text:
    David O. Frambers et al. v. D. S. Risk et al.
    1. Money paid by mistake—Rule as to becoveby—When knowledge will defeat a becoveby.—If money is paid under the impression of the truth of a fact, which is untrue, it may be recovered back, however careless the party paying may have been in omitting to inquire into the fact. But if money is intentionally paid without reference to the truth or falsity of the fact, the party paying meaning to waive all inquiry into the fact; or if believing there is a mistake he might by investigation learn the state of facts more accurately, and declines so to do, and chooses to pay the money notwithstanding, he cannot recover it back.
    2. Hypothetical question.—The disagreement being as to the probable weight of a lot of hogs sold, the vendor called a witness, experienced as a farmer, and acquainted with the breed sold, and. asked this question, which was rejected by the court: “ Suppose a lot of fifty head of Magee hogs weighed on an average 160 pounds at the middle of April, and then put on a fine and abundant clover pasture and kept till the middle of September following, and all the time fed all the com, old and new, that they could eat, and also eight acres of matured oats, and well cared for and watered—what do you say such hogs with such care would gain in weight per day?” Held, that an answer should have been allowed, as it might have elicited evidence tending to show that the hogs were not weighed at too high a figure when sold, which was the real question at issue, there being also testimony tending to sustain the truth of the hypothesis of the question.
    Appeal from the Circuit Court of Champaign county; the lion. C. B. Smith, Judge, presiding.
    Mr. J. S. Lothkop, for appellants;
    that money paid with knowledge or with means of knowledge of the facts, cannot be recovered back, cited Mowatt v. Wright, 1 Wend. 359; Bisbane v. Darces, 5 Taunt. 144; Buckley v. Stuart, 1 Day, 133; Clark v. Dutcher, 9 Cow. 674; Supervisors v. Briggs, 2 Denio, 26; Marriot v. Hampton, 2 Smith’s Lead. Cas. 334; Bilbie v. Lumley, 2 East, 469; Dew v. Parsons, 2 B. & A. 562; 1 Chit. 295; West v. Houston, 4 Harr. 170; First Nat. Bank v. Haight, 55 Ill. 191.
    If the party paying has the means of knowledge at hand, and neglects to avail himself of them, he cannot recover: Clark v. Dutcher, 9 Cow. 681; Lucas v. Worsick, 1 M. & Rob. 293; Miles v. Duncan, 6 B. & C. 671; 9 D. & R. 731; Cox v. Prentice, 3 M. & S. 344; Gornery v. Bond, 3 M. & S. 378; West v. Houston, 4 Harr. 170.
    The payment was voluntary and cannot be recovered back: Falls v. City of Cairo, 48 Ill. 404; Chicago v. Stuart, 53 Ill. 83; Stover v. Mitchell, 45 Ill. 213; Union Building Association v. Chicago, 61 Ill. 439; Jones v. Wright, 71 Ill. 61.
    Mr. Thomas J. Smith, for appellees;
    that whenever one party has obtained money of another which in equity he ought not to retain, it may be recovered back, cited Taylor v. Taylor et al. 20 Ill. 650; Duncan et al. v. Niles, 32 Ill. 532; 15 Cal. 344; 41 N. H. 185; Eddie v. Eddie, 61 Ill. 134; Bradford v. City of Chicago, 25 Ill. 411; Trumbull v. Campbell, 3 Gilm. 502; Watson v. Woolverton, 41 Ill. 242.
   Lacey, J.

On September, A. D. 1874, appellees sold to appellants fortjr-nine head of fat hogs at the agreed price of $6.75 per hundred, to be paid for on delivery. On the 14th day of September, A. D. 1874, the hogs were taken to the stock yards of the Illinois Central R. R., at Tolono, by J. A. Risk, representing appellees, and by David O. Frambers, representing appellant, to be weighed, they both believing at the time that the scales were correct. The hogs were weighed on the scales by one Morgan, a disinterested party, they both standing by, looking on. When the hogs were weighed they were found to be, by those scales, 15,120.

When the hogs were weighed, J. A. Risk claimed at once that they did not weigh that amount. Some controversy ensued about the matter. J. A. Risk requested that Frambers should go to Chicago and they would have the hogs weighed there, and he, Risk, would pay his expenses. Frambers contended that the hogs were weighed correctly, and refused to go; and thereupon J. A. Risk paid him the sum of $200 on account of the hogs. On the next day, J. A. Risk and Frambers went to Champaign to see D. L. Risk about the matter. As soon as they informed Risk of what the hogs weighed, D. L. Risk at once said that they could not have weighed that much.” The appellees then requested appellant Frambers to go to Chicago with them and see the hogs weighed, but he refused and said the hogs should not be moved till he was paid. 'Appellees claimed and testified on the trial below, that while they believed the hogs did not weigh that much they had no way of disputing it. So they paid the appellants the balance of the money, some $800, and then shipped the hogs to Chicago.

Appellant Frambers testified in addition, that when each one of the Risks raised objection to the weight of the hogs, that he proposed to them to have the hogs weighed at Tolono, on other scales, there being other scales there; that D. L. Bisk said he was too busy, and upon Frambers refusing to go to Chicago, Bisk paid him the balance of the money.

The evidence shows that the appellees received the returns from Chicago, showing the hogs only weighed there 10,750 pounds; that after adding to that ten po.unds each for shrinkage, there was a difference between the Tolono weights and the Chicago weights of 3,880 pounds, and appellees claimed the right to recover back the sum of $'261.91 on account of mistake in the weight of the hogs. The cause having been submitted to the jury, they found a verdict for appellees for the sum of $247.81, upon which judgment was rendered. The court below overruled a motion for a new trial, and the cause was brought to this Court.

Upon the question as to whether there was really any mistake in the weight of the hogs at Tolono, there was a sharp contest, and the evidence was quite conflicting.

On the trial of the case below, appellants called as a witness John Loocks, and propounded to him this question: u Supposing a lot of fifty head of Magee hogs weighed on an average 160 pounds at the middle of April, and then put on a fine and abundant clover pasture, and kept till the middle of September following, and all the time fed all the corn, old and new, that they could eat, and also ■ eight acres of matured oats, and well cared for and watered, what do you say such hogs, with such care, would gain in weight per day?” This question was objected to by appellee’s counsel, and the objection sustained; the appellant excepting.

The witness had testified that he was acquainted with the Magee breed of hogs, and that he was a farmer and had experience in such matters. There was also evidence tending to sustain the truth of the hypothesis of the question. The refusal of the court to allow the witness to answer this question, and one of similar purport put to Frambers, which was also refused by the court, is assigned for error. ■

The court, should have allowed the questions to have been answered; if answered they might have elicited evidence that would have had a tendency to show that the hogs were not weighed at too high a figure at Tolono, which was directly in issue in this case. The jury should have been allowed to consider it and give it such weight as in their judgment it deserved.

On the trial below, the attorney for appellant asked the court to give the following instruction:

5. “ The court instructs the jury for the defendants, that if they believe from the evidence that the plaintiffs knew before they paid the defendants for the hogs in controversy, that said hogs had been incorrectly weighed, then in such case the plaintiffs are not entitled to recover the price so paid for said hogs, or any part thereof, back from the defendants, and in such case the jury will find for the defendants.”

The court refused to give the instruction as asked, but modified it by adding these words: “ But this would not be so if plaintiffs only believed a mistake had been made in weighing such hogs, and that they did not certainly know that a mistake had been made.” To the giving of this instruction so modified the defendants objected and excepted, and this is also assigned as error.

The instruction as originally drawn was unquestionably the law. Where payment is made with a full knowledge of the facts in the case, it can not be recovered back by the party making it. But it is laid down in the law as a general rule, that if money is paid under the impression of the truth of a fact which is untrue, it may be recovered back, however careless the party paying may have been, in omitting to use due diligence to-inquire into the fact. Story on Sales, sec. 146; Kelly v. Solari,. 9 M. & Wellsby, 59.

“But if money is intentionally paid without reference to the truth or falsehood of the fact, the plaintiff, meaning to waive all inquiry into it, and that the person receiving shall have the money at all events, whether the fact be true or false, the latter-is certainly entitled to retain it.” See case last cited,p. 59. Lord Olinger, C. B., says in the same case: “ There may also be cases in which, he might by investigation learn the state of facts more accurately. If he declines to do so and chooses to pay the money notwithstanding, in that case there can be no doubt he is equally bound.” Ib. last case above cited, p. 57.

After full consideration of all the facts in this case and the law bearing thereon, we think that under the peculiar facts and circumstances, that the two last propositions of law ought to apply in this case. That is, if certain facts are proven. If the appellees believed, although they did not certainly know, that at the time the hogs were weighed at Tolono, there was a mistake in the weights, and appellants proposed to have the hogs weighed on other scales, which were in the same place and have the matter fully tested, and refused to let the hogs go without the test or the payment of the contract price according to the Tolono weights, and that appellees rather than submit to such test chose to pay the money, we think in such case the appellees ought not to be allowed to recover the money paid under such circumstances. There was evidence to show the above state of facts existed.

If the jury had found this state of facts to exist they should have found for the appellants. Upon principles of justice, if a party be about to pay money on a supposed state of facts, and he apprehends such facts do not exist and makes his objection to the payment on account of mistake, and the party about to receive the money proposes to have the matter tested and the truth ascertained, and the vendee refuses to apply the tests at hand and chooses to pay the money notwithstanding, he ought to be forever barred from recovering it back; if he refuses to correct the matter himself, having an opportunity, he ought not afterwards ask the courts to do it for him.

The modification by the court excluded such an issue as this from the jury. It told them in substance, that if money had been paid on account of mistake in the weight of the hogs, •even if appellees believed but did not certainly know, that at the time of the payment there was a mistake, then they should recover.

The above modification directs a recovery even though appellees paid the money without reference to any mistake in the weights, and intended to accept the weights as a final settlement, waiving all errors. Certainly the evidence tends to prove such was the intention.

The jury should have considered this question as an important issue in the case; in determining the rights of the parties, as well as the other issues above mentioned.

For these reasons the cause is reversed and remanded.

¡Reversed and remanded.


source: Caselaw Access Project

author: Davis, J. Lacey, J.,

license: Public Domain

text:
    Chicago & Alton Railroad Co. v. Richard Langley.
    Contbibutoby negligence. — A plaintiff cannot recover for injuries received through the defendant’s negligence, where his own negligence has contributed to such injuries, unless his negligence was slight and that of the delendant gross in comparison.
    Appeal from the Circuit Court of Mason county; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. Deabbobn & Campbell, for apj)ellant;
    that the plaintiff did not use all reasonable means in his power to avoid the accident, and is not entitled to a recovery, cited C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; C. & R. I. R. R. Co. v. McKean, 40 Ill. 218; C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; McGrath v. N. Y. C. & H. R. R. Co. 59 N. Y. 468; Penn. R. R. Co. v. Beall, 73 Pa. St. 504; T. W. & W. R. R. Co. v. Miller, 76 Ill. 278; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; C. B. & Q. R. R. Co. v. Lee, 60 Ill. 501; C. & A. R. R. Co. v. Jacobs, 63 Ill. 178; T. P. & W. R. R. Co. v. Bray, 57 Ill. 514; T. P. & W. R. R. Co. v. Riley, 47 Ill. 514; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; G. & C. U. R. R. Co. v. Dill, 22 Ill. 271; C. & R. I. R. R. Co. v. Still, 19 Ill. 499; C. & N. W. R. R. Co. v. Sweeney, 52 Ill. 325; T. W. & W. R’y Co. v. Jones, 76 Ill. 311; G. & C. U. R. R. Co. v. Jacobs, 20 Ill. 478; Evansville & C. R. R. Co. v. Smith, 13 Ind. 120; B. & O. R. R. Co. v. Fitzpatrick, 13 Md. 32; Langhoff v. M. & P. R. R. Co. 23 Wis. 43; Allyn v. B. & A. R. R. Co. 105 Mass. 77; Artz v. C. R. I. & P. R. R. Co. 34 Ia. 153; Dodge v. B. C. R. & M. R. R. Co. 34 Ia. 276; L. L. & G. R. R. Co. v. Rice, 10 Kan. 426; Van Schaick v. H. R. R. R. Co. 43 N. Y. 527; Lewis v. B. & O. R. R. Co. 38 Md. 588; Gahogan v. B. & L. R. R. Co. 1 Allen, 187; Central R. R. Co. v. Dixon, 42 Ga. 327; Harlam v. St. L. K. Co. & N. R’y Co. 5 Cent. Law Jour. No. 10.
    The burden of proof is upon plaintiff to show that he was exercising ordinary care and diligence at the time of the injury: C. B. & Q. R. R. Co. v. Hazard, 26 Ill. 373; C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; A. B. R. R. Co. v. Grimes, 13 Ill. 548; C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 585; Ill. Cent. R. R. Co. v. Simmons, 38 Ill. 242; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; C. & N. W. R. R. Co. v. Sweeney, 52 Ill. 325; C. B. &. Q. R. R. Co. v. Van Patten, 64 Ill. 510; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; C. &. A. R. R. Co. v. Beeker, 76 Ill. 25; Ill Cent. R. R. Co. v. Baches, 55 Ill. 379.
    Messrs. Fullebton & Wallace, for appellee;
    that the railroad company had no right to obstruct the crossing, and being-in default in that respect, it is a negligence for the results of which they are liable, cited Rev. Stat. 1874, 810; Great West. R. R. Co. v. Decatur, 33 Ill. 381; The People v. C. & A. R. R. Co. 67 Ill. 118; St. L. A. & T. H. R. R. Co. v. Todd, 36 Ill. 409; St. L. J. & C. R. R. Co. v. Terhune, 50 Ill, 151; G. & C. U. R. R. Co. v. Crawford, 25 Ill. 529; C. & A. R. R. Co. v. Henderson, 66 Ill. 494; C. B. & Q. R. Co. v. Lee, 68 Ill. 576; G. & C. U. R. R. Co. v. Dill, 22 Ill. 271.
    Hnless the verdict is manifestly against the evidence it will not be disturbed: Hall v. Lincoln, 46 Ill. 52.
   Davis, J.

This action was brought by appellee to recover damages for personal injuries sustained by him in attempting to cross the track of the railroad, by climbing over the bumpers of two freight cars, chained together, in a train then being made up, on the railroad of appellant.

The accident happened on the 25th of August, 1875, between five and six o’clock in the afternoon, in the town of Matrona, a small village on the prairie, consisting of ten or twelve houses.

The train ran into the village and stopped on the main track of the road, not far from the platform directly over the principal street crossing of the village, where the freight cars, after the engine was detached, remained some thirty minutes, while the locomotive was engaged in switching cars from the side to the main track, and attaching them to the train.

Shortly after the train arrived, appellee approached the crossing afoot, with the intention of passing over the track to the other side of the railroad. Finding the crossing obstructed by the train, he remained there some fifteen or twenty minutes, observing what was transpiring and conversing with others who were there with teams and on foot, waiting to pass over. The train not moving out, appellee attempted to pass over to the other side of the track,.by climbing over the bumpers of the two cars standing across the street crossing, and while he was in the act of springing up, the locomotive backed down some cars to fasten them to the train, and he was caught between the two cars and seriously injured.

The ground where the accident happened was nearly level with the surrounding country, and was open on both sides of the railroad. The road bed was about a foot higher than the surrounding surface, and was made by the dirt thrown up from the ditches on each side. The locomotive and train were in plain view of those who were present while appellee was waiting at the crossing. The locomotive was on the north end of the train and was backing down on the main track when appellee started to cross over, but its location was not then noticed by him. The crossing where appellee was injured was at the distance of the length of five cars from the south or rear end, and of twelve cars from the front end of the train. There were two other street crossings where teams crossed, one' north and the other south, about one hundred yards from the place of the accident. There was also a street on each side of the railroad track, outside of the right of way, and the ground on both sides was open and unoccupied, and used by the public in passing and repassing.

On these facts, as shown by the evidence, given principally by the appellee’s witnesses, a verdict and judgment was rendered against the appellant, to reverse which this appeal was taken.

Appellant was guilty of some degree of negligence in permitting the train to remain an obstruction to the street crossing over ten minutes, and. for that violation of law a remedy is given by the statute.

But that did not absolve appellee from the exercise of that reasonable care and prudence which should govern every person similarly situated. There was no urgent necessity shown for appellee to cross the track at risk of life or limb, and if his business or pleasure required his presence on the other side, a very little exertion on his part would have enabled him to accomplish his purpose without risk. The locomotive was detached from the train leaving the cars standing motionless, with the rear end of the train at a distance of not exceeding one hundred and fifty feet from where appellee desired to cross, and nothing whatever in the way to prevent him from walking that distance and crossing the track in safety at the end of the train. It seems almost incomprehensible that a human being, endowed with reason, would run the risk of the loss of life which might result from an attempt to pass between two cars of a freight train, under the circumstances attending this case, when all possible danger could be avoided by the exercise of so slight a degree of prudence and care. The act of appellee was one of great danger and recklessness, of which he was probably unconscious at the time.

The rule is well established that a plaintiff cannot recover for injuries received through the defendant’s negligence where his own negligence has contributed to such injuries, unless his negligence was slight and that of the defendant gross when compared with each other.

Conceding that appellant was guilty of negligence in obstructing the street crossing, the negligence of the appellee was hot slight when compared with that of appellant, and therefore he cannot recover.

The judgment below must be reversed.

Judgment reversed.

Lacey, J.,

having presided on the trial of this case below, took no part on the hearing.


author: Higbee, P. J.

text:
    Charles W. Israel v. The Town of Whitehall.
    Practice in Appellate Court—Filins abstract—Rules .—A mere index to the record, referring to the pages containing evidence, instructions, etc., is not such an abstract of the record as is required by the rules of this court, and appellant failing to file an abstract of the record in accordance with the rules of court, the judgment below is affirmed.
    Appeal from the Circuit Court of Green county.
   Higbee, P. J.

Pule 22, adopted for the government of this court, provides that “ in all cases, the party bringing a cause into this court shall furnish a complete abstract or abridgment of the record therein, referring to the appropriate pages of the record by numerals on the margins, and shall cause such abstract to be printed in a neat and workmanlike manner, with small pica type and leaded lines, on one side only, leaving a margin of at least two inches in width on the left hand side of each sheet. Five copies of such printed abstract in each case— one for each of the judges, one for the defendant in error or appellee, and one to he filed with the record.”

Pule 28 provides that all cases on the docket shall be called at the rate of twenty cases per day; and Pule 29 that the call commence on the second Tuesday of the term, and that plaintiff in error or appellant must file his abstracts and briefs in the office of the clerk six days before the day when the case stands subject to call, and in all cases, in the event that either the brief or abstract is not filed within the prescribed time, the judgment or decree of the court below will, on the call of the docket, he affirmed.

The present term of court commenced on the 20th day of November, and these rules were announced on that day. The call of the docket commenced on the 27th, and under the rule this case stood for call on the 28th. The abstract was required to he filed on the 22d, six days before the case stood subject to call. On the 28th, the appellant being in default appeared in court by his attorney and asked and obtained leave of court to file his abstracts instanter, and under such leave placed on file a printed index to the record and calls it an abstract. It does not contain a single word of the record, the evidence or the instructions of the court below, but is a simple index to the record; contains references to the pages of the record thus: Page 1. Copy of the summons. Page 2. Service of same. Page 9. Copy of town ordinance. Page—. Bill of exceptions. Page 11. Testimony of Byron Terhern. Page 15. Evidence of defendant and instructions given, &e.

The case is now, on the 3d day of December, called for trial and the appellee asks to have the judgment below affirmed for want of abstracts.

"We also find on trial a brief of appellant in which he insists that the judgments should be reversed because it is against the evidence and because the Court gave and refused divers instructions which he says are contained in the record, but neither the evidence nor instructions are copied into his abstract or brief. The court, however, is referred to the page of the original record for them.

This, in our opinion, is such a failure to comply with the rules of the court -as to make it the duty of the court to affirm the judgment below for want of an abstract.

If this practice is to prevail in this case, it must be allowed in all other similar cases, and the rules will be evaded and their object wholly defeated.

The judgment of the court below is affirmed at'the cost of appellant.

J udgment affirmed.


text:
    William H. Broadwell v. Horace Chapin et al.
    1. Printing- delinquent tax-list—Pees—Pebsonal liability ob collectob.—The sheriff of.a county acting ex-officio as collector, is not personally liable for the payment of printers’ fees in publishing the delinquent tax-list. Among his official duties he is required to make out and cause to be published a delinquent tax-list, and the printer who receives it for publication knows it to be an official act; to be paid for at the rate and in the manner prescribed bylaw.
    2. Not liable except by expbess agreement.—Where a public officer contracts in good faith with parties having knowledge of the extent of his authority, he will not become personally liable unless the intent to incur a personal liability is clearly expressed.
    Semble.—That if such officer could be made personally liable in an action of assumpsit, a demand should be made while he is in office and before he has made final settlement with the county, so that he could claim the credit on such settlement.
    Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Morrison, Whitlock & Lippincott, for appellant;
    that appellant was acting as a public officer, and incurred, no personal liability, cited Mann et al. v. Richardson, 66 Ill. 481; Duncan, et al. v. Niles, 32 Ill. 532; Parks v. Ross, 11 How. 375; Sandburn v. Neal, 4 Minn. 126.
    Messrs. Epler & Callow, for appellees;
    cited Bev. Stat. Chap. 120, §187.
   Higbee, P. J.

It appears by the record in this case that appellant was sheriff and ex-officio collector of public revenue in Morgan county for the year 1874, and that appellees were at that time the publishers of the Jacksonville Journal, published in said county.

On the 1st of October, appellant sent to the office of appellees for publication the delinquent tax-list, which was inserted in the paper of that date, but owing to a mistake of the collector in making out the list, it became necessary to publish it again, which was done at the request of appellant in the next week’s issue of said paper, omitting therefrom certain tracts and lots on which the taxes had been paid after the first insertion, and changing the time in the notice when application would be made for judgment. The printer’s fees fixed by law,, for publishing the list and notice—twenty cents for each tract of land and ten cents for each town lot—amounted to $140.40 for the first insertion, and $105.00 for the second.

Appellant paid to appellees the $140.40 for the first list, and took their receipt therefor in full, and applied for and obtained judgment against the lands and lots in the second list mentioned.

The record does not show whether the lands and lots against which judgment was rendered were sold or forfeited and struck off to the State, or that the collector ever received the fees allowed by law, or any fees for publishing the same.

Appellees, not having received the $105.00 for the last publication in August, 1875, and appellant’s term of office having expired, commenced this suit in assumpsit in the County Court of said county to recover the same, and appealed to the Circuit Court, where a judgment was rendered in favor of plaintiffs helow, and the case is now appealed to this court, and the judgment of the Circuit Court assigned for error. On the trial below, it was admitted by appellees that there was no express contract between the parties by which appellant had become personally liable for the service rendered, and that the suit was brought to recover on an implied contract.

The revenue law in force in 1874, see Sec. 182, Eev. Stat. 1874, p. 843, makes it the duty of the collector to publish the delinquent tax list, together with a notice of his intended application for a judgment, “in >a newspaper published in his county, if any such there* be, and if there be no such paper printed in his county, then in the nearest newspaper in this State. * * * When the publisher of any paper that may have been selected by the collector, shall be unable or unwilling to publish such advertisement, the collector shall select some other newspaper, having due regard to the circulation of such paper.”

“ Sec. 186. The printer, publisher or financial officer or agent of the newspaper publishing the list of delinquent lands and lots, shall transmit by mail, or other safe conveyance, to the collector four copies of the paper containing said list, to one of which he shall attach his certificate under oath. * * * Upon receipt of said papers and a demand being made, the collector shall pay to the printer the amount of the fees allowed by law for publishing said ■ list and notice, and it shall be his duty to file one copy of said paper in his office, and deliver one copy to the auditor, and one copy to the State treasurer, who shall file and safely preserve them in their respective offices.”

“ Seo. 187. In all cases where there is an error in the advertised list, the fault thereof being the printer’s, which prevents judgment from being obtained against any tract or lots, or against all of said list at the time stated in the advertisement that judgment will be applied for, the printer shall lose the compensation allowed by this act for such erroneous tracts or lots, or entire list as the case may be.”

“ Seo. 232. If any lands or lots shall be forfeited to the State for taxes or special assessments, the collector shall be entitled to a credit in his final settlement, for the amount of the several taxes and special assessments thereon, the county to allow the amount of printer’s fees thereon and be entitled to said fees so allowed when collected.” ,

There is evidence in the record tending to show a demand for the money sued for, but it fails to show that such demand was made by appellees at the time they delivered the delinquent lists to appellant, or at any time before he went out of office and settled up his accounts. Appellant testifies that he had never received any money with which these fees could be legally paid.

If appellant could be held personally liable to appellees in this form of action for their fees, a demand should be made while he is in office, and before he has made final settlement with the county, so that he could claim the credit on such settlement. But we do not think him personally • liable in an action of assumpsit in any event. The collector is a public officer, elected by the people, and required to give bond for the faithful discharge of the duties of his office, which are prescribed by law. He is the collector and custodian of the public revenues, and required to keep accurate accounts of all moneys received and paid out, and the particular funds to which they ■belong, for which he receives such compensation as is allowed by law.

Among other duties he is required-to make out and cause to ibe published the delinquent list, and the printer or publisher •who receives it knows it to be an official act, to be paid for at a rate and in the manner prescribed by law.

The provision of Sec. 186 which requires the collector upon receiving the lists from the printer to pay him his fees, requires the performance of an official act, and does not make it his duty, if there are no public moneys in his hands, to pay it out of his individual money. He is to charge it up to the county, and give credit to the same fund for all printer’s fees afterwards collected, and should he fail to receive an equal amount, the county allows him the difference in the final settlement.

It is an established rule of law that an agent who contracts in the name of his principal is not liable to a suit on his contract, much -less a public officer acting in his official capacity. Whenever his contract or- engagement is connected with a subject fairly within the scope of his authority, it shall be intended to have been made officially and in his public character, unless the contrary appears by satisfactory evidence of an express agreement to be personally liable. Parks v. Boss, 11 How. 362. In the case of Mann et al. v. Richardson, 66 Ill. 481, our Supreme Court held that where an officer or public agent contracts in good faith with parties having knowledge of the extent of his authority, he will not become individually liable unless the intent to incur personal liability is clearly expressed, and this although it should be found that through ignorance of the law he may have exceeded his authority.

To the same effect is the case of Duncan et al. v. Niles, 32 Ill. 532; Sanborn v. Neal et al. 4 Wis. 126; 10 Conn. 329; 22 Conn. 379; 12. Wend. 179.

The question whether appellees ought not to receive compensation, or who shall bear the loss if any is ultimately sustained, is not presented by this record: The only question now presented is whether upon the case made the law implies a personal promise to pay for the printing by appellant, upon which an action of assumpsit will lie, and we are satisfied that it does not. If the officer has been guilty of any misfeasance or nonfeasance in office to the injury of appellees, the law undoubtedly affords a remedy for the wrongful act, but so long as he acts within the scope of his authority he is entitled to the protection the law gives him. For these reasons the cause is reversed.

Judgment reversed.

Davis, J., dissenting.


author: Davis, J.

text:
    The Wabash Railway Company v. Charles Brown, Adm’r.
    Railroads—Liability to employes for failing to keep a proper fence—Evidence.—In an action against a railroad company for an injury caused by the failure of the company to maintain a proper fence along its line, whereby cattle escaped and g-otupon the track, it is necessary to show that the cattle got upon the track through the fence at a place where it was defective and insufficient to prevent stock from getting on the road. It is not sufficient to show that the fence on each side of the road was generally poor and defective.

      Qiuere: Whether there exists a right of recovery by employes against railroad companies for a failure to fence their land as required by the statute.
    Appeal from the Circuit Court of Sangamon county; the Hbn. H. M. Yandeveer, Judge, presiding.
    Messrs. Hat, Green & Littler, for appellant;
    as to the obligations assumed by the purchasers of the old company, cited St. Louis R. R. Co. v. Miller, 43 Ill. 199.
    That proof of the condition of the fence at the point where the cattle broke through, is material: Ill. Cent. R. R. Co. v. Swearingen, 33 Ill. 289; Same case, 47 Ill. 206; Great Western R. R. Co. v. Hawks, 36 Ill. 282.
    Mr. H. M. Broadwell and Mr. C. W. Brown, for appellee;
    as to the extent of the obligations assumed by the purchase of the former road, cited 2 Story’s Eq. Jur. § 1244.
    A court of chancery having obtained jurisdiction, retains it for all purposes: Morgan v. Roberts, 38 Ill. 65; Meeker v. Meeker, 75 Ill, 260; 1 Story’s Eq. Jur. § 64.
    A receiver may be sued for a tort, without asking leave of the court appointing him: Allen v. Railroad, 42 Iowa, 683; Kinney v. Crocker, 18 Wis. 74; Blumenthal v. Brainerd, 38 Vt. 402; Camp v. Barney, 11 N. Y. 373; Murphy v. Holbrook, 20 Ohio St. 137.
    The deceased had a right to presuifte that the road and its accessories would he kept in a safe condition, and is not presumed to know of defects in the road or its appurtenances: C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; Dale v. Railroad, 63 Mo. 455.
    Against the objection that the decree in this case made no provision for a redemption from a sale: Boestor v. Byrne, 72 Ill. 466.
   Davis, J.

This was a bill in chancery, filed by appellee against appellant, to recover damages for the death of Burns Boberts.

The bill charges that on the 10th day of July, 1875, Boberts was fireman on an engine operated by J. D. Cox, receiver of the Toledo Wabash and Western Bail way; that while Boberts was so acting, the engine ivas overturned and by means thereof Boberts lost his life; that said accident occurred by reason of said engine running against some cattle that were lying on the track of the railroad; that the running of the engine against said cattle was not the fault of Boberts, but, on the contrary, he was carefully performing his duty; that the cattle got on the railroad through the negligence of said receiver who was operating the road, and who was negligent in this, that he failed to keep a lawful fence along the track of said road, such as the law required—sufficient to keep stock from getting on the road.

That said Cox, knowingly and willfully allowed the fences along said road to become so frail and insufficient as not to be secure against stock, and to remain in a frail condition about two months previous to the accident, and that the cattle got on said road through the poor and insufficient fence. That Boberts left surviving him a widowed mother, who was depending on him for support, who is left destitute by his death. That in proceedings commenced against the Toledo, Wabash and Western Bailway Company, in which said Cox was appointed receiver, a decree was rendered for the sale of said railroad, and on the 10th of June, 1876, the same was sold to John W. Ellis, A. M. White, J. T. Martin, Gr. J. Sweney and H. A.Y. Post, and the same and all its property and franchises were conveyed to the purchasers, who afterwards conveyed said railroad, equipments, etc. to the appellants, who accepted the same and took possession of the road under said conveyance and subject to all its provisions. That in such conveyance it is expressly provided, “ that the said estate and interest are hereby charged with, and shall pass by virtue of these presents, subject to the payment of all liabilities incurred in respect to the said railway, or its business, by the said Jacob D. Cox, as receiver, during the legal proceeding mentioned.” The bill further charges that by the provisions of said deed, and the acceptance thereof by said appellant, it is chargeable in equity with a lien for the payment of appellee’s claim. Answers were filed by appellant and Jacob D. Cox, receiver, and on the hearing the court found that Roberts came to his death by the negligence of Jacob I). Cox in the operation of the railroad, found the damages of the appellee to be $2,500.00, and decreed that appellant should pay such sum within thirty days, or a sale by Master. To reverse this decree appellant brings this appeal.

The only question we deem necessary to pass upon is whether the evidence given on the hearing sustains the decree of the court below.

To sustain the finding, the testimony should show that the cattle got upon the track through the fence at a place where it was defective and insufficient to prevent stock from getting on the road. It will not do to show that the fence on each side of the road was generally poor and defective. If the fence where the cattle entered upon the track was in fact in good repair and sufficient to prevent stock from getting thereon, then it was through no fault or negligence of the receiver that the cattle got upon the track, and he should not be held responsible for any injury occasioned thereby.

The evidence introduced by appellee as to the condition of the fence where the cattle got upon the track is uncertain and unsatisfactory, and leaves the mind in doubt whether the witnesses testifying knew where the cattle entered upon the track, and what the condition of the fence was at that place.

Eewland swears that he knew the condition of the fence along the sides of the road where said accident occurred would not prevent stock from getting upon the track of said road; that the fence on either side of the road was not sufficient to turn stock, and stock could get on to said railroad track, the fence being of little or not any obstruction. Wilder’s testimony is almost the same as Hewland’s, with the addition that the fence was in poor condition for some distance where the accident occurred. Campbell testified substantially as the others did. Lamb’s testimony is similar to Hewland’s, with the addition that the cattle got on said road through the fence of said road, and that said fence was not a lawful fence, and not sufficient to turn cattle and other stock, and that the fences on either side of said road were not lawful fences. On the other side the testimony for appellant was definite, certain and to the point, and tended very strongly to show that at the time of the accident the fence had been repaired, was then in good condition, and had been broken down by the cattle in breaking out of the field in which they had been confined. English testified that he examined the fence, saw a place where stock got out of the field and on the track; it was a four-board fence; measured it; it was four feet eight inches high on the inside; outside not quite so high, owing to the embankment; recollection is that there were two new boards at the top; the others were old boards; the top board was broken down where the cattle got out the field; not merely the nail out; the board itself was broken crosswise over the edge of the other. The posts at that place were old and had the appearance of having been recently re-set; know so by shaking them; found them solid in the ground; boards at the bottom are old; at the top new boards; fence indicated that it had been repaired lately; the hoard was broken down, not pulled off; it would appear the stock in getting over had mounted the fence and broken it down, rather than gone through it; crushed it down; there was hair that the cattle raked off on the board.

Melville testified: Know where a gap was made through the fence at time of accident. Where the cattle got through the fence was about one hundred and fifty yards west of where the engine went off the track. Had passed over the road the day before. After the accident, was there by half past five or six the next morning. There was no gap on either side when there first. The next morning first went to the wreck with a physician; then went to where the cattle got in; found five cattle dead; then came back to examine and see where stock got in; found a gap in the corner of the fence in Jews-berry’s pasture; he had a calf lot; left a gap between the railroad fence and this calf lot about a panel. On through this he had a gate into another field; then a gate round. Came across the railroad into the barnyard. Eight up in this corner by the gate was where the cattle got over the fence. Tracked the cattle to the place where he found the cattle themselves. The fence was a four-plank fence. Where the cattle got over there were two new boards. Eecently Mr. Ball, the carpenter, had gone through and patched up the holes in the fence. At that point he put in two new planks. It appears the cattle had jumped on the fence. The nails were holding on and the planks were broken. Plank where the post was was broken off from the post on the other side.

Means testified: Know the fence in question. Worked on road two months before accident. Passed along the road three or four times a day. Was not there after accident occurred. It was a moderately good fence—a four-board fence.

Stephens testified: Work on the section under Melville on the Wabash road. Have helped to repair the fence for three or four years now. Eemember the wreck when Eoberts was killed. Part of the fence along Jewsbeiry’s farm was good; part n ot good. Along in the hollow where the fence was broken was probably the best part of the fence. Fence part good and part not good. Had been built for some time. Should think that point was the best part of the fence. It is fenced all the way to Jacksonville. Did not make a personal examination of where cattle got in. Was laboring at the wreck. Others made the examination. My recollection is, it was the best part of the fence. There might be a few places where the cattle could get through up east there. Do not mean they could get through without breaking the fence.

This was all the evidence offered, and we do not think it proves the receiver to have been guilty of any negligence, and it therefore fails to.sustain the decree of the court below, and it must be reversed.

Without deciding the point we cannot refrain from expressing a doubt as to the right of recovery by employes against railroad companies for a failure to fence their roads as required by the statute. In Redfield on the law of Railways, Yol. 1, page 490, it is held that railways are not bound to maintain fences upon their roads so as to make them liable to their own servants for injuries happening in consequence of the want of such fences. And where the statute makes them liable for all injuries done to cattle, etc., by their agents or instruments until .they fence their road, the liability extends only to the owners of such cattle or other animals, and this liability is the only one incurred. It was so held in Langlois v. Buffalo and Rochester Railway, 19 Barbour, 364.

Reversed and remanded.


author: Lacey, J.

text:
    George C. Glassford v. Thomas B. Dorsey et al.
    1. Revenue law—Increasing assessment after return made.—As the law stood prior to 1873, an assessor had no right after having once made an assessment, to raise it, without notice to the party assessed, and if he did so it was fraudulent and void, and a bill in equity would lie to restrain the collection of a tax levied on it. Nor has he any such power under the present revenue law.
    2. Notice of increase should be given.—After an assessment has once been made a party has the right to rely upon it, and he ought not to be compelled to look after the matter further unless he receive notice from the proper authority of a'motion to raise his assessment. The town or county board may lower it but cannot raise it without notice.
    Appeal from the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding.
    Hr. Wan. Don Haus, for appellant;
    contending that an assessor has no power to increase an assessment once made without notice, cited Cleghorn v. Postlewaite, 43 Ill. 428; McConkey v. Smith, 73 Ill. 313; Darling v. Gunn, 50 Ill. 424; First Nat. Bank Shawneetown v. Cook et al. 77 Ill. 622.
    Ho complaint that another’s property has been assessed too low shall be acted upon without notice to the person assessed: Bev. Stat. 1877, 828.
    All the cases decided by the Supreme Court under Sec. 191 of the revenue law since its amendment have been on application for judgment for delinquent taxes, and in none of them has the question or proof of fraud been made: Hess v. The People, 9 Chicago Legal News, 215; People v. Sherman, 83 Ill. 165; Beers v. The People, 83 Ill. 488.
    A court of chancery has jurisdiction to restrain the collection of a tax on the ground of fraud; Cleghorn v. Postlewaite, 43 Ill. 428; McConkey v. Smith, 73 Ill. 313; Darling v. Gunn, 50 Ill. 424; First Nat. Bank Shawneetown v. Cook, 77 Ill. 622.
    Mr. B. S. Prettyman, for appellee;
    that it was the duty of the assessor, on finding the property was assessed too low, to assess it at its fair value, cited Rev. Stat. 1874, 871; Gross’ Stat. 1868, 573; Cleghorn v. Postlewaite, 43 Ill. 428; First Nat. Bank Shawneetown v. Cook, 77 Ill. 622.
    Under the law of 1874 the assessor was not required to give notice increasing an assessment; and it was -the duty of the assessed to apply to the board of review for a correction: Rev. Stat. 1874, 873.
    An informality in assessment does not vitiate it, or the tax extended upon it: Bev. Stat. 1874, 904.
    Unless something in defense to affect the substantial justice of the tax is shown, its collection will be enforced: Chiniquy v. The People, 78 Ill. 570; Purrington v. The People, 79 Ill. 11; Thatcher v. The People, 79 Ill. 597; Buck v. The People, 78 Ill. 560; Republic Ins. Co. v. Pollak, 75 Ill. 292.
   Lacey, J.

This was a bill in equity, filed by the appellant against the appellee, Dorsey, who was tax collector for the town of Pekin, Tazewell county, Illinois, to enjoin him from collecting a tax of $628.59, extended on the tax books of that town for the year 1877, and charged as personal property tax for the year 1875.

It appears that one Stout was assessor for Pekin town for the year 1875. That he called on appellant to assess his property, and gave him a blank statement, which was immediately filled out and returned to Stout, duly signed by appellant, and contained what appellant claimed to be all his personal property, amounting to some $1,100.

This list was received and accepted by Stout without objection, and the amount was by him entered on his books as the assessment of all -the personal property of appellant, for the year 1875.

Appellant then left the State on a visit, and was absent until July 1st, A. D. 1875, when he returned to Pekin. The township board of review met on the 28th day of June, and adjourned on the 30th day of the same month, in the year 1875. On the 5th day of July, A. D. 1875, without any notice to appellant, the assessor, Stout, ordered his clerk to raise appellant’s assessment $15,000, making his whole assessment $16,100 instead of $1,100. On the 12th day of July, the county board for revising assessments met, and no objection was then made by appellant to his assessment. But in January, A. D. 1876, the tax having been extended on the assessment so raised, and the collector’s book put into the hands of the collector, appellant claims, and we think such claim is sustained by the proof, that he then discovered for the first time that his assessment had been raised, and that on the amount of the raised assessment there was an additional tax levied of $628.59.

At the February term of the board of supervisors following, appellant made complaint before the board of this increased assessment, and asked to have the erroneous tax remitted, which the board granted, and passed a resolution remitting the tax. When the taxes for year 1877 were extended, the county clerk extended' this back tax of 1875 on personal property of $628.59 against appellant. When the books came into the hands of the collector, he proceeded to collect this tax; appellant paid all other taxes levied against him except this, and brought his suit in equity in the Tazewell Circuit Court, setting up the above facts, and alleging that the collector, Stout, fraudulently raised his assessment, and that the act of Stout in raising his assessment in the manner in which he did, as well as the acts of Shertliff, the county clerk, and Dorsey, the collector, were fraudulent, unjust and revengeful.

He avers also that at no time in the year 1875 was he liable for assessment for more than the sum listed by him for that year; that he was ignorant of the fraudulent assessment for the year 1875 until in January of the year 1876.

Hpon a hearing of the cause, the court below dismissed the bill, and assessed damages on the injunction bond. Appellant now brings the cause .to this court, and assigns' for error the action of the court below.

. It appears from all the testimony that appellant had listed all his property to Stout when he was called upon, and that some outside influence or some improper pressure had been brought to bear against Stout, which caused him improperly and without an honest belief that- appellant was justly liable to be assessed an additional sum, to raise the assessment §15,000.

This was done in a secret manner and without notice to appellant.

Stout told M. D. Beecher at the time he, as a member of the committee raised by the board of supervisors to examine into this assessment, that he, Stout, had raised appellant’s assessment $15,000 without giving appellant notice; that appellant ought not to pay the tax, because he, Stout, was forced into raising the assessment.

Appellant testified that Stout, at the time the $628.59 tax was first demanded of him, told appellant that he ought not to pay it; it was unjust, and he would not have raised it, but Kellogg had sued him as assessor.

We are aware that an effort was made to show that appellant did not give in to the assessor all his property, but that he held a large chattel mortgage on some cattle, which he should have listed; but we are satisfied that the amount of the chattel mortgage did not belong to appellant, but to another party, and that appellant was not liable to be assessed for it. '

As the law stood prior to the year A. D. 1873, appellant had the unquestioned right to maintain this bill. An assessor had no right after he had once made an assessment to raise it without notice to the party assessed, and if he did so it was fraudulent and void, and a hill in equity would lie to restrain the collection of the tax levied on it. Cleghorn v. Postlewaite, 43 Ill. page 428; McConkey v. Smith, 73 Ill. 313; Darling v. Gunn, 50 Ill. 424; First National Bank of Shawneetown v. Cook et al. 77 Ill. 622.

It is claimed by counsel for appellee that the statute has been so changed by the act of 1873, that the assessor may, after he has once made an assessment, change it at will without further notice to the party assessed. We do not think this jmsition is tenable.

The statute now provides that the assessor shall assess in the manner following:

“ He shall call at the office or place of doing business, or residence of each person required by this act to list pro¡3erty, and list his name, and shall require such person to make a correct statement of his taxable property, in accordance with the provisions of this act; and the person listing the property shall enter a true and correct statement of such property in the form prescribed by this act, which shall be signed and sworn to, to the extent required by this act, by the person listing the property, and delivered to the assessor, and the assessor shall thereupon assess the value of such property and enter the same in his books. Provided if any property is listed or assessed on or after the 1st day of July, and before the return of the assessor’s books, the same shall be as legal and binding as if listed and assessed before that time.” E. S. 1874, page 870, Sec. 78.

Sec. 79 provides for the assessor notifying the taxpayer (in case he is sick or absent when the assessor calls, after leaving the list), to make out his assessment by a day fixed.

Sec. 80 provides for taking testimony in case any person refuses to list as to the value of his property.

Sec. 83 provides: “In all cases of failure to obtain a statement of personal property from any cause, it shall be the duty of'the assessor to ascertain the amount and value of such property, and assess the same as he believes to be the fair amount and value thereof,”'

Sec. 81 provides that the assessor shall when requested deliver to the person assessed a copy of the statement of the property hereinbefore required, showing the valuation of the assessor of the property so listed; which copy shall be signed by the assessor.

Sec. 86 provides that the town board of review shall correct assessments, etc., but that no plaint that another is assessed too low shall be acted upon until the person so assessed, or his agent, shall be notified of such plaint, if a resident of the county, and the same rule shall apply to the county board.

By see. 88, it is provided that the failure to give such notice or hold said meeting shall not vitiate such assessment, except as to the excess of valuation or tax thereon shown to be unjustly made or levied.

It will appear by the above statutes that after the assessor has once made the assessment, he has no power to change or alter it, although by the former statute he had such power by giving the party assessed notice.

The statute requires him in case the party assessed demand it, to give him a certificate showing the assessment. Why do this if the assessor could turn around on the next instant and change the assessment? The power, even to the town and county board of review, is restricted so that they cannot raise the assessment of any party without notice, and if they do so the act is void so far as the excess over the original assessment is concerned.

The statute provides for the assessment of all property, but has carefully guarded and regulated the power of the assessor, which is an arbitrary one. He is required to give all residents an opportunity to list their property; but in case of their refusal after notice, or in case the assessor fails to obtain a statement of personal property for any cause, then it is his duty to ascertain the amount and value of such property, and assess the same as he believes to be the fair amount and value thereof.

In the case at bar the assessor had not failed to procure the amount and value of the appellant’s property. He had procured a full list, which he had accepted without objection, and had actually extended the assessment on the books. Having done this, it was his duty to return it to the office of the county clerk. If the assessment was not high enough, then it was the duty of the town board, firstly, and the county board, secondly, to raise the assessment after due notice to appellant. It could not have been the intention of the legislature in passing the above statute to allow the assessor, after making an assessment in the manner pointed out by the statute, and after giving the party assessed a certificate of assessment, for he is entitled to it on request, to re-assess the party without notice and in a secret manner. To hold thus would be to hold that a person who had been once assessed, and who had received his certificate of assessment, should be required to watch the assessor’s books every day and every hour until the books passed out of his hands, and even after the first day of July, the time the book is by law required to be returned, to see if the assessor had not changed or raised his assessment secretly and without his knowledge.

We think after the assessment has once been made a party has the right to rely on it, and that he shall not be compelled to look after the matter further, unless he receives notice from the proper authority of a motion to raise his assessment. The town or county board may lower it, but cannot raise it without notice. Besides, we must from the evidence hold that this additional assessment of $15,000 was made arbitrarily and fraudulently. It is argued by counsel that appellant left the county, so that notice could not have been served on him, and therefore no notice was required; but it is a sufficient answer to this that his assessment was not raised till some five days after his return; he having returned July 1st, and the assessment having been raised July 5th, by order of Stout, and even after the town board of review had met and adjourned. This last named board could not have raised his assessment without notifying him, yet .it is contended the assessor could; that the assessor had greater power than the board itself. If we are only to look to the substantial justice of the case, as contended for by counsel for appellees, under section 191 E. S. 1874, chap. 120, we are constrained to find from the evidence that the assessment of the $15,000 was not justified by the evidence.

Therefore the decree of the court below is reversed and the cause remanded, with instructions to the court below to make the injunction as to the $628.59 tax wrongfully levied perpetual.

Eeversed and remanded.


text:
    Mary A. Green v. John F. Birch.
    1. Parent and guild—Liability nor support on child.—In order to bind a parent for necessaries furnished his infant child by a third person, either an express promise, or circumstances from which a promise can he inferred, must be shown.
    2. Voluntary support of child by a third person.—Appellee and wife assumed the care and support of the minor child of appellant’s testator, without any express agreement as to pay therefor. Afterwards, by a written acknowledgment they agreed not to charge for support of such child unless the will then made by the father of the child “ should be broken.” The widow of the testator renounced the provisions of the will. Held, that by such renunciation the will was not broken as contemplated by the agreement of appellees, and it furnished no grounds for a repudiation by them of their agreement, or to establish a claim against the estate of the testator.
    3. Dower interest.—The renunciation by the widow affected the provisions of the will as regards appellee only to the extent of a dower interest in eight acres, parcel of a forty acre tract devised to the minor child in question, and as to the eight acres the widow made no claim. Held, that the will was unbroken, even as to the eight acres, for by it the fee in thempassed to the devisee and on the determination of the life estate the whole estate would be held by him; that the statutory right of renunciation being an existing law at the time of the execution of the agreement, it would be considered as entering into the agreement, and in contemplation of the parties in making it.
    4. Will—Not broken by widow’s renunciation.—A renunciation by the testator’s widow of the provision of the will in her behalf, in pursuance of the statute, does not destroy the effect of the will, nor render it an inoperative instrument except so far as the widow’s rights are affected.
    Appeal from the Circuit Court of Moultrie county.

      Mr. Anthony Thobnton and Messrs. A. C. & I. J. Mouses, for appellant;
    that no recovery can be liad except upon proof of a contract express or implied, cited Broughton v. Smart, 59 Ill. 440; Miller v. Miller, 16 Ill. 296; Hunt v. Thompson, 3 Scam. 179.
    There can be no implied contract unless there was a legal duty to be performed: Metcalf on Contracts, 4.
    The right to the custody of the child and the obligation to support go together: Parsons on Contract, 309.
    The right of renunciation by the widow entered into and became a part of the agreement: Matthias v. Cook, 31 Ill. 84.
    The will may be considered in determining the meaning of the agreement: Stacy v. Randall, 17 Ill. 467; 2 Parsons on Contracts 503.
    Upon the question of revocation of the will: Pev. Stat. Chap. 148, § 17.
    Mr. A. B. Bunn, for appellee;
    that a promise on the part of the parent to pay for necessaries furnished his minor child, will be inferred, cited 1 Parsons on Contracts, 306; In re Ryder, 11 Paige, 185; Van Valkenberg v. Watson, 13 Johns. 480; Pidgen v. Cram, 8 N. H. 350.
    That the agreement should have a reasonable interpretation,, and that it was annulled by the renunciation of the widow: Wells v. Carpenter, 65 Ill. 447; Wilson v. Marlow, 66. Ill 385.
   Davis, J.

This was a claim filed in the County Court of Moultrie county by appellee, against the estate of Sowyel M. Green, deceased, to recover for the board of Osea W. Green, a minor son of the deceased, from July 1, 1865, to July 1, 1876, and for care and attention bestowed upon him during same time, and for medical attendance and clothing furnished him,, amounting to $2,550.00.

The claim was defeated in the County Court, and on appeal to the Circuit Court appellee recovered a judgment against the estate for $662.75, to reverse which appellant has taken this appeal.

Prom the record it appears that the mother of Osea died in the year 1865, and on the day of her funeral the wife of appellee, who had no children of her own, and who was the boy’s aunt, proposed to her husband to take the boy, who was then about five years old, home with them. To this appellee assented, and the boy was taken to their home, where he has since remained, except when at the deaf and dumb asylum at Jacksonville.

Hothing was then or at any other time said by appellee to Sowyel M. Green about. charging for keeping the boy, but he was received as a member of the family—the father furnishing to appellee from time to time flour, meat, corn, money, etc.

Afterwards, appellee and his wife executed the following written instrument:

“Mattoon, 111., June 20, 1873.

“ This is to certify that, whereas, S. M. Green, and his wife, Mary Green, of the county of Moultrie and State of Illinois, have made their last will and testament; and whereas, I, the undersigned, have under my charge and care to raise until he becomes of age, O. W. Green, now minor son of the above S. M. and Mary Green: now if the will so made shall not be broken, then I am to have nothing for keeping the said O. W. Green. If broken, then to have pay for keeping same.

■ “(Signed) John F. Birch.

“ Louisa B. Birch.”

The will above referred to had been executed and its contents were known to appellee when said written instrument was given to Green. By the will so executed the testator made the following disposition of his estate:

To his wife, Mary A. Green, he gave and bequeathed all his personal property remaining after the payment of his debts and funeral expenses. He also devised to her during her life and so long as she should remain a widow, eighty acres of land, which on her death or marriage should go to three of his children, in fee, viz: Cassius, Montie and Efiie Green. He also devised to her to hold during her natural life, two lots in the town of Sullivan, and on her death to be divided among his children, Cassius, Montie, Efiie and Osea Green.

To Osea W. Green he gave and devised forty acres of land.

It further appears from the record that the testator died on the 29th of June, 1875, and that his said, will was duly proved and admitted to record by the County Court of Moultrie county; and afterwards and within the time prescribed by law, Mary A.” Green, his widow, filed her written renunciation of all benefit of any devise or other provision made to her by said will, and elected to take in lieu thereof her dower and legal share in the estate of her husband, and in certain proceedings commenced for that purpose, eight acres of the forty devised in said will to Osea W. Green were assigned to said Mary A. Green as a part of her dower in the real estate of her husband.

In Hunt v. Thompson, 3 Scammon, 180, it was held that either an express promise or circumstances from which a promise by the father can be inferred, must be shown to bind the parent for necessaries furnished his infant child by a third person.

In this case no express contract is shown to have been entered into until the 20th June, 1873, and no circumstances are shown from which a promise from the father can be inferred to pay for the keeping of his child. On the contrary, the circumstances show pretty clearly that the taking of the child to the home of the appellee was entirely voluntary and was more for the happiness of himself and wife and of the child than for the convenience of the deceased or with the expectation of receiving any compensation for his trouble. Appellee and his wife were childless. The boy was the youngest child of a deceased sister. He was deaf and dumb, and the relationship existing between them and his unfortunate condition were ties which bound them together, and their conduct from the time they assumed control over him until the written contract of June 20, 1873, was made, and which, when made, was made solely for his benefit, shows that no selfish motives actuated them, but that love for the child and their deceased sister alone controlled them.

It only remains to be determined what are the rights of the parties under the express contract of June 20,1873.

The will of Green having been executed, and its terms being satisfactory to the appellee, it was agreed that if the will should not be broken, appellee should have ho compensation for keeping the boy, but if the will should be broken, then appellee should receive compensation. In this agreement there is no ambiguity. It is plain and easily understood. If the will has been broken, appellee is entitled to recover. If it has not, he has no claim whatever.

Appellee claims that by the act of the widow in renouncing under the will and electing to take her dower under the statute, the will has been broken. The law giving this right to the widow existed at the time of the execution of the will and contract, and hence it entered into and became a part of the contract, and the exercise of that right cannot be considered as a breaking of the will within the meaning of the contract Matthias v. Cook, 31 Ill. 83.

But were the rule otherwise we do not consider that the will was broken by such renunciation. The will still remains as it was proven and recorded—the last will and testament of the testator, in full force and effect, and the estate, real and personal, passes by it as effectually as it would and did before the renunciation.

By the will forty acres of land in fee simple, and an estate in some town lots, were devised to Osea W. Green. This will is the evidence of his title, and under it he claims and now holds and enjoys the land devised. The effect of the renunciation in this case is not to break the will, but to charge the forty acres devised to Osea with the life estate of the widow in eight acres of the same, and to these eight acres the widow makes no claim, and the devisee has been and is now in the quiet and peaceable possession of the same, but if he were not, the will would still be unbroken, even as to the eight acres for, by it the fee in them passed to the devisee, and on the determination of the life estate of the widow, the whole estate would be held and enjoyed by him.

The judgment of the court below must be reversed.

Judgment reversed.


text:
    Levi L. Dorsey et al. v. S. T. Corn.
    Attorney’s fees when allowed by court—Rule for determining. —In fixing the amount of attorney’s fee when allowed by the court, the examination should be directed to what is customary for such legal services where contracts have been made in advance with persons competent to contract, and not what is reasonable, just and proper for the solicitor in the particular case. The inquiry should be, not what an attorney thinks is reasonable, but what is the usual charge. In taxing such fees, the chancellor should exercise bis own judgment, and not be wholly governed by the opinions of attorneys as to the value of the same.
    Error to the Circuit Court of Macoupin county; the Hon. C. S. Zane, Judge, presiding.
    Mr. A. H. Yancey, for plaintiff in error;
    that the fee allowed is unreasonable for the services rendered; and that no allowance should have been made without notice to minor defendants, cited Goodwillie v. Milliman, 56 Ill. 523; Reynolds v. McMillan, 63 Ill. 46.
   Higbee, P. J.

This was an ex parte proceeding for partition, commenced in the court below by Levi L. Dorsey, Jr., M. Pellen Dorsey and Eichard E. Dorsey; the last two named being infants, were represented by Eobert J. Hornsby, their guardian. A decree was entered appointing commissioners to make partition, and upon their report that they had made partition, 'a final decree was rendered approving said report, and vesting the title in severalty to the premises described in the bill and decreeing as follows:

“And it is further ordered that the costs and expenses of this proceeding be paid within thirty days by the parties, in the following proportion, to wit: that each of the three parties pay one-third thereof, and that the same be paid within thirty days from this date, and in default thereof that execution issue therefor; and it further appearing to the court that no contract has been made for attorneys’ fees, and it further appearing from the evidence of John I. Rinaker, F. H. Chapman and SamuelPitman, that a reasonable attorney’s fee would be five hundred dollars, it is further ordered by the court that five hundred dollars be allowed to S. T. Corn, solicitor for complainants, and taxed as part of the costs herein.”

Upon which decree appears the following endorsements, to-wit:

“Approved April 11th, 1874.

“O. S. Zane, Judge.

“Filed April 11th, 1876.

“ H. W. Btjetox, Clerk.”

Plaintiffs bring the case to this court, and assign for error the allowance of said sum of $500 as solicitor’s fees.

The only evidence in the record to base this allowance upon is the testimony of the witnesses, contained in the decree, that “a reasonable attorney’s fee would be five hundred dollars.”

No facts are stated by the witnesses, such as the usual and ordinary fees paid for similar services, when contracts are made in advance by competent parties. They simply give their opinion that $500 would be a reasonable fee. In fixing the amount of a reasonable fee, the examination should be directed to what is customary for such legal services where contracts have been made with persons competent to contract, and not what is reasonable, júst and proper for the solicitor in the particular case. The inquiry should be, not what an attorney thinks is reasonable, but what is the usual charge. Reynolds et al. v. McMillan, 63 111. 46.

We do not think the evidence sufficient to authorize the allowance made.

But looking to the record we are enabled to see the amount and character of the services actually rendered by the solicitor in the case.

At the March term, 1876, of the Macoupin Circuit Court, a short bill was filed alleging, in substance, that complainants 'were owners in fee as tenants in common of certain land therein described, all in said county, and amounting in all to about 536 acres; that no otherperson had any interest therein, and praying for a partition thereof among them equally. By leave of the court, a slight amendment was made to the hill correcting the description of one tract of land. The cause was referred to the Master in Chancery, who reported the proofs, fully sustaining the bill, and thereupon' a decree was entered declaring the rights of the parties, and ordering partition to be made, by assigning to each of the complainants one-third of all said premises, and appointing commissioners to make said partition.

At the same term the commissioners reported that they had made partition, and a final decree was then rendered approving the report, vesting the title in severalty and requiring each party to pay one-third of the costs, including the solicitor’s fee, within thirty days, and in default that execution issue therefor.

The value of the property partitioned does not appear in the record.

Proceedings in partition are usually very simple, and require no great legal skill, and a case of the kind could not well be imagined requiring less labor than seems to have been required in this. It is a case of partition in its least complicated form. But three owners of the lands, and they in equal parts; no conflicting claims or titles; no defendants, no process to issue or serve, and the labor to be performed merely of a clerical character. For such service we regard $500 as an unreasonable allowance. In taxing such fees the chancellor should exercise his own judgment, and not be wholly governed by the opinions of attorneys as to the value of the same. He has the requisite-skill and knowledge to form some idea as to what is fair and reasonable compensation, and he should exercise that judgment. Van Ohlen v. Van Ohlen, 56 Ill. 528.

The decree allowing the solicitor’s fees is reversed, and the-cause remanded.

Beversed and remanded.


text:
    J. E. Hayner & Co. v. John M. Sherrer.
    Contract of sale—Acceptance.—Appellee purchased of appellants four grain drills to be shipped to him about August 1st. The goods were shipped August 17th, and thereupon appellee, as he says, wrote appellants that he would not receive them, and that they were held in his store subject to their order. This letter never reached appellants. August 30th appellee wrote appellants, complaining of the amount of freight charges on the drills, and saying “ The drill trade will be light this season. I’ll do the best I can, and in case I don’t get them off, would like you to help me.” Held, that even if appellee had written a letter refusing to receive the drills because they were not shipped in time, his subsequent letter, written while they were still in his possession, was of itself a sufficient acceptance and waiver of all former objections.
    Appeal from the Circuit Court of Montgomery county; the Hon. W. B. "Welch, Judge, presiding.
    Mr. G. "W". Paisley and Mr. A. H. Kingsbury, for appellants -

    that the verdict was against the evidence and should have been set aside, cited Adams Ex. Co. v. Jones, 53 Ill. 463; Schwartz v. Lammers, 63 Ill. 500; McGregor v. McDivitt, 64 Ill. 261; C. C. & I. R. R. Co. v. Troesch, 57 Ill. 155; C. & A. R. R. Co. v. Purvines, 58 Ill. 38; Puterbaugh v. Devere et al. 55 Ill. 485; Goodwin v. Durham, 56 Ill. 239; Lake v. Newhoff, 56 Ill. 295; Topping Bros. & Co. v. Maxe, 39 Ill. 159; Keaggy v. Hite, 12 Ill. 99; Hopkins v. Chittenden, 36 Ill. 112; Wade v. Atkins, 58 Ill. 64; Janney v. Birch, 58 Ill. 87; Reynolds v. Lambert, 69 Ill. 495; McAllister v. Compton, 71 Ill. 170.
    Mr. James M. Truitt, for appellee;
    that the bill of exceptions is not under seal and therefore not a part of the record, cited Miller v. Jenkins, 44 Ill. 443; Jones v. Sprague, 2 Scam. 55.
    That the appellate court must presume that there was evidence to support the verdict, the bill of exceptions not purporting to contain all the evidence: Ballance v. Leonard, 37 Ill. 43; P. P. & J. R. R. Co. v. McIntyre, 39 Ill. 298; Ill. Cent. R. R. Co. v. Garish, 39 Ill. 370; Miner v. Phillips, 42 Ill. 123; Gardner v. Haynie, 42 Ill. 291; McPherson v. Nelson, 44 Ill. 124; Gallagher v. Brandt, 52 Ill. 80; Esty v. Grant, 55 Ill. 341; Goodrich v. City of Minonk, 62 Ill. 121.
    The evidence is so conflicting that the verdict will not be disturbed: Chittenden v. Evans, 48 Ill. 52; Wood v. Hildreth, 73 Ill. 525; Millikin v. Taylor, 53 Ill. 509; Chicago v. Garrison, 52 Ill. 516; Pullian v. Ogle, 27 Ill. 189; Martin v. Ehrenfels, 24 Ill. 187; Morgan v. Ryerson, 20 ill. 343; C. & R. I. R. R. Co. v. Hutchins, 34 Ill. 108; C. & R. I. R. R. Co. v. Crandall, 41 Ill. 234; Town of Vinegar Hill v. Busson, 42 Ill. 45; Davis Hoeppner v. 44 Ill. 306; Hope Ins. Co. v. Lonergan, 48 Ill. 49; Young v. Schorling, 60 Ill. 148; Tolman v. Race, 36 Ill. 472.
   Higbee, P. J.

A written contract was entered into by the parties to this snit, by which appellants sold to appellee four grain-drills, to be shipped by appellants from St. Louis on or about August 1st, 1875, to appellee at Hillsboro. Appellee was to pay for the drills $260—one-half October 1, 1875, and one-half January 1st, 1876, with ten per cent, interest after October 1, 1875.

The drills were shipped 17th day of August, 1875, and reached Hillsboro on the 19th. On their arrival they were hauled from the depot to appellee’s place of business, he paying the freight charges, and subsequently placed in his shop or shed by his direction, where they still remained at the commencement of this suit. '

Appellee testifies that two or three days after the drills arrived he wrote and mailed to appellants at St. Louis, their place of business, a letter informing them that the drills were there subject to their order, and that he would not receive them. This letter never reached appellants, as appears by the proof. But shortly after, they received from appellee the following letter:

“ Hillsboro, III., August 30th, 1875.

“ To J. E. Hayher & Co., St. Louis, Mo.

Send by express 16 mower sections ; tell me your best price for 4 foot 6 inch iron mowers; state the very hest for cash, and best on one year’s time. The man wants wood mower if prices will suit. I’ll send in all notes for machines I have sold by the 1st Sept. Tours truly,

J. M. Shereek.”

“ Superior drills are in with 250 advance freight, 200 were the agreement. Drill trade will be very light here this season. I’ll do the best I can, and in case I don’t get them off would like you to help me.”

Appellee testified that “I wrote the letter dated August 30th, 1875, because I thought may be they would let me sell them on commission.”

It is claimed by appellee that he refused to receive the drills because they were not shipped at the time mentioned in the contract.

The verdict of the jury and judgment of the court were for appellee in the court below.

The statement of the appellee that he had mailed a letter to appellants on the 24th or 25th day of August, 1875, refusing to receive the drills, is wholly inconsistent with every admitted fact in the case—the receiving and storing away the drills in his shop, payment of the freight, the failure of appellants to receive the letter at St. Louis, and above all, the writing of the letter of the 30th of August. Why, if he had informed them on the 24th or 25th that the drills had arrived and that he would not accept them, should he write five days afterwards that the drills were in, that the freight was overcharged, and refer to the agreement as to what the freight should be? Why state that he would do the best he could, but if he did not get them off, ask appellants to help him?

Even if appellee had written a letter refusing to take the drills because they were not shipped in time, the letter of the 30th of August, written while the drills were still in his possession, is of itself a sufficient acceptance and waiver of all former objection. We think the verdict so manifestly against the evidence that it ought not to stand, and the judgment is therefore reversed and the cause remanded.

Reversed and remanded.


author: Higbee, P. J. Pee Cueiam.

text:
    Nathaniel H. Boone et al. v. Mary A. Telles.
    Mortgage—Priority of lies.—The preponderance of evidence showing that appellant Boone’s deed of trust was first executed and recorded, his equities are superior to appellee’s, and he is entitled to priority of payment.
    Appeal from the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Warlow & Leeper, for appellants;
    that the decree must find the allegations of the bill to be true, or the relief prayed for will not be granted, cited Woodworth v. Huntoon, 40 Ill. 131; Mears v. Mears, 42 Ill. 50; Hall v. Towne, 45 Ill. 493; Ohling v. Luitjens, 32 Ill. 23; Mauck v. Maude, 54 Ill. 281.
    If appellant’s deed was first recorded, he will, in the absence of fraud, be entitled to priority: McNary v. Southworth, 58 Ill. 473.
    Messrs. Ketcham & Gridley, for appellee.
   Higbee, P. J.

This bill was filed in the court below by appellee against appellant, to establish a priority of lien.

On the 9th day of August, 1876, appellee was the owner of an undivided eighty acres of land in Cass county, upon which appellant Boone held a mortgage to secure the payment of $295, principal and interest then due. In addition to the sum secured by the mortgage, appellee was also indebted to Boone something over $100, making her total indebtedness to him $400.

Appellee on the said 9th day of August, contracted to sell the premises to appellant Skaggs, for the sum of $1,250, and a deed was then prepared conveying the premises to the purchaser, but it was not acknowledged and delivered until the 12th, three days after the sale.

In payment Skaggs was to assume the amount due to Boone, and on the day the deed was delivered (the 12th), executed his note to appellee for $832, the balance, payable in eighteen months, and at the same time he executed and delivered to her a mortgage on the premises so conveyed to him, and a town lot in Chandlerville of the value of three or four hundred dollars, to secure said note. This mortgage was recorded on the 17 th day of August, 1876.

On the 10th of the same month—two days before the execution of this mortgage—Skaggs made out a trust deed conveying to appellant Leeper the same lands conveyed to him by appellee, to secure to Boone the $400. This deed of trust was not signed and acknowledged until the 12th, but it was fully executed and delivered to Boone on that day, prior to the execution of the mortgage to appellee, and was recorded on the same day, three days before the mortgage was recorded.

The bill charges that this deed of trust was executed after the mortgage, and with full knowledge of the existence of the mortgage, and in fraud of the rights of appellee, and prays to have it postponed to her rights under the mortgage.

On the heai'ing the court decreed the mortgage to be a prior lien, and appellants bring the case here and assign the decree as error.

The deed of trust was both executed and recorded prior to the mortgage. By an arrangement between appellee, Boone and Skaggs, the latter was to become paymaster to Boone for $400 of the purchase money for the conveyance from Telles to Skaggs, two hundred and ninety-five dollars of which was already secured by a mortgage on the same lands. Appellant now claims that she was to have a prior lien to Boone for her $832, but the evidence in the record fails to show any such understanding; on the contrary, we are satisfied from all the proof in the case that it was understood between the parties that Boone was to have the prior lien. The sale was on time for the whole amount; nothing was to be paid down; Skaggs was insolvent; all parties understood that he was to become paymaster to Boone for $400, to be paid in the future, as a part of the purchase money, and that he already held a prior lien on the land for most of this amount.

In view of this fact, appellee refused to take a mortgage for $832 on the same premises she had just sold Skaggs for $1,250, and required him to include in the mortgage the lot in Ohandlerville, worth from $300 to $400.

Boone’s equities are not only equal but superior to appellee’s, and as his deed of trust was first executed and recorded, he is entitled to priority of payment.

The decree below is reversed and the cause remanded, with directions to the court to dismiss the bill at complainant’s costs.

Reversed and remanded.

The following opinion was delivered on motion for a re-hearing in the above cause:

Pee Cueiam.

We do not regard the principle laid down in Curtis v. Root, 20 Ill. 53, and Christie et al. v. Hale, 46 Ill. 101, as applicable to this case. We agree with counsel for appellee that the making of the deed by Telles to Skaggs, and the mortgage back from Skaggs to Telles is one act, and so we regard the whole transaction between Telles, Skaggs and Boone.

The weight of the evidence satisfies us that it was understood between all three of them that Telles was to sell for $1250 on time; that the purchase money was to be paid by Skaggs, $417, to Boone, that being the amount due him from Telles, $300 of which was secured to him by a prior mortgage on the same premises, and $832 to Telles. This constituted the whole purchase money, and both sums were secured by them on the premises sold—the one by deed of trust, and the other by mortgage. We regard Boone’s equities as superior to those of Telles, because his debt was due from Telles and secured by a prior mortgage on the same premises.

Skaggs says: I was to give Dr. Boone a lien on the land for what Telles owed him. I do not know whether it was to be a first lien or not; the contract was made in Linues Chandler’s office; myself, Dr. Boone, Telles and Linues Chandler were present; * * he was to take lien on the land to secure the payment to him. Boone says: I told him (Telles) that I would take Skaggs for whát Telles owed me, by holding the lien, for he could not pay me the money, and Mr. Skaggs did not have it.

Chandler says $1,250 was the consideration of the conveyance—$832.80 to be paid to Telles, and $417,20 to Boone. I understood Skaggs was to step into Telles’ place. I did not understand that Skaggs was to give Boone any lien on the land, but I understood from the conversation of all the parties on that day, that Skaggs was to secure Dr. Boone in some way.

Telles says Dr. Boone was not to have a mortgage, but he also says Dr. Boone never'told him that he would release his mortgage and take Skaggs. “ I got it from Linues Chandler.”

Taking the whole testimony together, and the additional fact that Boone gave up a prior lien for most of his debt, we do not doubt that it was well understood by all parties that Boone was first to be paid, and as against Telles this is equitable, because it is the payment of her debt.

What was said in the opinion in this case about the insolvency of Skaggs at the time of the trade, was based on the abstract. In this particular we find the abstract does not agree with the record. The record fixes his doubtful circumstances at the time the bill was filed, while the abstract fixes it at the time of the trade. The motion for re-hearing is denied.

Motion denied.