landowner and taxpayer of Ogle county to compel the county of Lee to aid in rebuilding certain bridges on public highways on the county line between Ogle and Lee counties, and on highways within eighty rods of said county line. There was a trial before the court on stipulated facts which left the decision to depend entirely on the construction of section 36 of article V of our Roads and Bridges Act. of 1913 (chapter 121, Hurd’s Rev. Stat.). The first sentence of said section directs that three classes of bridges (1) over streams which divide counties (2) on roads on county lines (3) within eighty rods of county lines ‘ ‘ shall be built and repaired at the expense of such counties.” The next two sentences direct that bridges of class (1) and (3) when the cost of construction shall be $5,000, or over, shall be built by such counties in the proportion indicated, and when one county, desiring to construct such bridge, has appropriated its share of the cost of constructing the same, the other county shall make an appropriation for its share of the cost, and if it fails to do so, any court of competent jurisdiction shall issue an order compelling it to make such appropriation. Further provided as to bridges in class (3) that cost less than $5,000 that the .expense of building and maintaining shall be borne by both counties in the proportion to be fixed as there indicated, but no provision as to enforcing that liability. The section reads as follows: “Bridges over streams which divide counties, and bridges on roads on county lines, and bridges within eighty rods of county lines, shall be built and repaired at the expense of such counties. And all such bridges over streams which form the boundary line between two counties, and all such bridges within eighty rods of such boundary line, when the cost of constructing the same shall be $5,000 or over, shall be built by such counties respectively in the proportion that the taxable property in each county respectively bears to each other according to its assessed value as equalized at the time of constructing such bridge. And when any county desires to build any such bridge across any stream which is the boundary line between such county and another county, or desires to build any such bridge within eighty rods of such boundary line, and the cost of such bridge will equal or exceed $5,000, and the county desiring to construct such bridge has appropriated its share of the cost of constructing the same, then it shall be the duty of such other county to make an appropriation for its proportion of the cost of said bridge on the basis of the assessed value of the property, real and personal, of each of said counties according to the last preceding assessment thereof as equalized, and if such other county fails or refuses to make an appropriation for its proper portion of the cost of constructing such bridge, any court of competent jurisdiction shall issue an order to compel such county to make such appropriation upon a proper petition for that purpose, and the cost and expense of maintaining and keeping the same in repair after the same is built and constructed shall be borne in the proportion of the assessed value of the property in each of said counties according to the latest equalized assessment thereof: Provided, that for the building and maintaining of bridges over streams near county lines in which both are interested and where the cost thereof is less than $5,000, the expense of building and maintaining any such bridge shall be borne by both counties in such portion as shall be just and equitable between the counties, taking into consideration the taxable property in each, the location of the bridge, and the advantage of each, to be determined by the commissioner in making contracts for the same, as provided for in section 37 of this act.”

None of the bridges in question are of class (1). Seven of the nine are of class (2) and are located on the county line road running east and west between the two counties. The other two bridges are of class (3) located within eighty rods of the county line. These nine bridges were so worn and decayed that new bridges in their places were necessary and the cost of building the seven bridges on the county line would be from $185, the least expensive, to $1,230, the most expensive, and to build the two bridges near the county line would cost $700 and $1,330, respectively. It was stipulated that if said bridges are required to be built by said counties, each should pay one-half the cost thereof, and further stipulated that no contract had ever been entered into between said counties to build, repair or maintain any of said bridges, and that both of said counties are under Township Organization. The stipulation covered other facts not necessary to be here noticed. The court granted the prayer of the petition as to the seven bridges on the county line road, and denied it as to the two bridges within eighty rods of the- county line. By appropriate assignment of errors and cross-errors such action of the court is here presented for review. Counsel say there is no reported judicial construction of this statute, and we know of. none. There was a similar provision in the Revised Statutes of 1874, sec. 107, p. 930, reading as follows: “Bridges over streams which divide towns or counties and bridges over streams on roads on county or town lines, shall be built and repaired at the equal expense of such towns or counties: Provided, that for the building and maintaining of bridges over streams near county or town lines, in which both are equally interested, the expense of building and maintaining any such bridges shall be borne equally by both counties or towns.”

This provision was construed by the Supreme Court in Com’rs of Highways v. Com’rs of Highways, 100 Ill. 631, and it was said that the provision considered alone seemed to impose a liability, but it was pointed out that the two succeeding sections (108 and 109) provided for the making of joint contracts by the commissioners of the adjoining towns or counties, and for the enforcement of such contracts when made, and that section 107 contained no provision whereby one town could compel another to erect or repair a bridge on a town line; therefore it was held that the clause in section 107 was intended to apply only to cases where contracts had been made as provided in the following sections. The court observed, in discussing the statute then in force, that great injustice might result in not observing the modification of this clause; that a densely populated township on one side of a stream might bankrupt an adjoining township of few inhabitants on the other side of the stream by requiring an equal contribution to the building of such bridge. The question again arose in People v. Com’rs of Highways, 158 Ill. 197, and two sections of the then existing Eoad and Bridge law were quoted and discussed and it appears that the first section had been changed, perhaps to meet the suggestion of injustice, by omitting the words “equal” and “equally,” leaving the obligation to repair or build bridges on county line roads and bridges on streams which divide county lines the same, except it was to be at the expense of the adjoining municipalities without stating in what proportion, and for the building and maintaining of bridges near county lines it was provided that the expense should be just and equitable, taking into consideration the taxable property of each, the location of the bridge, and the advantage. The statute there recited contained provisions as to the making and enforcing of joint contracts for building such bridges, and the court held that the liability apparently imposed could not be enforced in the absence of contract, but found there was a contract that should be enforced.

The slightly varying imperative provisions under consideration in the two above cited cases do not materially differ from the apparently imperative provisions in the present act, and unless there has been some material change in the following provisions, those two cases control, and one county cannot compel another to contribute to the building of a bridge. Under the former statutes it was held, as we have seen, that while the obligation to build and repair bridges was in the first clause clearly imposed on adjoining counties and towns, still because the Legislature in that section of the statute had not provided any wáy of enforcing the imposed duty but in the succeeding two sections had provided that it should be arranged by contract between the authorities, that the duty could not be enforced in the absence of a contract. It is to be presumed that the Legislature had these former statutes and their construction by the Supreme Court in mind when it passed the present statute. It left entirely the same clause (omitting towns) requiring adjoining counties to build the three classes of bridges mentioned, and met the suggestion that no way was provided in that section for enforcing the duty by providing a way as to a part, but not all of the bridges falling within the designation in the first clause, and left the succeeding sections with practically the same force and effect bearing on the construction of the first clause as in the former statutes. Counsel suggest, in substance, that the Legislature must have intended that this first clause should be enforced by mandamus; that there is no good reason why it should impose the duty as to all bridges and then limit the right of enforcement to a part of the bridges. But if the right to enforce the first provision of the statute requiring counties to join in the building of all bridges of a certain description must depend upon a clause in that section providing for the enforcement of the duty, then it seems to us we must look at the clause claimed to have that effect, and if it is clearly limited to a part only of the bridges first designated, the court is not at liberty to extend its effect to all of the bridges, even though it cannot bé perceived why the Legislature limited it'to a part of them. The present act makes one such change by expressly providing for compelling a county to aid in building a bridge on a stream which is the boundary line, or within eighty rods of such boundary line, if the cost of such bridge will equal or exceed $5,000; but the first seven bridges here in question were neither on such a stream nor was the cost of any of them $5,000, and if we read “within eighty rods of such boundary line” as meaning within eighty rods of the county line, still the two other bridges are excluded because neither óf them were to cost $5,000. Therefore, there is no express provision in the present statute for compelling the county of Lee to aid in building any of these nine bridges. But there is a proviso as to bridges over streams near county lines that cost less than $5,-000. Assuming “near” is to be read “within eighty rods,” we have a description of the last two bridges in question here, and it is imperatively said that the cost shall be borne by both counties in practically the same language as to proportionment found in the statute under discussion in the People v. Com’rs of Highways, supra. But there is no direction as to enforcing the duty, and the adjustment of the relative amounts to be paid is fixed by reference to a succeeding section, as it was in the former act.

We do not see that the statute admits of a different construction from that given former acts in the two cases above cited. We are therefore of the opinion that the court erred in granting the prayer of the petition as to the seven bridges on the county line road, and did not err in refusing to grant the prayer of the petition as to the two bridges within eighty rods of the county line. That part of the judgment granting the prayer of the petition as to the seven bridges on the county line is reversed, and the part denying the prayer of the petition as to the two bridges near the county line is affirmed.

Reversed in part and affirmed in part.


source: Caselaw Access Project

author: Mr. Presiding Justice Carnes

license: Public Domain

text:
    A. H. White, Defendant in Error, v. Chicago, Peoria & St. Louis Railroad Company, Plaintiff in Error.
    Gen. No. 6,206.
    1. Railroads, § 416

      —how decree of foreclosure providing for enforcement of payment out of assets of sale and assumption of liabilities construed. Where a decree ordering the sale of a railroad under foreclosure requires the purchaser at such sale to assume certain liabilities incurred by the receivers of such railroad before the foreclosure, and also provides for enforcing the payment of such claims out of assets received by the purchaser at the sale, the provision as to assumption of liabilities is independent of the provision for enforcing payment out of the assets.
    2. Railroads, § 427

      —when liability of purchaser at foreclosure sale for personal injuries based upon decree. In an action by a passenger for personal injuries which first accrued against the receivers of a railroad corporation, where defendant is either the purchaser or assignee of the purchaser at'a foreclosure sale of the property of such corporation under a decree requiring such purchaser and its assigns to assume, and pay all liabilities incurred by such receivers in the operation of such railroad, defendant’s liability rests on the provisions of such decree, and compliance therewith.
    3. Pleading, § 100

      —what is effect of plea of general issue in action for‘negligent injuries. In an action to recover for personal injuries alleged to be the result of negligence, a plea of the general issue is to be treated as a plea of not guilty and as a general denial of the material averments of the declaration.
    4. Railroads, § 427*—when purchaser at foreclosure sale assumes liabilities. Where a decree ordering the sale on foreclosure of the property of a railroad required the purchaser at such sale or its assigns to assume, as part of the purchase price, all liabilities incurred by the receivers remaining unpaid at the time of sale, such purchaser or its assigns, by acquiring such property, undertook to pay such liabilities when established as provided by the decree.
    5. Railroads, § 53

      —when purchaser at foreclosure sale assuming liabilities may be sued. In an action on a liability first accruing against the receivers of a railroad before the sale of its property under foreclosure, where defendant is either the purchaser at such sale or the assignee of such purchaser, and where the decree ordering such sale requires such purchaser and its assigns to assume and pay all liabilities incurred by such receivers when such liabilities are established as provided by such decree, defendant cannot contend that the liability of the receivers has not been established where they are joined as parties, since defendant is the only party having a real interest in the defense, and is permitted to control such defense and required to assume its burdens.
    6. Railroads, § 427

      —when purchaser at foreclosure sale directly liable for claims against receiver. Where a decree ordering the sale under foreclosure of the property of a railroad corporation requires that the purchaser at such sale or its assigns unconditionally assume and pay all liabilities accruing against the receivers of such corporation, such liability may be enforced in an action at law directly against such purchaser or its assigns.

      7. Contracts, § 349

      —when person not party to contract right of action in own name. A third person not a party to a contract made for his benefit may maintain an action in his own name for a breach of such contract.
    8. Receivers, § 46

      —how claims against enforced. Receivers of corporations are not personally liable for claims accruing against them as such receivers, but property in their hands as such receivers may be subjected to the payment of such claims, after the sale of such property by such receivers.
    9. Railroads, § 427

      —when provisions in foreclosure decree as to establishment of assumed claims against purchaser complied with. In an action on a liability first accruing against receivers of a railroad corporation, where defendant is the purchaser or assignee of the purchaser of the property of such corporation at a foreclosure sale under a decree requiring such purchaser or its assigns to assume and pay all liabilities incurred by such receivers before foreclosure, provided that such liabilities are established as provided by the decree, a plaintiff has substantially complied with the provisions of such decree as to the establishment of his claim where such purchaser or assignee defends the action in the State Court, although such receivers are not joined as parties to the action.
    10. Appeal and error, § 1699

      —when error in overruling motion to direct verdict waived. It is not error to overrule a motion made by defendant at the close of plaintiff’s evidence for a directed verdict in its favor on the ground of variance where defendant did not rest, but introduced evidence on its own behalf, thereby waiving any error in overruling its motion.
    11. Carriers, § 476

      —when evidence sufficient to establish ownership of railroad. In an action to establish a claim for personal injuries sustained by a passenger by stepping off the unlighted platform of a railroad depot, which claim first accrued against the receivers of such railroad corporation before foreclosure, and where defendant was alleged to be the owner of such railroad by assignment from the purchaser of such railroad at a foreclosure sale ordered by a decree requiring that such purchaser or its assigns assume such liabilities when established as required by the decree, evidence held to warrant a finding that at the time the action was brought defendant was in possession of and was operating the railroad as owner, and that it could have become such owner only as the purchaser or as assignee of the purchaser at such sale.
    12. Evidence, § 471

      —when evidence sufficient to prove facts. Slight evidence, not so clear and accurate as is required on disputed questions, is sufficient to prove facts which no one is expected to or does deny, and which are naturally assumed from the history of the case.
    13. Carriers, § 362

      —when evidence sufficient to establish negligence in failing to light station platform. In an action by a passenger to establish a claim for personal injuries sustained as a result of stepping off a railroad platform in the nighttime, alleged to be due to the negligence of the receivers of such railroad in failing to light such platform, where defendant had assumed the liabilities of such receivers, evidence held to warrant a finding that such receivers were negligent in failing to light the platform.
    14. Carriers, § 421

      —when evidence sufficient to establish exercise of due care by passenger injured by stepping off station platform. In an action by a passenger to establish a claim for personal injuries sustained by stepping off a railroad platform in the nighttime, where it was alleged that the receivers of such railroad corporation negligently failed to light such platform, so that when plaintiff was looking for a toilet he failed to see the edge of the platform owing to the darkness, evidence held to warrant a finding that plaintiff exercised ordinary care.
    15. Damages, § 128

      —when verdict not excessive in action for personal injuries. In an action to recover for personal injuries sustained by a man fifty-two years of age, and of an earning capacity of about $100 a month, where the injuries sought to be recovered for consisted of -a fracture of the arch of the foot, causing suffering for several weeks, and resulting in a permanent injury to the foot, materially interfering with walking, a verdict for plaintiff of $5,000 held not excessive.
    16. Appeal and error, § 1772

      —when judgment will not be reversed. Although an action involves questions which cannot be decided on any existing decisive authority, a court of review will not reverse a judgment in such action where substantial justice appears to have been done, and where there is no reason to suppose that a retrial under different procedure directed by the reviewing court would be more in accord with established methods.
    Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed December 8, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Stevens, Miller & Elliott, for plaintiff in error; Wilson, Warren & Child, of counsel.
    Daily & Miller and Robert N. McCormick, for defendant in error.

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

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

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

A. H. White, the defendant in error, was injured in the night of November 11, 1912, by stepping off the unlighted depot platform of the Chicago, Peoria & St. Louis Railway Company at Forrest City, Illinois, and falling on the ground, while waiting as a passenger to take a train. The company was at that time in the control of receivers appointed by the District Court of the United States for the Southern District of Illinois, Southern Division, in a foreclosure suit there pending. Afterwards, and before this suit was begun, there was a sale of all the railway property in said foreclosure proceeding, and the plaintiff in error, with the same name as the other corporation except the word “railway” was changed to “railroad,” seems to have acquired title to the property under the foreclosure sale, and was operating the road when this suit was commenced. Under the decree of sale, one so acquiring title was required to pay in addition to the purchase price bid “to the extent that the assets or proceeds of assets in the receiver’s hands shall be insufficient for that purpose” among other things, “liabilities which shall have been legally incurred” in the operation of the railway by the receivers, before delivery of possession of the property sold. And it was provided in the decree of sale that any portion of such liabilities not paid prior to such delivery of possession to the purchaser should, when duly established, remain and constitute a fresh lien upon the property in the hands of the purchaser, or his assignee, until fully paid. And further provided that any claim for any such liability incurred during the receivership not presented to the receivers before the delivery of the possession of the property shall be presented for allowance within four months after the first publication by the receivers of a notice published upon the request of any purchaser after delivery of possession of the property to the purchaser, and that claims not presented within four months after said first publication shall not be enforceable against the receivers, the property, the purchaser or his assignees. And further provided if the purchaser, or his assignee, shall refuse, after demand made, to pay any such liability, “the person holding the claim therefor, whether established in a State Court, or any other court of competent jurisdiction, may, upon fifteen days’ notice to said purchaser,,his or their successors or assigns, file his petition in this (Federal) Court to have his said claim enforced against the property, * * * and that such purchaser, or assignee, shall have the right to appear and make defense to any claim so sought to be enforced. * * * And jurisdiction of this suit is retained by this (Federal) Court for the purpose of enforcing these provisions of this decree.” And further provided that such purchaser or assignee “shall have the right to enter his or their appearance in this court or in any other court,” and that such purchaser or assignee or any party to the foreclosure suit might contest any claim existing and undetermined at the time of the sale, or any demand presented thereafter which would be payable by such purchaser or assignee, or chargeable against the property purchased in addition to the amount bid by such purchaser.

The part of the decree from which we have attempted to state the provisions applicable to the questions presented here, reads as follows:

“The purchaser or purchasers, his or their successors or assigns, shall, as part consideration and purchase price of the property purchased, and in addition to the sum bid, take the property and receive the deed or deeds therefor upon the express condition that he or they or his or their succsesors or assigns shall pay, satisfy and discharge—to the extent that the assets or proceeds of assets in the receivers’ hands shall be insufficient for that purpose—any residue, remaining after the application of the proceeds of the sale of the mortgaged premises, (a) of any unpaid‘compensation that shall have been allowed by this court to the receivers, (b) of all indebtedness and obligations or liabilities which shall have been legally contracted or incurred, in or about the management and operation of the railroads and properties of the defendant Railway Company, by the receivers before delivery of possession of the property sold; and any portion of such indebtedness, obligations and liabilities which shall not have been paid by the purchaser or by the receivers, prior to such delivery of possession shall, when duly established, remain and constitute a fresh lien upon the property in the hands of the purchaser or purchasers, his or their successors or assigns, until fully paid, satisfied or discharged, provided, however, that any such claims for indebtedness, obligations or liabilities contracted or incurred during the receivership which shall not have been presented to the receivers at the time of delivery of possession of such property shall be presented for allowance within four (4) months, after the first publication by the receivers of a notice published in a newspaper regularly issued, and having a general circulation in Springfield, Illinois, which said publication shall be made at least once a week for a period of four (4) weeks upon request of any such purchaser or purchasers after delivery of possession of the property to the purchaser or purchasers ; and any such claims which shall not be presented for allowance within the period of four (4) months after said first publication of notice shall not be enforceable against the said receivers, nor against the property sold, nor against the purchaser or purchasers, his or their successors or assigns; and (c) of any indebtedness and liabilities, contracted or incurred by the defendant Railway Company in the operation of its railroad and property before the appointment of the receivers, that are prior in lien to "the consolidated mortgage and that shall not have been paid or satisfied out of the income of the railroads and the properties in the hands of the receivers, for the collection and enforcement of which either claims or intervening petitions have been filed in this cause, upon this court adjudging the same to be prior in lien to said consolidated mortgage and directing payment thereof. Any payment for any such purpose made by the purchaser or purchasers, his or their successors or assigns, in advance of the final accounting and discharge of the receivers shall be treated as advances and subject to final adjustment on such accounting. In the event that such purchaser or purchasers, his or their successors ór assigns shall refuse, after demand made, to pay any of the aforesaid indebtedness, obligations or liabilities, the person holding the claim therefor, whether established in a State Court or any other court of competent jurisdiction, may, upon fifteen days’ notice to said purchaser, his or their successors or assigns, file his petition in this court to have his said claim enforced against the property aforesaid in accordance with the usual practice in relation to claims of a similar character; and such purchaser or purchasers, his or their successors or assigns, shall have the right to appear and make defense to any claim so sought to be enforced, and either party shall have the right to appeal from any order, judgment or decree made thereon. And jurisdiction of this suit is retained by this court for the purpose of enforcing these provisions of this decree.
“And such purchaser or purchasers, and his or their successors or assigns, shall have the right to enter his or their appearance in this court or in any other court, and he or they and any of the parties to this suit shall have the right to contest any claim, demand or allowance existing at the time of the sale and then undetermined or any claim or demand which may. arise or be presented thereafter, which would be payable by such purchaser or purchasers, his or their successors or assigns, or which would be chargeable against the property purchased in addition to the amount bid by such purchaser or purchasers at the sale; and may appeal from any decision relating to any such claim, demand or allowance.
“The purchaser or purchasers at such sale shall immediately after the confirmation thereof become entitled to enter his or their appearance in this suit and become a party to the record herein, thereby becoming bound by all proceedings thereafter taken in this suit.”

It is to be observed that the purchaser’s assumption of liability for payment of claims against the receivers is independent of the provisions for enforcing payment out of assets that the purchaser receives under the sale. The liability, if any, of plaintiff in error, rests on the above provisions in the decree of sale under which it acquired the property, and while it is contended that the evidence does not establish negligence of the receivers or due care of-the defendant in error, the principal and difficult question is whether, assuming a case made that would have warranted a judgment against the receivers, the plaintiff in error is liable,in this action in which the receivers are not a party, for a claim that the receivers never had an opportunity to defend.

The declaration, as finally amended, set out the receivership, the wrong and injury complained of occurring during such receivership, the substance of the above quoted provisions of the decree as to liabihty of purchasers and assignees of purchasers at the receivers’ sale; averred that the defendant was such assignee; that there was and had been no funds in the hands of the receivers for payment of the claim; that the claim had been presented to the receivers within four months after publication of no+ffie, as provided in the decree, and had not been paid. The defondant pleaded the general issue, and a special plea setting out the above quoted provisions of the decree practically as recited in the declaration, and averring that said claim had never been established against said receivers; that said receivers had never been sued thereon or given an opportunity to defend the same in any court of competent jurisdiction, and alleging that until said claim has been so established against said receivers the indebtedness cannot be enforced against the defendant, or the property acquired by the defendant at the foreclosure sale, and that when said claim is established against said receivers the obligation cannot be enforced against the defendant or its property except by filing a petition in said Federal Court. The trial court sustained a demurrer to this special plea, and the defendant, standing by the plea,went to trial on the general issue, which was a plea of not guilty assumed and treated on the trial as a general denial of the material averments in the declaration. A verdict of $5,000 was rendered, and the court, after denying motions for a new trial and in arrest of judgment, entered judgment on the verdict against the defendant in the usual form, except instead of ordering execution to issue thereon it was provided that the judgment should be satisfied and enforced in manner and form as provided by the order and decree of the Federal Court, referring in apt words to the decree hereinbefore mentioned.

There was proof of the service of notice of claim on the receivers, and demand and refusal of payment within the four months’ time limited by the decree, and no question is made of insufficiency of proof of the averment in the declaration that there were no funds in the receivers’ hands to pay the claim. The argument of plaintiff in error on this branch of the case rests on its assumption, as stated in its plea, that no direct liability could arise against it until the claim was established in a suit against the receivers. Assuming this to be a liability incurred in the operation of the road by the receivers and remaining unpaid at the time of the sale and delivery of the property under the decree, plaintiff in error, by acquiring the property, undertook to pay it when it should be duly established, provided it should be presented for allowance to the receivers within the four months limited, and the decree provided that the claim might be established in a State Court, and plaintiff in error had the right to appear in such State Court and contest the validity of the claim. If the receivers had been made defendants to this suit, and the plaintiff in error had appeared with the receivers and contested the suit, there would have been little, if any, ground for objection that the claim had not been established, in a manner to bring it within the provisions of the decree. In such case plaintiff in error would have been the only party having any real interest in the defense of the suit, and would have been permitted to control the defense and required to assume its burdens. Therefore, the question is whether the defendant in error, by omitting a nominal defendant not interested in the result of. the suit and suing the real party interested in defending the claim, has forfeited his right of recovery. If plaintiff in error had unconditionally assumed the payment of all valid claims of this character, we are aware of no reason why its liability could not have been enforced in a direct suit at law against it. It has long been settled law in this State that where one person enters into a single contract with another for the benefit of a third person, not a party thereto, the latter may maintain an action in his own name on such contract for the breach. (Eddy v. Roberts, 17 Ill. 505; Bristow v. Lane, 21 Ill. 194; Beasley v. Webster, 64 Ill. 458; Snell v. Ives, 85 Ill. 279; Thompson v. Dearborn, 107 Ill. 87.) An additional reason for its application exists in this class of cases, as receivers are not personally liable for such claims, but property in their hands may be subjected to their payment under certain conditions, even after its sale by them. (Bartlett v. Cicero Light Co., 177 Ill. 68; Knickerbocker v. Benes, 195 Ill. 434.)

It is no doubt true, as counsel say, that plaintiff in error is not liable to any one that has not brought himself within the provisions of the decree. But we are not inclined to hold that the defendant in error in establishing the validity of his claim in a State Court, where it was contested by the only party interested in defending it, has failed to substantially comply with those provisions. No possible benefit to plaintiff in error could have accrued from making the receivers a party to this action after they had executed their trust and turned over all their property and had neither personal nor official interest in defending the claim. We are therefore of the opinion that the court did not err in its rulings on pleadings, evidence and instructions involving that question.

At the close of the plaintiff’s evidence the defendant asked the court to direct a verdict in its favor, and among other reasons claimed that there was a variance between the declaration and the proof in that the declaration alleged that the defendant became the purchaser of the property at said foreclosure sale and the proof fails to show who was the purchaser, or who is now the owner of the property, which motion was overruled. The defendant did not rest its case but introduced evidence in its own behalf after this action of the court, thereby waiving any error in so overruling that motion. But at the close of all the evidence it renewed its motion, which was again overruled. In presenting its last motion it did not again suggest a variance, and it may be doubted whether the court, without repetition of the objection, was required to consider that question in ruling on this' second motion after more evidence had been heard. But assuming that he was, we are inclined to the opinion that there was sufficient proof in the record to warrant the finding that plaintiff in error was, at the time of the commencement of this suit, in possession of and operating the road as owner, and it could only have become the owner as the purchaser or assignee of the purchaser at said judicial sale. The proof on that question is meager, but it is an instance of slight proof of a fact that nobody is expected to deny and nobody does deny, and that is naturally assumed from the whole history of the case, and therefore may be established by evidence not so clear and accurate as is required on disputed questions.

It is urged that the evidence does not show negligence of the receivers or due care on the part of the defendant in error. It appears that Forrest City is a small town. That at the time in question White was a man about fifty-two years old with an earning capacity of about $100 a month; that he was unacquainted in Forrest City, but reached there and passed near the depot before dark on the day of the injury. After dark he went to the depot and purchased a ticket from the agent in charge. The train that he wished to take was late, and while waiting he went out on the platform to look for a toilet. It was so dark that he could not see the edge of the platform or the ground, and in trying to pass around the end of the depot he stepped off the platform, which extended no further than the depot, and fell a distance of three or four feet, badly injuring his foot, breaking down the arch, resulting in much pain and suffering for several weeks and in a permanent injury, causing pain and materially interfering with his walking. There is no controversy in the evidence as to the manner or extent of the injury. It was a fair question for the jury whether the receivers were negligent in failing to light the platform, and whether defendant in error was exercising such care as ordinarily prudent men would use under similar circumstances. We are of the opinion that they were warranted by the evidence in finding these issues in favor of the defendant in error on principles announced in Toledo, W. & W. Ry. Co. v. Grush, 67 Ill. 262; Illinois Cent. R. Co. v. Keegan, 210 Ill. 150; and Toledo, St. L. & W. R. Co. v. Stevenson, 122 Ill. App. 654.

It is also claimed the judgment is excessive, but considering the latitude given juries in assessing damages in such cases, we do not think it is the duty of this court to disturb the verdict on that ground.

There are questions involved that cannot be answered on any decisive authority that we know of. It seems to us substantial justice has been done, and that we cannot award a retrial of the case with any confidence that a different procedure directed by us would be more in accord with established methods. The judgment is therefore affirmed.

Affirmed.

Mr. Justice Niehaus took no part.


author: Mr. Justice Niehaus

text:
    The People of the State of Illinois, Defendant in Error, v. John Goehringer, Plaintiff in Error.
    Gen. No. 6,071.
    1. Jury, § 66

      —when challenge to array on ground women not included in jury lists properly overruled. In á criminal case a challenge to the array on the ground that women were not included among the number of legal voters in making up the jury lists held properly overruled, women being not made eligible for jury service by the fact that they are made voters in elections of certain officers.
    2. Jury, § 79

      —when abridgement of right of examination error. In a criminal case it is error to abridge defendant’s right to a reasonable examination of jurors.
    3. Jury, § 80

      —what questions proper to determine existence of bias. In a prosecution for keeping open a tippling house on Sunday, where the principal witnesses appearing for the prosecution were the same as those appearing in a similar case previously tried, questions propounded to a juror who had also acted as such in such previous trial, as to his memory of such testimony and whether it would influence him in the present trial, examined and held proper matters of inquiry, to determine the predisposition and bias of the juror, and his mental state as to fairness.
    4. Jury, § 80

      —how juror may be examined as ground for challenge for cause or peremptory challenge. Within reasonable limits each party to an action has the right to examine a juror as to predisposition, bias or prejudice, and as to his mental state with reference to fairness in order to show not only a state of facts which may give ground for a challenge for cause, but also to enable the party to decide whether to exercise the right of peremptory challenge.
    5. Jury, § 80

      —what questions proper to determine bias. It is often indispensable to an intelligent selection of a fair and impartial jury that the occupation, habits, associations and predisposition of a juror be known in so far as such facts might tend to bias or pervert the juror’s judgment.
    6. Jury, § 3

      —right to trial by in criminal cases. Defendants in criminal cases are guarantied a trial by a fair and impartial jury, an object in which society is equally interested.
    7. Jury, § 72

      —what is extent of right to peremptory challenges in criminal cases. In order to obtain a fair and impartial jury in a criminal case, defendants are given by law the right of peremptory challenge to be exercised at the discretion of such defendant, which right may not be limited or restricted by the courts.
    8. Jury, § 79

      —when reasonable examination should be allowed. Reasonable examination of jurors by counsel should always be permitted so as to enable the court to see that the jurors stand indifferently between the parties and are possessed of the necessary qualifications. -
    9. Witnesses, § 19

      —when detective competent witness. In a criminal case the evidence of detectives who have been employed to secure evidence against defendant is competent.
    10. Witnesses, §216

      —what latitude allowed in cross-examination of detectives. In a criminal case where the principal witnesses for the prosecution are private detectives who have been employed and paid to secure evidence against defendant, full opportunity should be given to defendant to test the credibility of such witnesses by cross-examination and by other means provided by law for testing such credibility, and in such case cross-examination should be allowed the same latitude as in the case of a witness who is shown to be personally hostile to defendant.

      11. Witnesses, § 212

      —when error to unduly restrict exammation of hostile witness. In a criminal ease it is error to unduly restrict the scope of defendant’s cross-examination of a witness who is shown to be personally hostile to defendant and to have an inordinate desire that he be convicted, defendant in such case having a right to the broadest latitude in cross-examination, in order to test the credibility of such witness.
    12. Witnesses, § 216

      —what Scope allowed in cross-examination Of detectives in prosecution for keeping tippUng house open on Sum-day. In a prosecution for keeping a tippling house open on Sunday, where the prosecuting witnesses were private detectives employed and paid to secure evidence against defendant, and where one of the witnesses partly based the accuracy of his testimony on notes taken at the time of the acts testified to, held that defendant had a right to a complete cross-examination of such witnesses as to their sobriety on such occasions as bearing on their credibility and on the weight of their testimony, the number of saloons visited and the number of drinks taken bearing legitimately on the accuracy of their observations on those occasions and the reliability of their recollections, as well as on the evidentiary value of such notes.
    13. Witnesses, § 212

      —when improper to exclude on cross-examination evidence which may be used as basis for impeachment. In a prosecution for keeping a tippling house open on Sunday, a witness- testified that on a named date he had gone directly to defendant’s place after reaching North Chicago, and was asked by counsel for defendant on cross-examination: . “Did you testify in the case of People v. Krause, a few days ago?” Answer :7 “Yes.” “Did you testify that before you got to Goehringer’s that you had been to seven or eight places?” On objection the court ruled out the answer to the last question. Reid, that witness should have been allowed to answer the question, being proper both in form and substance, since the answer might have laid a foundation for the impeachment of the credibility of the witness.
    Error to the County Court of Lake county; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed December 8, 1915.
    E. V. Orvis and James G. Welch, for plaintiff in error.
    R. J. Dady and E. M. Runyard, for defendant in error.

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

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the plaintiff in error, John Goehringer, was tried by a jury, in the County Court of Lake county, and found guilty on the fifth, sixth and seventh counts of an indictment, charging him with keeping open a tippling house on Sunday. The plaintiff in error made a motion for a new trial, and in arrest of judgment, but both motions were denied by the court, and he was thereupon sentenced to pay a fine of $200 on each of the three counts upon which he was found guilty, and costs of suit. It was ordered by the court that he be committed to .the county jail until the fine and costs were fully paid; also that in case of his neglect or refusal to pay, he be required to work out the fine and costs on the public roads of Lake county, at the rate of $1.50 per day.

Various errors are assigned, and it is insisted that plaintiff in error did not have a fair and impartial trial. Plaintiff in error also assigns as error, the overruling of his challenge of the array of jurors, which was on the ground that the county board, in making up the jury lists, had not placed the names of women voters among the number of legal voters, from which the lists were made up. We are of opinion that the challenge was properly overruled. The same point involved here was decided by this court, at the present term, in the case of People v. Krause, ante, p. 140. It was there held that while women are legal voters for the election of statutory officers and certain other purposes, they are not thereby made eligible for jury service.

The plaintiff in error also claims that he was denied proper latitude in the examination of jurors; and that his right of cross-examination of the prosecuting witnesses, on material matters, was unduly abridged. It is well settled that a defendant in a criminal case is entitled to a reasonable examination of the jurors, so that he may intelligently exercise his right of challenge, either a challenge for cause, or a peremptory challenge, and that it is error to abridge this right. It appears from the record that the plaintiff in error attempted to make a certain inquiry of a juror who had been called to the box, and who had been a juror in another similar case, which had previously been tried, and in which witnesses testified for the prosecution, who also appeared as the principal witnesses on the indictment in the present case. Counsel sought to inquire whether this juror had any impression, from what he had heard in the other case upon the question, whether or not these witnesses were in fact in North Chicago on the Sundays involved. The court would not permit the inquiry to be made. Counsel for plaintiff in error also attempted to inquire if anything the juror had heard, in the case of People v. Keighko (in the event the same witnesses testified), would lead him to give more or less credence to the testimony of those witnesses ; but the inquiry on objection was cut off by the court. He also attempted to inquire of a juror whether such juror, upon recalling the former testimony of these witnesses in the other case, had any impression as to any of the facts, which these same witnesses had testified to in the other case; but the court sustained an objection to the question. Counsel also attempted to ascertain from a juror this fact: In case any of the witnesses were called in the present case who had been called, either for the State or for the defense, in the other case, which the juror had tried, would the impression the juror had formed of the truth and falsity of their testimony in the other case impress him in this case ? But the court sustained an objection to the question, and cut off the inquiry. This question also was asked of a juror: ' ‘Have you any impression, assuming that those witnesses who will testify that they were in North Chicago' on the same dates and in this particular defendant’s place on one of those dates, the facts that you have heard in the other case, would you have any impression now as to whether any of those facts are true or false?” But an objection to the question was sustained by the court, and the inquiry cut off.

We are of opinion that all the matters suggested by these questions were proper matters of inquiry. The right to examine a juror for the purpose of ascertaining his predisposition, or his bias, and his mental state, with regard to fairness, with a view to the intelligent exercise of the right of challenge, would be of very little value, if answers to questions such as these indicated could not be elicited. “Within reasonable limits, each party has the right to put pertinent questions, to show not only that there exist proper grounds for a challenge for cause, but to elicit facts, which will enable him to decide whether or not he will exercise his right of peremptory challenge.” (Thompson on Trials, 99.)

“In order to determine whether the person who may be called as a juror possesses the necessary qualifications, whether he has prejudiced the case, whether his mind is free from prejudice or bias, the suitor has the right to ask him questions, the answers to which may tend to show that he may be challenged for cause, or disclose a state of facts from which the suitor may see proper to reject such juror peremptorily.” Lavin v. People, 69 Ill. 304.

And the Supreme Court in the case of Donovan v. People, 139 Ill. 412, reiterated with increased emphasis the rule expressed in the Lavin case, supra. The language of the court on this point is as follows: “It is often indispensable to an intelligent selection of a fair and impartial jury, that the occupation, habits, associations and predisposition of the juror should be known, so far as they might tend to bias or pervert his judgment. To deprive a party, whether the People or the defendant, of an intelligent exercise of the right, is practically to take away the right. And every lawyer experienced in the trial of causes knows that to its intelligent exercise a reasonable examination of the juror is frequently absolutely necessary. If this may not be done, the People and the defendant alike must take all who are not subject to challenge for cause, or resort to peremptory challenge indiscriminately, and without that knowledge, easily within reach, if reasonable examination is permitted, which would enable them to exercise the right intelligently. The defendant is guarantied, in every criminal case, a trial by a fair and impartial jury, and society is equally interested in the selection of none other; and in view of this object to be attained in impaneling the jury, the law-making power of the state has deemed it wise to give the right of peremptory challenge, to be exercised in the discretion of the party entitled, and the courts are not authorized to limit or restrict the right * * *. Such reasonable examination by counsel should always be allowed as will enable the court to see that the jurors stand indifferently between the parties and are possessed of the requisite qualifications, and also to enable counsel to challenge for cause, if cause exists, or to exercise the right of peremptory challenge when in their judgment it is deemed necessary or advisable.”

It is apparent that the cross-examinations of the prosecuting witnesses were also unduly restricted. The evidence of guilt of the plaintiff in error did not come from officers who are chosen or charged with the duty of investigating violations of law, and with the duty of procuring the evidence of the guilt, but rested upon the testimony of two private detectives, who had been employed to secure the evidence upon which to base a conviction, for a certain remuneration.

This class of witnesses are legally competent; but it is clear, also, that a defendant in a criminal case should be given full opportunity to apply the tests provided by law for determining the credibility of such witnesses, one of which is cross-examination; and the cross-examination should not be any more restricted in the case of such witnesses, who, because of apparent personal interest in the result of a trial, may have developed an inordinate desire to secure a conviction, than of a witness who, by reason of personal hostility to the defendant, has perhaps developed the same kind of a desire. In all such cases, the broadest latitude in cross-examination should be allowed, and it is error to unduly abridge it. Sutton v. People, 119 Ill. 254.

Complete cross-examination of these prosecuting witnesses, concerning matters which might have a material bearing on their credibility, such as the condition of these witnesses with reference to sobriety, should have been allowed. Their condition as to sobriety was an essential element to be considered, in determining not only the accuracy of their observations, and the reliability of their recollection, but also the evidentiary value of the notes which they claim to have taken on the Sundays in question, upon which one of these witnesses testified, he partly based the accuracy of his testimony. The number of saloons which they visited on the Sundays in question, as well as the number of intoxicating drinks which they imbibed, therefore had a legitimate bearing upon the weight of their testimony.

It also appears in the record that the witness Walter F. Youngs, having previously testified that on May 3rd, after reaching North Chicago, he had gone with his brother directly to the place of the plaintiff in error; and the counsel for plaintiff in error propounded the following questions: “Did you testify in the case of People v. Krause, a few days ago?” Answer: “Yes.” “Did you testify, that before you got to Goehringer’s, that you had been to seven or eight places?” The latter question was objected to, and the court sustained the objection and ruled out the answer. This* question was a proper one, in form and substance; and the witness should have been allowed to answer it, inasmuch as the answer might have laid the foundation for an impeachment of the credibility of the witness. Math v. Chicago City Ry. Co., 243 Ill. 122; Chicago City Ry. Co. v. Matthieson, 212 Ill. 292; Chicago West Division Ry. Co. v. Ingraham, 131 Ill. 668.

For the errors mentioned, the case must be reversed and the cause remanded for another trial.

Beversed and remanded.


text:
    Adella Digging et al., Appellants, v. E. L. Axtell et al., Appellees.
    Gen. No. 6,074.
    1. Mortgages, § 714

      —when grantee purchasing real estate from purchaser at foreclosure sale not innocent purchaser for value. In a bill to redeem real estate from a master’s certificate of sale under a foreclosure of a mortgage, where the legal title to the real estate sought to be redeemed is in a grantee of the purchaser at such foreclosure sale, no question of such grantee’s being an innocent purchaser for value without notice of complainant’s claim arises where it appears from the findings of the master, which were approved by the court, that such grantee purchased such real estate subject- to any rights which complainant might be able to enforce by law against such real estate.
    2. Mortgages, § 730

      —when agreement for extension of time for redemption will be enforced. Courts of equity will enforce agreements involving an extension of the statutory or legal period of time for the redemption of property from a foreclosure sale.
    3. Witnesses, § 252

      —how credibility of witness on disputed fact determined. Where there is a direct conflict between the testimony of two witnesses as to a question of fact, the question as- to which witness has sworn truthfully must be determined by considering the circumstances which may corroborate one or the other of such witnesses.
    4. Mortgages, § 720

      —when evidence sufficient to sustain finding as to oral agreement for extension of time to redeem. On a bill to redeem real estate from a master’s certificate of sale under foreclosure of a mortgage, evidence held sufficient to sustain a finding that an oral agreement was made for the extension of the time to redeem beyond the statutory period.
    Appeal from the Circuit Court of McHenry county; the Hon. Charles Whitney, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed December 8, 1915.
    Fischer & North and E. H. Waite, for appellants.
    John B. Lyon and Barnes & Barnes, for appellees.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the appellants, Adella Diggins and her husband, Lon 0. Diggins, filed a bill in equity, in the Circuit Court of McHenry county, to redeem the premises described in the bill from foreclosure sale made February 18, 1911. The property in question, which was the residence of appellants, was purchased at said sale by the appellee E. L. Axtell, for the sum of $2,450, and a master’s certificate of sale issued to him therefor. The evidence shows that appellants had mortgaged the property in question to B. A. Nugent, as security for an indebtedness of $2,000, and having made default in the payment of the interest due, foreclosure proceedings were instituted; and that this sale made was pursuant to a decree in those proceedings. No redemption was.made from the sale; and on July 24,1912, two months after the statutory period for redemption had expired, a master’s deed was issued to the appellee E. L. Axtell on his certificate of sale. Afterwards, on August 14,1912, the appellee Axtel by deed conveyed the premises to the appellee William Doyle.

The appellants remained in actual occupancy of the property during the period of redemption, and since that time, and they were occupying the premises at the time of the making of the deed by appellee Axtell to appellee Doyle. The bill alleges that the appellee Ax-tell verbally promised to extend time of the statutory period of redemption, from May to November, 1912; and that appellants, relying on the promises of appellee Axtell, expended large sums of money in making improvements upon the premises, and in payment of taxes and special assessments which became due and payable during said period of redemption, and after the expiration thereof.

The cause was referred to a special master, to take proofs and report his conclusions, and he heard the evidence and reported the same, together with his conclusions, to the court. The special master found against the contention of appellants that an agreement or arrrangement had been entered into by appellee Axtell and appellants, whereby the redemption period was extended. The special master also found that appellee Doyle had sufficient notice of the interest in the premises claimed by appellants to put him upon inquiry as to such interest. Appellants filed exceptions to the findings of the special master, which exceptions were overruled by the court, and a decree entered approving the findings and dismissing appellant’s bill, from which decree the appellants have prosecuted an appeal to this court.

The question of the rights of an innocent purchaser for value, without notice of interests claimed by appellants, is not involved in this case, as it appears from the findings of the master, which were approved by the court in its decree, as well as from the evidence in the case, that appellee Doyle had sufficient notice of appellants’ claim; in fact, he really purchased the premises from appellee Axtell, subject to whatever rights appellants might be able to legally assert or enforce in the premises. The controlling question involved is whether the appellee Axtell, positively or by necessary implication, extended the time for the redemption of the'property in question, while the right of redemption existed. The law is well settled that courts of equity will enforce agreements of this nature, which involve an extension of the statutory or legal period of time for redemption of property from a foreclosure sale. Union Mut. Life Ins. Co. v. White, 106 Ill. 67; Nichols v. Otto, 132 Ill. 91; Davis, v. Dresback, 81 Ill. 397; Pensoneau v. Pulliam, 47 Ill. 58; Union Mut. Life Ins. Co. v. Kirchoff, 133 Ill. 368.

The question, therefore, resolves itself into one of fact to be decided from the evidence; and upon this question there is a conflict of evidence between the appellee Axtell and the appellant Lon 0. Diggins; and “to determine which has sworn truthfully we must look to the attending circumstances that may corroborate one or the other.” Union Mut. Life Ins. Co. v. White, 106 Ill. 70. The appellant Lon O. Diggins testified that about the middle of August, 1912, more than six months before the appellants’ time for redemption had expired, he had a conversation with appellee Ax-tell, relative to making an arrangement about saving the property involved for his wife, and he inquired of Axtell whether Axtell wanted the place for himself, and that Axtell answered he did not. Diggins thereupon informed Axtell that his wife had been willed one-eighth of the entire estate of his mother, and would get this share, in money, in November, 1912; and that this share would be abundantly sufficient to take care of the mortgage indebtedness represented by the master’s certificate held by Axtell; that Axtell thereupon said he wanted to look at the will, and Diggins, within a day or two, procured a copy of the will and brought it to Axtell, and said to him, after Axtell had read it, “You may see it is just as I told you it was,” and that Axtell admitted that it was so; and then inquired how he wanted to fix up the matter, whereupon Diggins suggested that appellants would like to have back a clear title to the place, and give Axtell a note and mortgage, which would be taken up when his wife would get her share in the estate of his mother, in November, 1912; and that Axteil replied, “I think, that will be all right;” and added, “I will think it over,” or “I will talk it over with my father.” That after-wards, within a couple of days, and before the expiration of the time of redemption, appellant Diggins again went to appellee Axteil and asked him about the matter, and explained to him that he wanted to know about it, because he was in a hurry to make some improvements on the house, if they were going to keep the place; that Axteil, on that occasion, gave him this assurance: “That will be all right, Lon; we will do that; go ahead and make any improvements; that will be all right.” That appellants then, with the knowledge and approval of appellee Axteil, went ahead with the improvements on the house; and among other things, painted it; also the barn, at a cost in labor and materials of about $50; that they put in sewer connections, at a cost of about $40; that they paid special sewer assessments, amounting to about $67; that they paid the general taxes for the year 1911 and for the year 1912, amounting together to $46.81; and that they made other smaller expenditures.

Diggins testified further that he tried to get the matter of the note and mortgage to be given to Axteil arranged repeatedly; that he asked Axteil several times if he would “go on and complete the deal,” and Axteil answered that he would as soon as he could get. B. F. Manley, who was appellee Axtell’s lawyer, to do it; that he, Diggins, thereupon asked Manley a number of times if Axteil had done anything about getting those papers made out, and Manley’s answer was that he had, and that he kept on insisting, until finally Manley drew a note and mortgage, which was duly executed by appellants; and that thereupon he had a meeting with Axteil, who after looking at the note and mortgage wanted to consult with his father about the matter; and after doing so, declined to accept them, because his father had advised him to “leave the matter as it was”; and that his father had said “it was just as well to leave it that way and not exchange any papers, as it would only make additional cost and expense”; but at that time, giving him the following assurance: “Tour wife will get the money in November, and you can pay it when you get it.”

Appellee Axtell denied that he agreed to take a note and mortgage for the amount due on his master’s certificate, and also denied that he agreed to extend the time of redemption to November, 1912, but admitted, on cross-examination, that he did say to appellant Diggins, in Manley’s office, when he declined to take the note and mortgage, “Pa says you better let it stand as it is,” indicating to appellants that they would be just as well off to let the matter stand as it was. Appellee Axtell also denied that he used some of the language attributed to him bearing upon the question of the extension of the time; but the incidents following the conversations, and the circumstances connected with and surrounding various transactions, admitted by the parties to have occurred, clearly indicate that appellee Axtell either stated to Diggins, or led him to believe, that he did not want to cut off appellants’ retaining the property, by the expiration of the time for redemption; but that all he wanted was his money, and interest, and that appellants would have time to arrange this matter of the redemption of the property until November, 1912. It is clear that the appellants had a well-grounded belief to this effect; otherwise they would not have gone on and expended over $200 on the property. It would be most unnatural to assume that, in their financial condition, they would have put into property, in order to improve it, preserve it, and enhance its value, the sum of money stated, if they had any idea that they were not going to retain the title to the propertyand the acts and conduct of appellee Axtell towards appellants, with reference to the property in question, after the alleged arrangement for an extension of time, strongly corroborate appellant Diggins’ version of the matter. For instance, appellee Axtell, before the time of the alleged arrangement for the extension of time, paid the taxes, as holder of the master’s certificate, in the year 1911; but did not pay taxes afterwards; he did not take out his master’s deed for two months after he was entitled to it, and when he got this deed he did not treat the property as though he was entitled to it as owner, or as though appellants no longer had any interest in it, nor did he attempt to get possession of it under his deed. He did not attempt to collect any rents for its occupancy, by appellants; nor did he make any direct demand for the possession of the property, until after he had made arrangements to transfer it to appellee Doyle, which was in August, 1912. He admits that several months after the expiration of the statutory redemption period he asked appellant Diggins to pay up, and at that time gave as a reason for wanting the money that he needed it right away, because he wanted to build himself a home. Why he should ask appellants to redeem this property, if he thought that he had lost their right of redemption, and that he was the owner of it and not obligated to let them redeem, is not evident; it surely is not in harmony with the position afterwards, and now, taken in this case, that he had nothing from which it could reasonably be inferred that they could redeem after their statutory right had expired. Even in his negotiations with appellee Doyle, he seemed to have been conscious of the fact that appellants had some rights in the property, which they might be able to enforce, for he agreed with Doyle that unless he could obtain the possession of the property, for Doyle, that Doyle should receive back from him the consideration which Doyle had given. All the acts and conduct of appellee Axtell as well as the acts and conduct of appellants, are consistent upon the theory that an arrangement was made for an extension of the time of redemption, but are wholly inconsistent with appellees’ claim, that no such arrangement was made.

The weight of the evidence on the question of the arrangement to extend the time is therefore clearly on the side of appellants; and we are of opinion that the exceptions to the finding of the special master, that there was no arrangement for the extension of the time of redemption, should have been sustained by the court; and that the court should have granted the prayer for relief and allowed the appellants to redeem said property. The decree is therefore reversed and the cause remanded with directions that the court grant the relief prayed for; and that the appellants be allowed to redeem, by paying to the appellee Axtell, by a short day to be fixed by the court, the amount paid by him at the foreclosure sale, and six per cent, interest thereon, from the date of said sale to the date fixed by the court for redemption; also the amount paid by appellee Axtell for taxes in 1911, with six per cent, interest thereon, from the date of such payment to the date fixed by the court for redemption; and that upon such payment, the deed of conveyance by appellee' Axtell to appellee Doyle be ordered canceled and set aside; also the mortgage and note executed by appellee Doyle to appellee Axtell; and that the appellee Axtell be required, upon such redemption, to reconvey, by proper deed, to appellant Adella Diggins, the title acquired by him in and to the property, through said master’s deed and certificate.

Reversed and remanded with directions.


author: Per Curiam.

text:
    John Riley, Appellant, v. John J. Webb et al., Appellees.
    Gen. No. 6,218.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 126

      —when appeal from decree sustaining will raises question of freehold. Adi appeal from a decree sustaining a will raises a question of freehold where the will devises real estate to the widow of testator which such widow could not have taken as heir at law, and makes other devises of real estate and annuities charged on real estate to persons not heirs at law, since if the will had been set aside all such interests in the real estate would have been defeated, and the real estate so devised would have in part passed to heirs at law who took nothing under the will.

      Appeal from the Circuit Court of Will county; the Hon. Abthub W. De Selm, Judge, presiding.
    Heard in this court at the October term, 1915.
    Transferred to Supreme Court.
    Opinion filed December 8, 1915.
    Statement of the Case.
    Bill in equity by John Riley, complainant, against John J. Webb and others, defendants, to contest the will of Thomas H. Riley, deceased. Complainant was one of the heirs at law of testator, who died leaving a widow and no descendants, and whose heirs at law were his brothers and the daughter of a deceased brother. From a decree sustaining the will, complainant appeals.
    Thomas H. Riley and Brickwood & Brickwood, for appellant.
    John W. Downey and Corlett & Clare, for appellees.

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

   Per Curiam.

2. Appeal and error, § 123 —when Appellate Court no jurisdiction of question involving freehold. The Appellate Court has no jurisdiction to determine a question of freehold.

3. Appeal and error, § 123 —when cause improperly appealed will he transferred to Supreme Court. A cause improperly appealed to the Appellate Court because involving a freehold will be transferred to the Supreme Court under section 102 of the Practice Act (J. & A. ¶ 8639).


author: Mr. Presiding Justice Dibell

text:
    The People of the State of Illinois, Defendant in Error, v. Colin H. Ostrander, Plaintiff in Error.
    Gen. No. 6,158.
    1. Intoxicating liquors—when title to liquor passes. The raleas to when title to ordinary chattels passes has no application to a case where the sale in question was of a bottle of intoxicating liquor in violation of law, and where the sale was a mere device by which It was sought to give a color of legality to such a sale.
    2. Intoxicating liquors—when title to liquor passes. Title to liquor bought will not pass merely on payment of the price, and will only pass on delivery where no specific bottle of liquor is purchased, and where at the time of payment the liquor actually delivered had not been separated from the bulk, it being possible for the vendor at any time between separation and delivery to substitute another bottle for that finally delivered.
    3. Intoxicating liquors, § 67

      —what constitutes violation of Sunday closing law. In a prosecution for keeping a tippling house open on Sunday, the keeping of such a house. open on Sunday to serve intoxicating liquors therein held a violation of the statute, although it appeared that defendant received' no money for liquor delivered on that day and collected such money in advance on Saturday, it also appearing that the purchasers of the liquor paid for on Saturday were tippling on Sunday in defendant’s place with the liquor so paid for.
    Error to the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed December 27, 1915.

      A. L. Tompkins and George W. Field, for plaintiff in error.
    R. J. Dady, for defendant in error.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Ostrander kept a summer hotel at Fox Lake in Lake county and a 'licensed dramshop in connection therewith. He was convicted and fined under a count of an information which charged him with keeping open a tippling house in said county on Sunday, May 30, 1915, and brings that judgment to this court for review.

The witnesses for the People were two detectives from Chicago, and for the defendant, himself, his bartender and another. Said two detectives came to the hotel on the preceding Thursday and took rooms there and stayed until Monday. They drank whisky at Ostrander’s bar on Thursday, Friday and Saturday. The evidence of the witnesses for the People and for the defense differs in unimportant particulars; but the evidence of the witnesses for defendant establishes the main facts upon which the prosecution rely to support the conviction. On Saturday evening, Ostrander said to the two detectives that if they wished to get any liquor on Sunday they must pay for it that evening, as he did not take money for liquor on Sunday. They acquiesced and each paid the bartender a sum of money, the exact amount being in dispute and unimportant. They then left the saloon. After they had gone away, Ostrander got a bottle in which Jamaica ginger had been kept and put into it a certain quantity of whisky of the brand which these two detectives had been drinking, and evidently he put in the quantity that would be paid for by the money which they had paid to the bartender for that purpose. He placed this bottle on the bar afterwards, and told his bartender that if these men called for any whisky Sunday to serve them from that bottle. The saloon was open all day Sunday until ten o’clock at night. These detectives went there and called for whisky and were served with whisky from that bottle at least twice, if not more times, that day. They saw people there when they were there sitting at tables and drinking what had the appearance of beer and whisky; but they did not know what it was, in fact, that the other people drank, and defendant and his bartender denied that they served intoxicating liquor that day to any one other than the People’s witnesses. This was a tippling house, it was open all day Sunday and defendant’s bartender served whisky on either two or three occasions at least to these detectives. The sole defense is that when they paid for the whisky on Saturday night, it became their whisky without delivery, and therefore no whisky was sold in this barroom on that Sunday, and that what was delivered to these men was their own whisky.

We are not disposed to hold that the rule which prevails as to when the title to ordinary personal chattels passes has any bearing upon this case. The Supreme Court and this court have frequently disapproved of devices by which a color of legality was given to sales of liquor not authorized by law. The rule contended for does not apply to the facts of this case in any event. The detectives did not buy and pay for any specific bottle of liquor. They merely paid for whisky that was to be served to them on Sunday. No whisky had been separated from the bulk while they were in the saloon that Saturday night. After they had left' the saloon, defendant did separate and set apart some liquor for them, but it had not yet been delivered and they had not been advised of that separation, and he undoubtedly could have substituted any other bottle of liquor for it at his pleasure. If by what he did with these two men he evaded the requirement of the statute forbidding the keeping open of a tippling house on Sunday and escaped being liable for a violation of the statute, he could have made other contracts with other men of a similar character on the same Saturday night, and might have been busy all day Sunday delivering and serving the liquor so paid for the night before. A similar question was presented to the Court of Criminal Appeals of Texas in Wallis v. State, 78 S. W. 231, where, after stating tbe evidence, the court said:

“So, under the proof, the case resolves itself into the proposition whether a saloon keeper can make sales of his goods on Saturday, put them in the refrigerator, keeping them cool until Sunday, and then deliver said goods to his customers. If he can do it in one instance, he can do the same thing in another or other instances. And if he should make a sufficient number of sales for delivery on the next day, his house might be thus kept open the entire day to consummate deliveries. An essential part of the business of a saloon keeper is the keeping of his drinks cool,„ or the cooling of them with ice in the summer; and if he can make sales on Saturday, and keep the goods of the purchasers in his refrigerator for delivery on Sunday, he would be compelled to keep open for that purpose. Although he makes no sale on Sunday, and receives no money on Sunday for goods previously sold, still he has brought about the necessity of keeping open for the delivery of his wares. It is true the proof here shows only a specific instance of delivery, and that was through the broken glass of his back door; still he kept open for this purpose, and in pursuance of an agreement to deliver the goods on Sunday.”

The conviction of the defendant was there sustained. That case was decided January 13, 1904, and seems never to have been published in the reports of that State, but we are advised that its omission was accidental. According to the quotations in the brief for defendant in error, conviction has been sustained in a like case in Rex v. Clark, 27 Ont. L. Rep. 525, and 31 Am. & Eng. Ann. Cases, 637; and that case is based upon the English cases of Noblett v. Hopkinson, 2 K. B. 214; and Saunders v. Thorney, 78 L. T. (N. S.) 627. We have not access to those cases and merely cite them for the information of the bar. It is our view that by keeping his dramshop open on Sunday to serve intoxicating liquors therein, defendant was violating the statute in question, and that he is not relieved of responsibility by the fact that he collected the pay therefor in advance on Saturday, and did not receive the money therefor on Sunday. These men were tippling in his dramshop on Sunday with intoxicating drink which he there delivered to them, and he kept the place open for that purpose. The rulings on the instructions conformed to these views. The judgment is therefore affirmed.

Affirmed.