text:
    Joliet Bottling Company, Appellant, v. Joliet Citizens Brewing Company, Appellee.
    Gen. No. 5521.

      Contract—when lacking in mutuality. A contract by which delivery of beer is agreed to be made to meet the requirements of the vendee, quality of the beer to be satisfactory to the vendee, but otherwise silent as to quality, quantity and duration, is lacking in mutuality and is terminable at will.
    Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Statement by the Court. This is an action brought by the Joliet Bottling Company against the Joliet Citizens Brewing Company to recover damages for a failure and refusal to deliver beer to plaintiff under a certain contract. The amended declaration consists of one count and avers that the defendant, a corporation, was operating a brewery in the city of Joliet; that on August 1, 1905, the president of plaintiff and the president of defendant entered into an arrangement to organize a corporation for the purpose of bottling the beer of defendant; that thereafter the plaintiff, a corporation, was organized for the purpose of bottling and selling beer and that thereafter the following contract was entered into by the parties:
    “Memorandum oe agreement made this 23rd day of August, 1905, by and between the Joliet Citizens Brewing Company, a corporation of Illinois, and the Joliet Bottling Company, a corporation of Illinois, both-of Joliet, Will County, Illinois.
    “Witnesseth, that, for and in consideration of the sum of One ($1) Dollar, receipt whereof is hereby acknowledged and in further consideration of the premises hereinafter set forth, the Joliet Citizens Brewing Company, hereinafter called the Brewing Company, agrees to brew for the Joliet Bottling Company, hereinafter called the Bottling Company, two special brews of beer, especially adapted for bottling purposes, to guarantee them as to quality, and to deliver the same to the said Bottling Company at their works at the prices of Six Dollars and Thirty-Five Cents ($6.35) a barrel for the first and Five Dollars and Twenty Cents ($5.20) a barrel for the second quality. The said Brewing Company agrees to deliver said beer to said Bottling Company in sufficient quantities to supply the said Bottling Company’s demand for either or both kinds, and agrees not to bottle, nor cause to be bottled nor to furnish to any person, firm or corporation, beer of any quality for bottling so long as the Bottling Company is bottling the beer of said Brewing Company. Said Brewing Company agrees that if at any time it shall appear that a discount from the above terms for cash can be made to the Bottling Company, it, the said Brewing Company will give said discount. Said Brewing Company further agrees to furnish to said Bottling Company during the first three months of its operation such advertising novelties, not to exceed in value the sum of Five Hundred Dollars, as the trade may demand or warrant and thereafter, if the trade shall warrant, to furnish other and further advertising novelties to said Bottling Company as may be agreed upon.
    “In consideration of the above, said Bottling Company agrees to bottle the beer of said Brewing Company as aforesaid, and to pay the prices as aforesaid, so long as said Brewing Company shall continue to furnish to said Bottling Company beers of satisfactory quality, as aforesaid, in such quantities as the trade shall demand, and to market the same as the product of' said Brewing Company. Said Bottling Company further agrees to pay for such beer according to the terms hereinbefore set forth, and to make all settlements therefor with said Brewing Company as follows: Upon the fifth of each month for all beer delivered by said Brewing Company to said Bottling Company from the sixteenth to the last of. the preceding month; upon the twentieth of each month for all beer, as aforesaid, from the first to the sixteenth of the same month.
    “This agreement is made in pursuance of a memorandum entered into and signed by the parties hereto in the persons of W. 0. Bates and Mike Kahn, upon August 14,1905, at Jdiet, Illinois.
    “Witnesseth the hands and corporate seals of the parties hereto the day and year above written in duplicate. ’ ’
    That in pursuance of said contract plaintiff with the advice of officers -of defendant leased certain premises and incurred an obligation of $5000 for rent and erected and set up machinery at an expense of $40,000 for the purpose of bottling beer; that in December, 1905, plaintiff commenced to bottle and sell the beers of defendant and continued so to do until October 10, 1906, at which time it had a large number of orders for beer of defendant bottled by plaintiff; that during said time the beer furnished by defendant was not of the required quality, and that plaintiff with the consent of defendant secured beer from other sources and bottled and sold it as the beer of the defendant; that upon eight different occasions the statements of account of defendant were not submitted to plaintiff until after the settlement day had passed and defendant accepted amounts on account less than the amounts due and continued to supply beer to plaintiff for bottling; that plaintiff is not and was not at the commencement of this suit indebted to defendant and plaintiff had in all other respects complied with the terms of the contract; that on September 23, 1906, defendant wrongfully and without proper cause terminated the said contract with plaintiff, whereby the plant of plaintiff was rendered useless and plaintiff lost and was deprived of a large sum, etc. The defendant filed a general demurrer which was sustained, and judgment rendered that defendant go hence without day. The plaintiff appeals from that judgment.

      Garnsey, Wood & Lennon and Coll McNaughton, for appellant.
    Eddy, Haley & Wetten and John J. Wellnitz, for appellee; Charles H. Pegler, of counsel.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

The only question to be determined is, whether the contract for the breach of which this suit was brought is one upon which appellant is entitled to maintain a suit for damages against appellee because appellee concluded not to deliver any beer under it, after appellee had delivered beer under it for several months. Appellee contends that the contract is void for want of mutuality, and that since it is silent as to duration, either party had the right to terminate it at any time.

The contract contains no limitation as to the time of its duration. It is uncertain as to the quantity of the goods to be delivered. The appellee agrees to deliver a sufficient quantity to supply the appellant’s demand, and neither to bottle nor to furnish any beer of any quality for bottling to any other person or corporation while appellant is bottling the beer of appellee. The only agreement as to quality and quantity is, that appellee shall furnish beer of satisfactory quality in such quantities as the trade shall demand. If the contract had fixed any quantity as to the amount to be delivered, then the law would require it to be delivered in a reasonable time provided there was no direction as to time.

When .a contract for the sale of personal property fixes neither quantity nor time, the contract is terminable at will and cannot be enforced for indefiniteness. Davis v. Fidelity Fire Ins. Co., 208 Ill. 375; Vogel v. Pekoc, 157 Ill. 339; Irish v. Dean, 39 Wis. 562; Baldwin v. K. C. M. & B. Ry. Co., 111 Ala. 515; C. R. & C. R. Co. v. C. N. O. & T. P. Ry. Co., 44 Fed. R. 456; Blaisdell v. Lewis, 32 Me. 515; Cumberland Bone Co. v. Atwood Lead Co., 63 Me. 167; Laurence v. Robinson, 4 Colo. 567; Butler v. Smith, 35 Miss. 457.

Thq quality of the beer was to be satisfactory to appellant for bottling purposes. The only measure of quality fixed by the contract is that it shall be satisfactory to appellant. Whenever appellant chose to say it was dissatisfied it might refuse to accept the goods furnished. Neither a minimum nor a maximum quantity is fixed by the contract. Appellant might require a few barrels or a large quantity. The amount to be delivered is dependent on appellant’s wants and its wants are dependent on its efforts to sell the goods. Appellee is required to hold itself prepared to furnish the uncertain amount required by appellant whether it be large or small. The quantity to be furnished is dependent solely on the wishes and the success of appellant in marketing the goods without appellee having any information from the contract, or voice in the matter. The contract apears to be lacking in mutuality. Vogel v. Pekoc, 157 Ill. 339; Higbie v. Rust, 211 Ill. 333. The contract was terminable at any time at the will of either party and there was no error in sustaining the demurrer. The judgment is affirmed.

Affirmed.

Mb. Justice Dibell took no part in the decision of this case in this court.


source: Caselaw Access Project

license: Public Domain

text:
    Ella N. Sheppard, Appellee, v. Marquette Third Vein Coal Mining Company, Appellant.
    Gen. No. 5522.
    1. Mines and minees—paragraph (i) of section 4 construed. In the term “boilers” as used in paragraph (i) of section 4 are included all pipes and connections between a boiler and a steam chest or engine.
    2. Mines and minees—section 4 of act construed. Under section 4 of the Mines and Miners Act it is the duty of the operator to have the machinery in the mine inspected daily by the mine examiner and a record made of the conditions.
    3. Mines and miners—what wilful violation. Held, that a failure to have boilers and connections examined and a report made of conditions as required by statute, was wilful and rendered the operator liable irrespective of whether the deceased miner was in the exercise of due care.
    4. Mines and minees—what not proximate cause. Held, in this case, that the absence of the engineer from the hoisting engine was not the proximate cause of the death upon which the action was predicated.
    5. Ordinary oaee—presumption arising from habits of care. Seld, that it was a reasonable presumption from the character and habits of the deceased that he did what ordinary care for his own safety would require and that he had been accustomed to do.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Bureau county; the Hon. R. M. Skinner, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1911.
    Statement by the Court. Appellee sued appellant to recover damages for the death of her husband which it is averred was caused by appellant’s wilful violation of the Miners Act. Each count of the declaration contains a general description of the mine both at and below the surface of the ground and avers that the surface workings consisted of divers buildings, a boiler house, a battery of boilers, a hoisting engine house, a hoisting engine and appliances, a dynamo engine house, a dynamo engine to rnn an electric railway underground, fan, etc., with appliances, pipes and apparatus and a connection called a separator; that the husband of appellee was a legally qualified and certified hoisting-engineer, and as an employe of appellant operated the hoisting engine and the dynamo engine; that no person was in charge of the dynamo engine; that the pipes and appliances were out of repair; that the deceased was unlawfully required to leave the hoisting engine and to attend the dynamo engine when there were men underground; that the boilers were out of order and had not been examined by a competent boiler-maker or qualified person within six months prior to the accident which caused the death of appellee’s husband, and the examination reported to the state inspector as required by law; that the dynamo engine was not equipped with a suitable trap and that the pipes and appliances were old and worn out. The negligence averred in the first count is that appellant wilfully failed to have the boilers examined and inspected by a competent boilermaker or qualified person, and wilfully failed to have such examinations reported to the inspector, so that the boilers were out of order, by reason whereof there was an explosion and the husband of appellee so injured that he died. The negligence averred in the second count is that the appellant wilfully permitted the deceased to enter the dynamo engine house not under the direction of the mine manager before all conditions had been made safe. The third count avers that a danger signal was requiréd in the dynamo engine house, yet appellant’s mine manager wilfully failed to see that a danger signal was displayed thereat. The fourth count avers that the mine manager wilfully failed to have the dynamo engine house, engine and appliances, examined every morning by the mine examiner before the men were allowed to go to work and before deceased was allowed to enter said engine house. The sixth count avers that the mine examiner wilfully failed to examine said engine house, engine and connections. Other counts were restatements of these. The appellant filed the general issue, and on a trial the appellee recovered a verdict and a judgment for $4000.
    The plant of appellant consisted among other things of a one story brick boiler room, eighty feet in length, east and west, by forty feet in width north and south, in which are located five boilers with a steam pressure gauge on each boiler. East of and adjoining the boiler room is a two story building, in the second story of which is the hoisting engine, which furnishes power to move the cages in the shaft. The hoisting engine room is forty to fifty feet long east and west and is one hundred and fifty feet east of the main shaft. On the south side of the engine room is a doorway and leading therefrom is a stairway running east on the outside of the building. East of and adjoining the hoisting engine house, and between it and the shaft, is a one story dynamo engine house in which is located the dynamo engine used to furnish power to run the dynamo which runs the electric cars in the mine and lights it. The dynamo engine room is fifteen feet east and west by forty-four feet north and south and extends ten feet south of the south wall of the hoisting engine room. In the west wall of the dynamo engine room, extending south of the hoisting .engine room, is a door which is fourteen feet from the foot of the stairway leading up to the hoisting engine room. The distance from the throttle of the dynamo engine to the west door out of the dynamo room is twenty and a half feet. The distance from the bottom of the stairway to the top is twenty-one feet. The distance from the door of the hoisting engine room to the throttle of the hoisting engine is twenty and one half feet. The route from the throttle of the hoisting engine to that of the dynamo engine is down the stairway, a distance of sixty-two feet. The distance from the hoisting engine to the boilers is about one hundred feet and down the same stairway.
    The steam from the boilers is conveyed to a steam dryer in the east end of the boiler room and thence through pipes throughout the plant. One pipe seven inches in diameter leads from the dryer through the south wall of the boiler room thence east ninety-seven feet on the outside of the building, thence through the west wall of the dynamo engine room, thence six feet further east, and there connects with an elbow with a seven inch pipe leading perpendicularly down to the steam chest of the dynamo engine. This pipe from where it leaves the boiler room is on the outside of the building but is covered with asbestos and wooden boxing. Where the pipe runs through the west wall of the dynamo room it rests on the brick wall, and eight’ een inches inside the dynamo room the pipe runs into an Austin steam separator. On the side of the separator and connected with the inside of it is a twelve inch water gauge to show the amount of water collected in it. The steam separator is made of cast iron and weighs about four hundred pounds, and is eleven and one half inches in width and twenty-eight inches deep inside. The purpose of the separator is to catch the water arising from the condensation of steam in the pipe leading from the dryer to the dynamo engine. In the separator is a trap with a hole in the bottom for the purpose of draining the water from the trap. A one and one-half inch pipe leads from the bottom of the trap to a drain and in this pipe within reach of the engineer standing at the dynamo engine is a wheel controlling a valve which drains the water through this pipe. There are also two pet cocks in the bottom of the dynamo steam chest which are always kept open when the engine is running and through which condensed steam or water which had got into the chest and in the pipe up to the separator wóuld drain out. The throttle of the dynamo engine is in the seven inch perpendicular pipe leading down to the steam chest, and before opening the throttle of the dynamo engine the engineer should open the valve which drains the steam separator.
    The signals for the operation of the hoisting engine to move the cages in the shaft were given from underground by a pneumatic device which gives the signals in three places, namely, an eight inch gong which rang in the engine room, a whistle which sounded in the boiler room and another gong in the tipple.
    In April, 1909, the working hours at appellant’s plant were divided into three shifts. The deceased was a licensed hoisting engineer who had been in the employ of appellant sixteen years and was at the time of the accident the hoisting engineer on the third shift, from 11 o’clock P. M. to 7 o’ clock A. M. during which time no coal was hoisted, the miners going to work at 6:30 A. M. and leaving at 3:30 P. M. During the third shift and while the deceased was in charge of the hoisting engine there were from nine to sixteen men underground cleaning up and brushing the mine for the next day’s work, with the mine examiner who made his examination for the next day during that shift. During this shift the cages were ordinarily only moved once or twice. The deceased was required to attend to and operate the hoisting engine and the dynamo engine during that shift, while the mine examiner and the few men engaged in cleaning up and brushing the mine, to have it ready for work the next morning, were underground, and to assist the firemen when he was cleaning and washing out the boilers.
    The deceased went to work at the usual hour on the night of April 27,1909, helped the fireman about three-quarters of an hour to wash, the boilers, and stayed in the boiler room until about 2 :30 a. m., when a signal was given to hoist the cage; he then went to the hoisting engine room and was not seen again until 4:30, when the fireman threw a piece of coal at the engine room door and the deceased whistled to the fireman and came from the engine room, hitched np a mule for the fireman and then went to the dynamo engine room. A few minutes thereafter the fireman heard an explosion and going to the dynamo engine room found the door open, the steam separator burst open lengthwise, the steam pipe between the separator 'and the steam chest burst, the steam blowing out, and the deceased' crawling out of the room so badly scalded that he died during that day. At the time of the explosion there was a steam pressure of seventy-five pounds. The boilers had not been examined by a competent boilermaker or other qualified person not an employe of appellant and the result reported to the inspector, within eighteen months. The mine manager did not have' any examination made'by the mine examiner of the boilers, , their connections, the hoisting engine or the dynamo engine, and made no record of the conditions of the boilers, connections and engines.
    Cairo A. Trimble, for appellant.
    J. L. Murphy and J. L. Spaulding, for appellee.
   Mr. Presiding Justice George "W. Thompson

delivered the opinion of the court.

Appellant contends that the bursting of the steam separator and pipe was caused by the deceased negligently turning steam into the dynamo engine without first draining the water out of the steam pipe and the Austin separator, that his death was caused by his own negligence, and that the. explosion of the steam separator and pipe was not caused proximately or otherwise by any of the violations of the statute charged in the declaration. The appellee contends (1) that appellant wilfully failed to have the boilers and connections examined and inspected by a competent boiler-maker or other competent person not an employe of appellant as required by law; (2) that appellant wilfully allowed deceased to enter the dynamo engine room, which it is claimed was an unsafe place, not under the direction of the mine manager before all conditions had been made safe; (3) that the mine manager wilfully failed to see that the dynamo engine room was properly marked and a danger signal displayed calling attention to the condition; (4) that the appellant wilfully failed to have the engine house examined every morning and to make a daily record of such examination before the men were allowed to go to work and the engineer to enter such engine house, and (5) that appellant wilfully failed to require the deceased to be in constant attendance at the hoisting engine and required him to be away from the hoisting engine and at the dynamo engine while men were underground.

It was the duty of the appellant under paragraph (i) of section 4 of the Miners Act to have all boilers used in generating steam in and about the mine kept in good order, and to have the boilers thoroughly examined and inspected by a competent boiler-maker or other qualified person not an employe of the appellant as often as once in every six months, and the result of every such inspection shall be reported on suitable blanks to the state inspector. We are of the opinion that in the term boilers are included all pipes and connections between the boilers and the steam chest or engine. There had been no inspection whatever of the boilers by any person not an employe of appellant made as the statute requires for over a year prior to the accident.

Section 34 of the Miners Act provides: “In this act the words ‘mine’ and ‘coal mine’, used in their general sense, are intended to signify any and all parts of the property of a mining plant on the surface or underground, which contribute directly or indirectly under one management, to the mining or handling of coal.” Section 18 of the same act prescribes the duties of mine examiners, among which are “to visit the mine before the men are permitted to enter it.” * * * “He shall then inspect all places where men are expected to pass or to work and observe whether there are any recent falls.” * * * (c) “The mine examiner shall make a daily record of the conditions of the mine, as as he found it, in a book kept for that purpose which shall be preserved in the office for the information of the company, the -inspector and all persons interested, and this record shall be made each morning before the miners are permitted to descend into the mine.” In Spring Valley Coal Co. v. Grieg, 226 Ill. 511; 129 Ill. App. 386, it was held that this provision of the statute covered a stationary engine situated at the top of the mine, used to furnish power to haul coal cars to the retail dump and to bring hack empty cars by means of a cable. It was said that the duty of examination or inspection imposed by statute upon mine operators is not limited to the shafts and portions of the mine which are underground but includes machinery and other appliances used in removing coal and other material from around the top of the mine, including stationary engines used to haul coal to .the retail dump. Under this holding we must hold that it was the duty of the appellant to have the machinery inspected daily by the mine examiner and a record made of the conditions.

The deceased was in the dynamo engine room for between five and ten minutes before the explosion. He was an experienced engineer, having for five years'performed the same duties at appellant’s plant that he was performing on the morning he was injured. The accident was not seen by any person. It is a reasonable presumption from his character and habits that the deceased did what ordinary care for his own safety would require and that he had been accustomed to do. I. C. R. R. Co. v. Nowicki, 148 Ill. 29; I. C. R. R. Co. v. Prickett, 210 Ill. 140. The proof shows that the steam pressure on the boilers at the time of the accident was not excessive. It cannot be told with any certainty what was the cause of the explosion. If the boilers and their connecting steam pipes, which include the Austin separator and pipe which burst, had been properly examined before the accident some trouble or defect might have been discovered which could have been remedied and so have prevented the accident. The failure to have the boilers and connections examined and a report made of the conditions as required by statute was wilful and the statute makes appellant liable for all damages resulting from such wilful neglect irrespective of whether the deceased was in the exercise of due care or not.

Instruction 14, given at the request of appellee, states that if the jury believe from the evidence the dynamo engine house, dynamo engine, pipes, appliances and separator were a part of the appellant’s mining plant, and that the dynamo engine house was a dangerous place, and that appellant wilfully allowed deceased to enter said engine house and operate the dynamo engine not under the direction of the mine managers before all conditions had been made safe, and that deceased was the only hoisting engineer on duty at the mine, then the appellant was guilty of a wilful violation of the statute and if the jury believe such wilful violation of the law occasioned the death of deceased then they should find appellant guilty, even though they believe deceased neglected to drain the separator before starting said engine. That part of the instruction which recites if the jury believe the deceased “was the only hoisting engineer on duty” was immaterial and liable to mislead in view of some of the contentions of appellee, but we see no objection to the remainder of the instruction.

Concerning the contention of appellee that appellant wilfully failed to require the deceased to be in constant attendance at the hoisting engine, and required him to be away from the hoisting engine and at the dynamo engine while men-were underground, we hold that the absence of the engineer from the hoisting engine was not the proximate canse of his death. The evidence shows that at one time it was the duty of the hoisting engineer to leave his post and go to the railroad track to pick up a mail sack. It cannot reasonably be contended that if on one of such trips he had been struck by a train and killed, that leaving his hoisting engine was the proximate cause of - his death. Or if it was a part of his duties to assist the fireman in hitching up the mule, as he did just prior to the injury, and through some negligence of his he had caused the mule to kick him appellant could not reasonably contend that leaving the hoisting engine was the proximate cause of such injuries. The 15th and 16th and part of the 17th instructions given at the request of appellee were based on the theory that the absence of deceased from the hoisting engine was the proximate cause of his death. These instructions were erroneaus and the giving of them was reversible error. What has been said concerning the given instructions of appellee is applicable to some of the refused instructions of appellant and it is unnecessary to further comment upon them. For the errors pointed out the judgment is reversed and the cause remanded.

jReversed and remanded.


text:
    H. Friebele, Appellee, v. Samuel Schwartz, Appellant.
    Gen. No. 5525.
    I. Mechanic’s liens—when action may he maintained. A decree in favor of an original contractor which is against the owner only will be sustained where the action was instituted within two years after the completion of the contract.

      2. Mechanic’s liens—effect of exemption provision contained in lease. A provision in a lease, of which third parties have no notice, that the lessor’s interest shall be exempt from mechanics’ liens, is void as against such third parties.
    3. Mechanic’s liens—when owner of fee liable. An owner knowing an improvement is being made must object to the improvement; otherwise he knowingly permits the improvement and thereby consents to the party being entitled to a lien.
    Mechanic’s lien. Appeal from the Circuit Court of Lake county; the HoN. Robert W. Wright, Judge, presiding. Heard in this- court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Rehearing denied November 23, 1911.
    Cooke, Pope & Pope, for appellant.
    E. S. Gail, for appellee.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

In April, 1909, Samuel Schwartz leased to Patrick Crowe for a term of one year ending May 1, 1910, certain premises, known as the Park Hotel, in the City of Highland, to he used as a hotel and sanitarium. The building was a three story brick with a two story frame addition. In June, 1909, Crowe entered into a contract with Friebele to paint the outside of the building and the fence and to furnish the necessary material. On September 23, 1909, after the work was done Friebele filed a bill against Schwartz and others to establish a lien on the premises for the sum of $321.70, the cost of the improvements. Gust Ostrand filed an answer claiming a lien for $80 for plumbing done in the building at the request of Crowe. Schwartz filed an answer denying the allegations of the bill and that he had consented to, or knew of the improvements. The cause was referred to the master who reported the evidence with his conclusions, that there was due Friebele $321.70 with interest from August 1, 1909, and that there was due Ostrand $64.35 with interest from August 1st and that Crowe with the knowledge of Schwartz, the owner, had made the contract with Friebele for the improvements made by him, and that Schwartz had knowingly permitted Friebele to furnish such material and labor, and that Schwartz knowingly permitted Ostrand to do the work and furnish the material for which he claimed a lien. The court approved the findings of the master and entered a decree for a lien in favor of each of the lien claimants.

Schwartz appeals and insists that the appellees are not entitled to a lien but does not question the amounts decreed to be a lien on the premises. The lease states that the premises are in good repair and the tenant covenants to keep them in repair. The evidence shows that the premises were out of repair and needed painting. Crowe testified that he told Schwartz ten days before he let the contract to Friebele that he was going to have the building painted and that Schwartz told” him to go ahead. The proof by several witnesses is that Schwartz was about the building while the work was being done, and directed the painters in their work, telling them to putty the cracks and nail holes, and in various ways showed his interest in the work. One of the witnesses testified that while working on the building he said to Schwartz “You are getting the building-fixed up pretty nice,” and Schwartz replied “Yes, that is good; Crowe is putting it in good shape; it needed it pretty badly and they are making- a nice job and I have no kick coming.” There was a brewery and saloon sign on the building- and Schwartz told one witness it would take at least three coats to paint the sign over.

Ostrand testified that Schwartz was at the building when he began work on July’ 2nd and when he was endeavoring- to find the sewer Schwartz showed him where it was. Schwartz denies the statements made by the witnesses, but the evidence is overwhelming- that he was about the building while the work was being done and not only did not object but gave instructions to tbe men doing tbe work as to wbat they should do.

Appellant contends that Ostrand was a subcontractor and that bis claim for a lien was barred by bis failure to give notice to appellant of bis employment to do tbe work witbin sixty days, and by bis “failure to file a claim with tbe recorder witbin four months from tbe time of tbe completion of tbe work or tbe failure to file an answer in tbe nature of an intervening petition witbin four months,” from tbe time tbe work was completed.

Tbe evidence clearly shows that Ostrand was an original contractor and not a subcontractor. Under section nine of tbe Lien Act, Ostrand, an original contractor, bad two years witbin which to bring bis suit as against appellant. Tbe statute (section seven) provides that “No contractor shall be allowed to enforce such lien against or to tbe prejudice of any other creditor, or encumbrancer, or purchaser, unless witbin four months after completion * * * * * *he shall either bring suit to enforce bis lien therefor or shall file with tbe clerk of tbe circuit court;” but such claim for lien as to tbe owner may be filed any time after tbe contract is made and witbin two years after tbe completion of said contract. Tbe decree in favor of appellees is only against tbe owner and subject to the rights of prior creditors and encumbrancers. No error is assigned concerning tbe right of Friebele to have bis claim declared a lien prior to tbe lien of Ostrand and appellant is not interested in that question.

Appellant also contends that because Crowe, a tenant, contracted for tbe improvements tbe law will not give a lien against tbe leased property.

The lease contains a covenant on tbe part of tbe tenant, that be will not permit any alterations of, or upon any part of tbe premises, and appellant urges that this is a covenant not to make repairs; it also contains a covenant to keep tbe premises in repair. Tbe appellees had no knowledge of the provisions of the lease. A provision in a lease of which third parties had no knowledge, that a lessor’s interest shall be exempt from mechanics’ liens, is void as against snch third parties for the reason such a provision would be an' attempt to set aside the law of the land. Crandall v. Sorg, 198 Ill. 48.

Appellant cites numerous authorities, to the effect that a tenant cannot render the property of the landlord liable to a mechanics’ lien. These authorities are based on the statute prior to 1895, which provided “That any person who shall by contract express or implied or partly expressed and partly implied with the owner of any lot” etc. Since 1895, the statute contains the further clause “or with any one whom such owner has authorized, or knowingly permitted to contract for the improvements” etc. Under the present statute an owner, knowing an improvement is being made, must object to the improvement, otherwise he knowingly permits the improvement and thereby consents to the party being entitled to a lien. Haas Electric Co. v. Amusement Co., 236 Ill. 452; Wertz v. Mulloy, 144 Ill. App. 329. The evidence shows that both lienors were original contractors and establishes the fact that appellant authorized or knowingly permitted Crowe to contract for the improvements. The decree is affirmed.

Affirmed.


text:
    Gertrude Parsons, Appellant, v. Nicholas Smith et al., Appellees.
    Gen. No. 5528.
    1. Dram-shops—who jointly liable in action for injury to means of support. If the husband of plaintiff was injured and died because of intoxication produced by intoxicating liquors sold to him, then all persons who sold him liquor materially contributing to that intoxication and all owners of the. premises wherein the liquor was sold, if they knowingly consented to such use of such premises, are jointly liable with the parties who sold such liquor to plaintiff’s husband.
    2. Dram-shops—against whom action lies for injury to means of support. The remedy provided by statute is not confined to. suits against licensed saloon-keepers but is given against all persons engaged in the sale of intoxicating liquors.
    3. Dkam-shops—what not defense to action for injury to means of support. A party causing intoxication in whole or in part cannot escape liability for damages to the means of support caused by such intoxication because he may not reasonably have foreseen the consequence of intoxication produced by such sales.
    4. Pleading—when alternative allegation immaterial. Alternative pleading is a defect in form only when the facts so alternatively stated are material.
    Action in case. Appeal from the Circuit Court of Marshall county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1911.
    Statement by the Court. In October, 1907, Gertrude Parsons began a suit in case against Nicholas Smith and Christian Henning seeking to recover damages for injury to her means of supportcaused by the death of her husband while in an intoxicated condition. A declaration containing one count was filed averring that the liquor that caused Parson’s intoxication was sold to her husband by Nicholas Smith, the keeper of a dram-shop in a building owned by Christian Henning, and that plaintiff bad because of sucb intoxication been injured in her means of support. After a demurrer bad been sustained to tbe declaration and also to an amended declaration, the plaintiff in July, 1909, filed an amended count making additional parties and averments. Tbe defendants filed a demurrer to tbe declaration as amended. At tbe May term, 1910, leave was granted to plaintiff to file an additional count, which was filed, and on June 24, 1910, an order was made on motion of tbe defendant that tbe demurrer to tbe amended declaration stand as a demurrer to tbe additional count.
    Tbe amended count avers, that Nicholas Smith on, to-wit, August 16, 1906, in a certain building occupied by him did sell and give intoxicating liquor to John Parsons, thereby causing in whole or in part, or did contribute to then and there cause tbe intoxication of John Parsons; that Christian Henning, tbe owner of said building so occupied by said Nicholas Smith, knowing that intoxicating liquors were being sold or to be sold therein did knowingly permit the selling and giving of intoxicating liquors aforesaid by said Smith to said Parsons; that in consequence of the intoxication aforesaid and by reason of bis being so intoxicated, said Parsons engaged in a quarrel and fight with said Smith and by reason of sucb intoxication, struggle and fight said Parsons fell or was knocked down and injured and as a consequence thereof died; that Parsons was tbe lawful husband of plaintiff and supplied ber with the necessaries and comforts of life and by reason of bis death she has been injured in and deprived of ber means of support, etc. Tbe count makes similar averments as to other- defendants selling intoxicating liquor to said Parsons then and there contributing to bis intoxication.
    Tbe additional count avers tbe selling of intoxicating liquor by tbe several defendants to said Parsons, and that sneh selling of intoxicating liquors did cause and contribute to cause the said Parsons to become intoxicated and that said sales and intoxication occurred within the space of two hours; that in consequence of the intoxication aforesaid said Parsons engaged in a dispute and scuffle with said Smith and in said dispute and scuffle by reason of said intoxication he fell violently to the ground causing such injuries that he died thereof; that said Parsons was the husband of plaintiff and contributed to her support and by reason of his death she has been injured in her means of support etc.
    The defendants, Nicholas Smith, Christian Henning, •Charles Simpson and John A. Burcham filed a joint demurrer containing special causes:
    (1) “ That it is in and by said declaration endeavored to hold the defendants Christian Henning and John A. Burcham jointly liable with the defendants Nicholas Smith and Charles Simpson and other defendants herein, contrary to law as shown by the alleged facts as set forth in the declaration. ” „
    (2) “It is endeavored by said declaration to hold said Henning and Burcham jointly liable with said Nicholas Smith and said other defendants for acts done in part by third parties neither the said Henning nor the said Smith nor the said Burcham. ’ ’
    (3) The declaration is insufficient and uncertain.
    (4) “Said declaration pleads the facts set up in the alternative and does not plead any specific facts directly as a fact.”
    (5) The declaration endeavors to recover for the pretended loss by the plaintiff of certain property and for injury thereto and does not show the plaintiff to be the owner of any property.
    The joint demurrer of the remaining defendants contains only the first of the foregoing enumerated causes. The court sustained the demurrer of the defendants and rendered judgment against the plaintiff who appeals to this court.

      D. H. Gregg and J. L. Murphy, for appellant.
    E. D. Richmond, H. H. Dictjs, Henry E. Jacobs-, Tracey & Tracey and Barnes & Magoon, for appellees.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

Plaintiff avers in her declaration that Smith and others of the defendants sold intoxicating liquor to her husband, causing him to become intoxicated, and that in consequence of such intoxication her husband engaged in a quarrel and struggle, and by reason of such intoxication her husband fell or was knocked down, and his head injured on a sidewalk, and that his death was caused thereby, and that she has been injured thereby by the loss of her means of support.

It is contended that some of the defendants cannot-be held jointly liable with other defendants. The cause of action is based on the provisions of section -9 of the dram-shop act. This section provides that a wife injured in her means of support in consequence of the intoxication of any person shall have a right of action against the persons jointly who, by selling intoxicating liquor, caused in whole or in part such intoxication, and the persons leasing any premises, having knowledge that intoxicating liquor is to be sold therein, shall be severally or jointly liable with the persons selling liquor therein for all damages sustained. (Sec. 9 of Dram-Shop Act.) If the husband of appellant was injured and died because of intoxication produced by intoxicating liquor sold to him, then ‘all persons who sold him liquor materially contributing to that intoxication and all owners of the premises wherein the liquor was sold, if they knowingly consented to such use of such premises, are jointly liable with the parties who sold such liquor to plaintiff’s husband. Emory v. Addis, 71 Ill. 273; Stanley v. Leahy, 87 Ill. App. 465.

It is also contended by appellees that the amended declaration is defective because it does not aver that any of the defendants are keepers of a drám-shop. This cause is not named in any of the special causes of demurrer. While the act is ordinarily described as the dram-shop act, yet such is not its legal title; it is “An act to provide for the licensing of, and against the evils arising from the sale of intoxicating liquors.” Section 9 gives a remedy to every husband, wife,.child, etc., who shall be injured in person, property or means of support by an intoxicated person or in consequence of the intoxication of any person against any person or persons who shall by selling or giving intoxicating liquor, etc. The remedy is not confined to suits against licensed saloon keepers but is given against all persons engaged in the sale of intoxicating liquors. The sale by a grocery merchant of lemon extract, which was intoxicating, to be used as a beverage, has been held to sustain a cause of action under this section. Walker v. Dailey, 101 Ill. App. 575. It was not necessary to aver that any of the defendants were keepers of a dram-shop but the averment that they sold intoxicating liquor to plaintiff’s husband which caused his intoxication, in whole or in part, was sufficient.

The fourth cause of demurrer is that the declaration pleads facts in the alternative. There are but two matters pleaded in the alternative: (1) That Parsons “fell or was knocked down” and injured, and (2) tliat “defendant, John Burcham, was the owner of the said building and premises occupied by said Charles Simpson or had leased and let said building to said Simpson as aforesaid and was the lessor thereof * * *' and knowingly permitted in and on said building and premises the selling” etc. Alternative pleading is a defect in form only when the facts so alternatively stated are material. 6 Encyc. of Pl. and Pr. 268; Gould on Pl. chap. 3, note 14; Shipman’s Common Law Pl. sec. 346. It is not material whether Parsons fell or was knocked down. The material averment is that in consequence of such intoxication he was injured and plaintiff was thereby injured in her means of support. The special demurrer was properly sustained as to Burcham only, on the ground that the pleading as to the premises the liquor was 'sold on, was as to him alternative on a material fact, but it should have been overruled as to the other defendants.

Both counts. of the declaration aver that plaintiff was injured in and deprived of her means of support and injured in and deprived of her property. There is no averment of facts showing that plaintiff was injured in and deprived of her property; that part of the declaration which avers injury to her property is but a conclusion and the demurrer being special should be sustained as to so much of the declaration only. as claims “injury to her property,” but should be overruled as to the damages to her means of support.

It is also contended on behalf of appellees that the death of Parsons was not the natural consequence of the sale of liquor and could not be reasonably foreseen. A party causing intoxication in whole or in part cannot escape liability for damages to the means of support caused by such intoxication because he may not reasonably have foreseen the consequence of intoxication produced by such sales. Roth v. Eppy, 80 Ill. 283; King v. Haley, 86 Ill. 106; Schroder v. Crawford, 94 Ill. 357; Meyer v. Butterbrodt, 43 Ill. App. 312; Marschall v. Laughran, 47 Ill. App. 29. It was a question of fact for a jury whether the death of plaintiff’s husband was caused by and in consequence of his intoxication as averred, and while the declaration is somewhat argumentative in that regard, yet argumentativeness cannot be taken advantage of by a general demurrer. 6 Encyc. of Pl. and Pr. 268. The court properly sustained the special demurrer of defendant Burcham, but erred in overruling it as to all the other defendants except as to so much of the declaration as claimed damages to the property of appellant. The judgment is reversed and the cause remanded for further proceedings in conformity with this opinion.

jReversed and remanded.


text:
    Harry F. Cooper, Appellant, v. Paul H. Cooper, Appellee.
    Gen. No. 5429.
    1. Masters in chancery—when order of reference may he modified. An order of reference to a master is an interlocutory decree and subject to be modified or corrected, if erroneous at any time.
    2. Masters in chancery—when error in stating account preserved for review. An assignment of error charging that there was error in not taking into account a certain item is properly preserved where the master’s report is objected to and the objections filed to such report subsequently ordered to stand as exceptions.
    3. Chancery—what not part of record. Remarks of a judge taken stenographieally are not evidence and unless incorporated in a certificate of evidence signed by the judge who made such remarks are not part of a chancery record.
    4. Chancery—when certificate of evidence must he filed. A certificate of evidence must be filed at the term at which the transaction occurs or at some later period provided for during such term.
    Bill in equity. Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded with directions.
    Opinion filed October 13, 1911.
    Statement by the Court. This is a bill in equity filed April 29, 1905, by Harry F. Cooper against Paul H. Cooper, his brother, seeking to have a deed made May 27, 1889, by Harry F. Cooper conveying a quarter section of land in South Dakota to Paul H. Cooper declared to be a mortgage and asking a decree for a re-conveyance. The bill alleges that the conveyance while appealing to be a deed absolute was in fact a mortgage; that on August 11,1893, there was an accounting and settlement between the parties and a balance found in favor of complainant, and it was then agreed that the title to said land should remain in the defendant and that on request of complainant defendant would convey the tile to whomsoever the complainant should direct, and that subsequently thereto the defendant had acknowledged the trust in writing; that in May 1904, complainant learned that defendant had in 1899 without the knowledge or consent of complainant conveyed said land to a purchaser, who had no notice of complainant’s rights, and that complainant immediately upon learning of the sale demanded of defendant an accounting for rents and profits, and that defendant reconvey the land to complainant or pay the market value of the land.
    The answer admits the conveyance made by complainant to defendant, but denies all the other allegations of the bill; states that complainant has no interest in the quarter section of land and no right to an accounting, pleads the Statute of Frauds and the ten years’- Statute of Limitations. A replication was filed and the cause referred to the master to take and report the evidence. The master reported the evidence taken, and the cause coming on to be heard before the court, Judge Bishop presiding, both parties offered additional evidence, when the cause was re-referred to the master for an accounting. Both parties filed exceptions to the report of the master. The court on the final hearing sustained -some of the exceptions of both parties, overruled others and entered a decree in favor of complainant for $2343.87, from which the complainant appeals, and each party assigns error in this court. In the accounting the master states the entire accounts between appellant and appellee, charges the appellee with the net proceeds of the quarter section of land, and appellant with $500, half the amount of a note to Charles 0. Barrett, executed by William D. Cooper and appellant and paid by appellee. The court disallowed the credit of $500 .allowed by the master to appellee on the Barrett note, and approved the find - ing of the master charging appellee with the amount received by him on the sale of the quarter section of land, which he sold for ten dollars an acre.
    Butters & Armstrong, for appellant.
    Raymond & NewhíU5l, for appellee; Samuel Alschuler, of counsel.
   Mr. Presiding Justice G-eorge W. Thompson

delivered the opinion of the court.

Appellant insists and assigns for error that there was error (1) in going behind the settlement of the parties of August, 1893, which was acted upon in December of the same year when the balance found due was paid, and (2) that the court should have charged appellee with the cash value of the quarter section of land at the time the bill was filed, which the proof tends to show was forty dollars per acre.

Appellee insists (1) that the order of re-reference was made by consent of the parties and that it was therein directed that the entire accounts of the parties should be re-stated, and (2) that the court erred in sustaining the exception of appellant to the allowance to appellee of $500 on the Barrett note and in not allowing the same with interest thereon.

The contention of appellee that the order of re-reference made at the time of the first hearing before the court was by consent, is based upon the following statement in the stenographer’s report of what occitrred in open court at the September term 1906: “And now the court after conference with counsel on both sides makes and enters the following order that is to sav: This cause will be re-referred to James Shaw as special muster, to state the account between the parties and report the same to this court, without delay. The scope' of the accounting will be this: It will be limited to the time of the sale of the 160 acres of land. Paul IT. Cooper will be charged with the price of that land at the time of the sale. The accounting will embrace all transactions between ITarry F. Cooper and Paul IT. Cooper from the time óf the conveyance of the real estate from Harry to Paul and from the time of the bill of sale of the store property,” etc. The foregoing is contained in the certificate of evidence signed at the May term 1910 after the final disposition of the case.

The order of re-reference contained in the record was ma.de at the September term, 1906, after a hearing upon evidence reported by the master and of evidence taken in open court. It recites only “the court after hearing the testimony of witnesses sworn and examined in open court orders that this cause be referred to James Shaw as special master for an accounting,” and gives no directions whatever as to the scope of the accounting or what charge to make concerning the quarter section.

A certificate of evidence is part of the decree. Conductors Benefit Assn. v. Leonard, 166 Ill. 154; Bennett v. Bradford; 132 Ill. 269. The order of reference to the master to take the account was an interlocutory decree and subject to be modified or corrected if erroneous at any time. Jeffry v. Robbins, 167 Ill. 375.

The remarks of the judge in directing the order of reference appear to have been taken down by a stenographer, and are not a part of the record proper. They are not evidence and are not properly in the certificate of evidence, since the certificate was made four years later by another judge (Guyer v. D. R. I. & N. W. Ry. Co., 196 Ill. 370) and no time was given at the September term, 1906, within which to file a certificate; neither is there anything in the remarks made by the court in directing the order of reference indicating that the reference was by consent of the parities. The reference was the decision of the court made upon the hearing without any agreement on the part of appellant. It was necessary that the matter be referred to the master to take the evidence and state the account as to what appellee should be charged with for the land and as to taxes on, and income, if any, from the quarter section of land subsequent to the time of the settlement in August, 1893. Moshier v. Norton, 83 Ill. 519; Garlick v. Mutual L. & B. Ass’n, 129 Ill. App. 406. This was necessary even if the parties could not go behind the settlement of their accounts had in 1893.

The sixth exception of appellant to the report of the master, which was overruled by the trial court, is that the master erred in not finding the fair market value of the quarter section of land, at the time the bill was filed, was forty dollars per acre, and that the defendant should account to complainant for its fair market value at that time. The first and sixth assignments of error of appellant in this court are that the court erred in overruling complainant’s sixth exception to the master’s report, and in not decreeing that the defendant should account for the full market value of the land at the time the bill was filed. Appellee insists that this contention of appellant is not properly before this court and that appellant, having neither made any motion to modify the order of reference, which he argues is composed of the signed order modified by the remarks of the judge, nor taken any exception thereto at the time, cannot now be heard to raise any question concerning it. When the master made his report on the reference to state the account, appellant filed objections to it insisting that appellant should he charged with the value of the land at the time the hill was filed with interest from that date. The master overruled the objections and they were ordered to stand as exceptions before the trial court, so that appellant raised the contention in the trial court that is here 'insisted upon, and the question is not only properly presented for adjudication, but appellee had notice in the trial court of appellant’s contention.

It may also be said “in answer to suggestions made by counsel for appellee * * * that since the entire proceedings in chancery causes are matters of record, and subject to review on appeal or error, it is not required by the rules of chancery practice that exceptions should be taken to the various decisions of the court made in the progress of such causes. ’ ’ Miller v. Whelan, 158 Ill. 544; Bird v. Bird, 218 Ill. 158; Smith v. Newland, 40 Ill. 100.

The record shows that on May.27, 1889, the appellant and his brother, William D. Cooper,'who died in 1894,- owned as tenants in common a half section of land in South Dakota, and appellant owned a quarter section in the same neighborhood; that appellee was security for appellant on a $2000 note held by the Aurora National Bank; that prior to 1888, William D. Cooper and appellant had been partners in the grocery business in Aurora, and on March 1, 1888, appellee bought out the interest of his brother William in the grocery; that one Barrett, the father-in-law of William D. Cooper, held a note for $1,000 executed by appellant and William D. Cooper which it is admitted, was given for the indebtedness of William D. Cooper; and that in April, 1889, a judgment had been entered in Kane county against appellant and William D. Cooper, on the $1000 note. On May 27, 1889, appellant and William D. Cooper executed a deed to appellee on the half section of land in South Dakota to securediim for his liability on the note to the Aurora National Bank; and appellant also conveyed to appellee the quarter section of land, owned by him individually over which this controversy has arisen. On July 18,1889, appellant by a bill of sale for the consideration of $3500 transferred to appellee the grocery and stock and business, valued at about $2000 and also a note made by one Oliver Young to the brothers while partners in the grocery business. Appellee took possession of the grocery by placing his son in it and clqsed it out, although appellant remained in it and appears to have been the actual owner. Appellee paid the Barrett judgment May 29, 1889, and the note to the Aurora National Bank on July 18, 1889, the day the bill of sale was executed.

In February, 1893, appellee sold the half section of land for $3200 and in August of that year appellee and appellant had a settlement and an accounting in which it was agreed that after crediting appellant with one half the proceeds of the sale of the half section of land and one half the Young note, appellee owed appellant $601.05, on which he that day paid $100. On December 12, 1893, appellee wrote to appellant a letter enclosing a draft for $413.72 in setlement in full to that date, and making a statement of some minor errors claimed by him in the August settlement. This letter also refers to “an unsettled account, balance of Cooper Bros., due me of $320.33 which you saw on the old ledger when here when I bought out your and Wm’s. interest when you moved to Aurora. There were some accounts put in the doubtful list; part of them I collected, but not enough to pay this balance.” On January 29, 1896, appellee wrote to appellant suggesting that he, appellee, deed the quarter section of land to appellant’s sister and daughter, and stating that there was $113.18 due to appellee. A week later he wrote another letter to the same effect, offering to make the deed. In January, 1899, appellee sold the quarter section of land without the knowledge of appellant for $10 an acre. Appellant did not learn of this sale until Mav, 1904, when he demanded a reconveyance of the land, or an accounting for its market value.

The letters and statements made by appellee show that in Angnst and December, 1893, after the sale of the. half section of land, there was a full and complete accounting as to all indebtedness between appellant and appellee, and that all the indebtedness of appellant to appellee had been paid by half of the proceeds of the half section .and from .other moneys, leaving $600 in the hands of appellee belonging to appellant, and leaving the title to the quarter section conveyed by appellant to appellee as security for the debts which had been paid, still in the appellee. It also shows that at that time appellee made a statement to his brother William, which included $1200 paid by appellee on the Barrett note. It would be very difficult, after the lapse of so many years, to know all that was said and done in these settlements which included the settlements for the proceeds of the half section of land, the sale of the grocery store, the sale of a safe and jewelry to appellee by William and of the accounts between William and appellee. The statement of the account between appellee and William was made out by appellee and sent to William, and William’s interest was looked after by appellant for the reason that in September, 1893, he had been taken to an asylum by appellee, where he died in 1894. Appellee in his testimony states: “there was a balance due to ITarry and to William on that sale,” —the sale of the half section. - In a letter written by appellee in July 1904, to appellant he states: “In regard to your writing about a settlement, we had that some time since both for your one half interest and for William’s one half * * * and his account I considered settled under the circumstances.” The statements made out by appellant do not prove that other items mav not have been presented and withdrawn or adjusted in some other way by the parties. There is no evidence of any fraud in the settlement or that anything was forgotten or any mistake made in it. Appellee must in the absence of proof of fraud or mistake be held bound by his letter and draft sent in December, 1893, which he states is ‘ ‘to settle up in full. ’ ’ "We hold that appellant and appellee in the absence of fraud or mistake are both estopped by the settlement of these accounts made in 1893. The statement of the account between the parties to this suit should have been confined to matters subsequent to the settlement in December, 1893. Bull, Admr., v. Harris, 31 Ill. 487; Straubhler v. Mohler, 80 Ill. 21.

From the letters of appellee, it is clear that after the settlement of their accounts in 1893, and the payment to him as mortgagee of all the debts the deeds were made to secure, appellee held the title to the quarter section of land in trust for appellant. 3 Pomeroy’s Eq. Juris., sec. 1218. He sold it in 1899, and concealed the sale from appellant, the real owner. When appellant discovered that the land had been sold and demanded a settlement and an. accounting from appellee the appellee denied the trust relation and resisted an accounting, until his letters were produced, which proved that the title was conveyed to him by way of mortgage, and that the indebtedness secured had been fully paid many years before. "When it was clearly made to appear that the equities are with appellant, then appellee seeks to restate the account covering all the transactions, and then for the first time apparently makes charges for commissions for selling the half section, the grocery store and the quarter section.

Appellee insists that he sold the quarter section of land in controversy with the consent of appellant, and hence he is only chargeable with what he received, and not with the value of the land at the time appellant discovered the land had been sold and filed his hill for a re-conveyance. Appellee bases his contention that appellant consented that he might sell the land, on the letter written by appellee to appellant in January 1896. The letter is: °

“Mendota, Jan’y 29, ’96. Dear Harry: Your letter of yesterday to hand. I write this from the house as I have an attack of grip. I will keep that land in my name as it is until I can sell it; when sold I will divide it equally between Darline and Mary. It is safer in my hands. I will not be mortgaging it, and if sold now would hate to sacrifice on it. I will sell it first good opportunity. The other land I sold on time and will be two years yet before it is paid * * * Eesp ’j,
P. II. Cooper.”

Appellee insisted that the deed from appellant conveying the land was a deed absolute and not a mortgage. In the original answer appellee denied that appellant had any interest whatever in the land and also pleaded the Statute of Frauds and Perjuries. Later he filed a plea of the Statute of Limitations. The letter was pleaded and offered in evidence to show that by the statement of appellee the deed was only a mortgage. The appellee although a witness several times m his own behalf did not testify that he had permission or authority to sell the land after the indebtedness to him had been paid and does not produce any reply of appellant to the letter, although all communications between the parties at that time were by correspondence. In a second letter written February 4, 1896, appellee again wrote to appellant “I have concluded to deed that quarter section in Dakota, and you can decide among yourselves how you want it deeded. I thought it best to deed it to Mary and Darline. You have not yet got squared up with your creditors, have you; if not they are liable to seize the land and you will not realize anything from it. Lhave a claim of $113.18 which must be paid before I deed it. Of course my claim would be very much larger, if I was presenting same to Nellie to pay. On payment of the above sum I am ready to make out deed.” In a third letter dated February 6, 1896, he again writes * * * “I want all this jangling stopped. The $113.18 due me cannot be reduced, when that amount is sent me I will make out the deed.” Appellant as a witness in his own behalf testified that he “never authorized Paul to incur any expense on account of this 160 acres or to sell it. ’ ’ Yet he does not say what reply he made to any of these letters. The evidence shows that appellant paid the taxes on this land after the settlement of 1893, and in fact from the time it was deeded to appellant in May 1889. The land was raw and unproductive. The evidence fails to show that appellant paid any attention to the land or made any- inquiry about it from February, 1896, until 1904, although he knew appellee was paying taxes on it and that there was something due appellee in 1896, for taxes paid by him. Appellant manifested no care and took no responsibility concerning this land from 1889 to 1904. Appellee took all that care and responsibility. Appellee was willing to deed the land in 1896, to whoever appellant should direct, but appellant, for some reason not disclosed by the record does not appear to have desired it to be deeded back to himself at that time. When in 1896 appellee wrote appellant that he should sell it at the first good opportunity -appellant does not show that he objected to his doing so. When appellee was offered in 1899 all it was worth, that was a good opportunity to sell. It may be, as intimated in the petition of appellee for a rehearing, that all these conveyances were simply a scheme to delay creditors and that suggestion may account for there being no reply shown to the question of appellee in his letter of February 4, 1896, to appellant: “You have not yet got squared with your creditors, have you?” The appellee has not pleaded, however, that the original conveyance to him was fraudulent for the purpose of delaying creditors, so that the effect of such a conveyance is not before us.

Appellant having paid no attention to the demand that what was due appellee should be paid, and to the request that he should direct who the land should be deeded to, may not now equitably demand of appellee more than the reasonable value of the land at the time it was sold with legal interest on the balance dne him at that time. By his silence he would appear to have consented that the holder of the title should sell it. The land was sold for all it was worth at the time ■of the sale. Appellee sold it in compliance with his notice to appellant that he would sell it at the first good opportunity. There is no bad faith shown in the making of the sale of the land. It was a fraud on the part of appellee to subsequently convert the proceeds to his own use and not to have disclosed the sale to appellant at the time, but this fraud will not relate back to the sale and make that fraudulent and appellee chargeable with the subsequent increase in value of the land, without some proof of fraudulent intention at the time of making the sale. Appellant has no equitable cause of complaint under the circumstances in this case when he receives the amount for which the land was sold with interest.

Appellee assigns a cross error that the court should have allowed appellee credit on account of the quarter section for the sum paid by him on the Barrett note or judgment. It is evident from the statement made to William by appellee on August 1, 1893, and from the letter written by appellee to appellant in July, 1904, in which he states “his account (William’s) I considered settled under the circumstances,” that that matter was settled with William at the time the half section was sold. Appellee also stated in his evidence before the master that there was a balance due William at the time of the sale of the half section. There was no error in the court sustaining the exception of appellant to the allowance of anything on account of the Barrett note or judgment.

The decree of the circuit court is reversed and the cause remanded to the circuit court with instructions to cause the account to be restated from the time of the settlement in December, 1893, and to enter a decree against the appellee charging him with the amount received from the sale of the quarter section of land, and from its use after December, 1893, less any credits appellee may be entitled to, if any, for taxes or other matters since December 12, 1893, not including, however, any commission for making the sale, with legal interest on the balance due appellant from the date of the sale.

Reversed and remanded with directions.


text:
    John Nehring, Appellant, v. Frances L. Nehring, Appellee.
    Gen. No. 5505.
    1. Marriage—by what laws validity determined. The law of the state where a marriage takes place must control as to its validity, and if valid where celebrated it is valid in this state.
    2. Marriage—when void. If residents of this state, one of whom is under the inhibition to marry imposed by the divorce law's of this state, temporarily leave the state for the purpose of marrying, a marriage so contracted is absolutely void.
    3. Presumptions—as to lato of sister state. In the absence of proof as to the statute laws of a sister state, they will be presumed to be the same as the lex fori, where there is no common law rule applicable.
    4. Comity—when doctrine does not apply. Courts will not under the guise of comity between states enforce or carry into effect or recognize a foreign contract which is void under the statutes of this state, where the statute is a declaration of public policy.
    Divorce. Appeal from the ’Circuit Court of De Kalb county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court .at the April term, 1911.
    Reversed and remanded with directions.
    Opinion filed October 13, 1911.
    Charles I. McNett and H. S. Early, for appellant.
    Clieee & Clieee, for appellee.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

Frances L. Nehring filed a bill in chancery in the Circuit Court of De Kalb county praying for a divorce and alimony from John Nehring. John Nehring answered the bill of complaint and filed a cross-bill praying that the marriage between the parties be declared null and void. By stipulation the original bill was dismissed and the cross-bill was to stand as an or^ iginal bill. The facts alleged in the bill, in brief, are: Frances L. Kidd obtained a divorce on June 9, 1909, from Herbert F. Kidd, in the Circuit Court of De Kalb county, (see post 542) on the ground of extreme and repeated cruelty. On August 24, 1909, Frances L. Kidd and John Nehring, both residents of DeKalb county, Illinois, went to Madison, Wisconsin, for the purpose of being married, without any intention of remaining in Wisconsin; a marriage ceremony was performed between them on that day, and they returned to Illinois the next day, where they have since resided. It is alleged “that said pretended marriage was solemnized within one year from the time said divorce had been granted to Frances Nehring from her husband, Herbert F. Kidd, and said marriage was solemnized in violation of the laws of Illinois.” Complainant states he did not know that Frances L. Kidd had been divorced from her former husband less than one year prior to August 24, 1909, and prays that the pretended marriage be declared null and void. The defendant filed a general demurrer to the bill, which was sustained, and a decree entered dismissing the bill for want of equity. John Nehring, the complainant, appeals from that decree.

Section la of Chapter 40, of the Statutes of Illinois-— title Divorce—provides:

“That in every case in which a divorce -has been granted for any of several causes contained in section 1 of this act, neither party shall marry again within one year from the time the decree was granted, provided when the cause for the divorce is adultery the person decreed guilty of adultery shall not marry for a term of two years from the time the divorce was granted, provided, however, that nothing in this section shall prevent the persons divorced from re-marrying each other; and every person marrying contrary to the provisions of this section shall be punished by imprisonment in the penitentiary for not less than one year nor more than three years, and said marriage shall be held absolutely void. ’ ’

The only question in this case is whether the statute of Illinois, making a marriage of a divorced person absolutely void if celebrated within one year from the granting of a divorce, has any effect beyond the limits of the state of Illinois. The rule in this state is that the law of the state, where a marriage takes place, must control as to its validity, and if valid where celebrated it is valid in this state. McDeed v. McDeed, 67 Ill. 545; Lyon v. Lyon, 230 Ill. 366; Reifschneider v. Reifschneider, 241 Ill. 92. It is also the rule that a marriagé, invalid where it is celebrated, is invalid everywhere. Canale v. People, 177 Ill. 219; Bishop on Marriage and Divorce, Sec. 390; Reifschneider v. Reifschneider, supra.

There is a difference in the effect of statutes relating to marriage, the provisions of which are directory although entailing a penalty for their violation, and provisions which declare a marriage to be a nullity. ‘ The general rule is, that unless the statute expressly declares a marriage contracted without the necessary consent of the parents, or other requirements of the statute, to be a nullity, such statutes will be construed to be directory, only, in this respect, so that the marriage will be held valid although the disobedience of the statute may entail penalties on the licensing or officiating authorities.” Reifschneider v. Reifschneider, supra; Olsen v. People, 219 Ill. 40; Campbell v. Beck, 50 Ill. 171; 26 Cyc. 835.

The bill alleges that the marriage in Wisconsin “was apparently in conformity with the laws of Wis-cousin. ’ ’ That is not an allegation that the marriage was valid by the laws of Wisconsin. The question arises, what are the presumptions as to the validity of the marriage of divorced persons in Wisconsin. There is no common law concerning divorce. The ecclesiastical courts had exclusive jurisdiction of causes relating to marriage and divorce. Marriages were annulled for certain reasons existing before marriage, but absolute divorce for misconduct after marriage was unknown in England, until such relief was permitted by the divorce act of 1857. Divorces were there granted a mensa et thoro, which were merely legal separations amounting to a partial dissolution of the marriage relation, but no authority existed in any of the judicial courts to grant a divorce as the term is understood in the United States. 9 Am. & Eng. Ency. of Law, 726; Bouvier’s Law Dict., title Divorce. Divorce in the United States is purely a creation of the statute.

The bill of appellant alleges that appellee had been married to, and had on June 9,1909, obtained a divorce from Herbert F. Kidd in Illinois, and that a marriage was celebrated between appellant and appellee on August 24, 1909, in Wisconsin. The bill does not allege what, if any, restriction the law of Wisconsin makes concerning the marriage of divorced parties. It is a general rule throughout the United States that in the absence of proof as to the statute laws of a sister state, they will be presumed to be the same as the lex fori, where there is no common law rule applicable. 13 Am. & Eng. Ency. of Law, 1060. There being no common law on the question of divorce the presumption is that the statute of Wisconsin concerning divorce is the same as the statute of Illinois. Asa matter of fact the statute of Wisconsin is almost identical with that of Illinois on that 'subject, and the courts of that state have held marriages between a divorcee and another party within a year null and void where the parties went to another state, as here, apparently to avoid the law. Statutes of Wis. (1905), chap. 456, sec. 1; Lanham v. Lanham, 136 Wis. 360, 17 L. R. A. (N. S.), 804. Chief Justice Winslow, in the opinion in that case, shows that there are two exceptions to the rule that a marriage valid where celebrated is valid everywhere, namely:' “ (1) Marriages which are deemed contrary to the law of nature, as generally recognized by Christian civilized states; and (2) Marriages which the law-making power of the forum has declared shall not be allowed, on grounds of public policy.” “A state undoubtedly has the right to declare what marriages between its own citizens shall not be recognized as valid in its courts; and it has also the power to declare that marriages between its own citizens contrary to its established public policy shall have no validity in its courts, even though they may be celebrated in other states under whose laws they would ordinarily be valid. In this sense at least it has power to give extra territorial effect to its laws. The intention to give such effect must, however, be quite clear.” The Illinois statute imposes the same restrictions against marrying within one year on both parties to a divorce suit. The only distinction the statute makes between an innocent and a guilty party is, that a party against whom a divorce is granted for the cause of adultery may not marry for two years. The innocent party who procures the divorce for any cause may not marry within a year thereafter. The Legislature recognized the fact, that while divorce is a necessary evil, yet no inducement should be held out to parties to encourage them to procure a divorce. Marriages should be permanent unions, so far as they can be made so, without causing evils which are more detrimental to the family welfare and public morals than the family troubles which are statutory grounds for divorce. ‘ ‘ One of the frequent causes of marital disagreement and divorce actions is the desire on the part of one of the parties to marry another; that if there be liberty to immediately remarry, an inducement is thus offered to those who have become tired of one union, not only to become faithless to their marriage vows, but to collusively procure the severance of that union 'under the forms of law for the purpose of experimenting with another partner, and, perhaps, yet another, thus accomplishing what may be called progressive polygamy, and, finally, that this means destruction of the home and debasement of public morals.” Lanham v. Lanham, supra.

Even if- the presumption that the Wisconsin statute was similar to ours did not obtain, to hold that parties could, by going to an adjoining state temporarily, render the prohibition of the statute nugatory, in these days of rapid and cheap transportation, when parties may go from any part of the state to an adjoining state and return in a few hours, is to render the act useless and the law-making power impotent. There is no limitation in express terms in the act as to where it shall have effect, and it would appear to be intended to control the conduct of residents of this state whether within or without the state. The act declares the public policy of this state regarding divorced parties resident within its bounds, that they shall not marry within one year, and if they do then such marriage shall be “absolutety void.” Courts will not under the guise of comity between states enforce or carry into effect or recognize a foreign contract, which is void under the statutes of this state, where the statute is a declaration of public policy. N. Am. Ins. Co. v. Yates, 214 Ill. 272; Raisor v. C. & A. R. R. Co., 215 Ill. 47; Pope v. Hanke, 155 Ill. 617. The parties to this suit, being residents of Illinois at the time they went to Wisconsin, cannot by going temporarily without the state long enough to have a marriage ceremony performed, avoid the effect of the prohibition of the statute of Illinois against marrying within-a year, and the express provision that such marriages are “absolutely void.” The courts must enforce the terms of the statute and decree such marriages to he void ab initio. Roth v. Roth, 104 Ill. 35; Reifschneider v. Reifschneider, supra; Lanham v. Lanham, supra; State of Tennessee v. Pennegar, 87 Tenn. 244, 2 L. R. A., 704; State of Georgia v. Tutty, 41 Fed. R. 753, 7 L. R. A. 50; McLennan v. McLennan, 31 Ore. 480, 38 L. R. A. 863; State of Washington v. Fenn, 47 Wash. 561, 17 L. R. A. (N. S.) 800; In Re Stulls Estate, 39 L. R. A. 539; Johnson v. Johnson, 106 Pac. R. 500 (Wash.); Note to Hills v. State, 57 L. R. A. 155; Brook v. Brook, 9 H. L. Cases, 193; Middleton v. Janverin, 2 Hagg. Const. (Eng.) 437; Lacon v. Higgins, 3 Starkie 178; Mitchell v. Mitchell, 117 N. Y. S. 671; United States, ex rel. Devine v. Rodgers, 109 Fed. R. 886; State v. Brown, 47 Ohio St. 102.

The decree is reversed and the cause remanded with directions to the trial court to overrule the demurrer.

Reversed and remanded with directions.


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    Edward Graves, Appellee, v. John Berner, Appellant.
    Gen. No. 5531.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Marshall county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.

      Feed W. Pottee, for appellant.
    Babnes & Magoon, for appellee.
   Mb. Peesiding Justice G-eobge W. Thompson

delivered the opinion of the conrt.

Edward Graves brought suit before a justice of the peace against John Berner to recover for wages claimed to be due him as a farm hand. The plaintiff recovered a judgment before a justice. The defendant appealed to the circuit conrt where a verdict was returned and judgment again rendered in favor of plaintiff for $82. The defendant again appeals and his only contention in this court is that the judgment is contrary to the weight of the evidence.

Appellant is a farmer who also runs a threshing machine, threshing grain after harvest for his neighbors. Appellee testified that he began working as a farm hand for appellant March 21, 1910, and that the agreement was that he was to work until threshing time at $30 per month and that appellant was to teach him how to run the threshing engine and he was to run it and get $3 per day for running the engine while threshing. When threshing time came, appellee ran the engine a few days, when appellant hired another man to run the engine claiming appellee did not oil it properly. Appellant then put appellee at running the blower. After appellee had worked on the blower a number of days he said to appellant that he could not stand that work, that it was too dirty and made his nose bleed. Tie said to appellant “Ton didn’t hire me to run the blower, you hired me to run.the engine, I am willing to run the engine.” Appellant said to him, “If you are not going to run the blower you can quit appellee said, “All right I will quit” and appellant said “I will settle up with you;” appellee replied, “All right, you can’t settle up with me too quick,” when appellant said “I won’t pay you until after corn picking.”

Appellant testified that appellee agreed to work for liim during the farming season of 1910 for $30 a month straight, until after corn picking; that he told him he could run the engine through threshing if he was competent to run it; that he ran it first rate for a while but did not oil it enough so he hired another engineer, and put appellee at running the blower, and that he did not discharge him but appellee quit and he told him he would settle up with him but he would not get his money until after corn picking. There was testimony by other witnesses that appellee, when running the engine ran it very well, and that appellant told appellee if he did not want to run the blower he would settle with him.

The evidence is clear that appellant discharged appellee and agreed to settle with him. The sum of $82 is the balance that was due him at $30 per month and appellee by his own evidence has waived his right to insist on the full performance of a contract to work until after corn picking at $30 per month as he claims the contract was. .

A jury might reasonably find the contract was as appellee testified it was, that during threshing he was to run the engine and have three dollars per day. A man employed to do ordinary farm work at monthly wages would not reasonably be expected to work at the tail end of a threshing machine for several weeks at the same wages as are paid for ordinary farm work. It was also a question to be submitted to the jury on the evidence whether appellant had the right to insist on a man, employed for ordinary farm labor, following appellant’s threshing machine around the country and working all the time at the blower. If it made his nose bleed by reason of the continuous dust and dirt he had the right to object to working there all the time, and he was wrongfully discharged and had the right to sue for his wages, hut the appellant has not raised the question whether the suit was prematurely brought or .not. The only questions raised are (1) as to the terms for which appellee was hired and the compensation and (2) whether appellee left appellant without just cause or did appellant discharge him without just cause. The jury might reasonably find for appellee on the conflicting evidence and having found in his favor, no good reason is presented for this court disturbing the verdict and judgment. The judgment is affirmed.

Affirmed.


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    T. J. Bermingham et al., Appellees, v. Thomas H. Gill, Appellant.
    Gen. No. 5470
    Mechanic’s liens—when owner of fee not liable. Where a contract between the owner of the fee and the lessee provides for certain improvements, the interest of the lessor cannot be subjected to a mechanic’s lien for other improvements in the absence of any showing that he authorized or consented to the additional work.
    Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded with directions.
    Opinion filed October 13, 1911.
    Hiner, Bunch & Latimer, for appellant.
    Sheean & Sheean, for appellees.
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

In April 1909, T. J. Bermingham and E. W. Montgomery, doing business under the name of Wm. Hos-kins and Co., filed a petition against the Marsden Black Jack Mining Company, hereinafter called the mining company, to establish a mechanics’ lien. The petition alleged that the defendant was the owner of certain real estate in Jo Daviess county and that petitioners had at the request of defendant furnished lumber and building material amounting to $2451.50 between April 20th and November 13, 1907, which had been used in improving said real estate. The defendant answered denying that it was the owner of the real estate and stating that it was a tenant at will or by sufferance of Thomas H. Grill, who was the owner.

Thereupon an amended petition was filed making Thomas II. Grill and the Consolidated Zinc Company defendants and alleging that Thomas H. Grill, the owner, had authorized and knowingly permitted the mining company to contract for said lumber and building material for the improvement of the premises and that during all the time said material was being delivered said Grill was a stockholder in said mining company. Grill answered admitting he was the owner of the real estate and that the mining company was his tenant at will or by sufferance, but denying that he had authorized or knowingly permitted the mining company to contract for any lumber or building material for the improvement of said premises, and stating that his title was of record and that the petitioners had notice of his title and that the mining company was a tenant at will with no authority to contract for improvements and that he had no knowledge of such improvement until after the termination of such tenancy. The answer admits that Grill was a stockholder in the mining company but denies that he was either an officer or director in said companv. The case was referred to the master who reported the evidence with his conclusions that petitioners were entitled to a lien for the sum claimed with interest; the court sustained the finding of the master and entered a decree in favor of petitioners.

The evidence shows that Gill was the owner of the described real estate, and that the mining company was in possession of a part of the real estate, and had a contract for the purchase of it upon payment of a certain sum and a certain amount of stock upon conditions which were not carried out and that Gill resumed possession; that Thomas II. Gill resides in Milwaukee, Wisconsin, and did not see the property between March, 1907, and November 4, 1907, when he visited the mine but had no conversation with any one about the improvements; that the mine had been thoroughly equipped prior to 1907, before the mining company took possession; that he did not authorize the mining company or permit it to contract for any improvements- and that he had no knowledge or intimation that the mining company was making any improve- ■ ments and that he held some stock in the mining company in March 1907, hut was in no way interested in it. The evidence also shows that the contract for the purchase of the premises is in writing but it was not offered in evidence and that the mining company was let into possession of the premises, not under the contract for purchase, but under a subsequent verbal contract concerning which the evidence offered is very meager.

Where a contract between the owner of the fee and the lessee, provides for certain improvements, the interest of the lessor cannot be subjected to a mechanics’ lien for other improvements in the absence of any showing that he authorized or consented to the additional work. Sorg v. Crandall, 233 Ill. 79. To knowingly permit property to be improved is to know that material is being procured for that purpose and the work being done and not to object to it. Wertz v. Mulloy, 144 Ill. App. 329.

There is nothing in the record showing that appellant authorized, knowingly permitted,-—-knew that the mining company was improving the premises or consented that the mining company should make or contract for any improvements or for any material to be used about the mine. The decree is therefore reversed and remanded with directions to- the trial court to dismiss the petition.

Reversed and remanded with directions.


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    Mary J. Hess, Appellee, v. Iven J. Hoyt, Appellant.
    Gen. No. 5467.
    1. Negligence—when doctrine of imputed does not apply. The negligence of the driver of a vehicle is not to be imputed to a guest riding with him while personally in the exercise of all the care which ordinary caution requires so as to preclude the guest from recovering from a third person for personal injuries proximately resulting from his negligence, where the driver is not the agent of or under the control of the passenger.
    2. Negligence—effect of concurring. Where a person in the exercise of ordinary care was injured by the combined negligence of the defendant and a third person, the defendant will still be liable.
    Action in case for personal injuries. Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Rehearing denied November 23, 1911.
    Nellie B. Kessler, for appellant; F. R. Moore, of counsel.
    J. H. Carey and L. D- Perrigo, for appellee,
   Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

On the 7th of January, 1910, Iven J. Hoyt was engaged in felling a tree about fifty feet high situated in a lot about twelve feet south of the south line of Elm street in Watseka. The tree leaned slightly to the north and he desiring to make the tree fall to the south tied a rope to it about thirty-five feet from the ground. The other end of the rope was tied to a tree ninety feet south in the lot, but the rope was left slack. He cut into the tree first on the- south side then on the north side with an axe.

Mrs. Mary J. Hess was engaged as a domestic in the home of J. Miller four miles from Watseka. On the morning of that day Fred Miller, the son of her employer, drove her and her children to Watseka in a bob sled, to meet a married daughter. The sled had on it a double wagon box and the day being cold the parties, except the driver who stood in the front end of the box, were seated on strawin the bottom of the box. In the middle of the afternoon when they were returning in the sled to the home of Miller the tree which Hoyt was cutting down, fell across the street breaking the rope with which EEoyt had expected to make the tree fall to the south and struck Mrs. Hess seriously injuring her. She brought suit against Hoyt to recover damages and recovered a verdict and judgment for $500 from which Hoyt prosecutes this appeal.

The appellant contends that the court erred in refusing to give an instruction requested by appellant telling the jury that if appellee placed herself in the care of the driver and if her injuries were caused by the negligence of the driver, then the negligence of the driver would be imputed to appellee and they should find appellant not guilty, and cites as authority for this instruction the City of Joliet v. Seward, 86 Ill. 402, The rule is that the negligence of the driver of a.vehicle is not to be imputed tó a guest riding with him while personally in the exercise of all the care which ordinary cantion requires so as to preclude the guest from recovering from a third person for personal injuries proximately resulting from his negligence, where the driver is not the agent of or under the control of the passenger. Flynn v. Chicago City Ry. Co., 250 Ill. 460; C. & A. R. R. Co. v. Vipond, 212 Ill. 199; Nonn v. C. C. Ry. Co., 232 Ill. 378; Seith v. Commonwealth El. Co., 241 Ill. 252; Siegel Cooper & Co. v. Trcka, 218 Ill. 559; Dudley v. Peoria Ry. Co., 153 Ill. App. 619; Gaffney v. City of Dixon, 157 Ill. App. 589; Thompson on Neg., secs. 502, 504, 1621; Schultz v. Old Colony St. Ry. Co., 8 L. R. A. (N. S.) 597 and note.

Even if it had been shown, that Fred Miller was negligent in his driving, such negligence could not be imputed to the appellee unless it was because of her fault. Where a person in the exercise of ordinary care was injured by the combined negligence of the defendant and a third person the defendant will still be liable. The appellant claims that he was standing back thirty feet in the lot and called to the driver just before the tree fell. Miller testified that he did not hear anything. Before beginning his work of felling the tree Hoyt supposed he had anchored the tree so that it would fall away from the street. Every person passing on a street has a right to presume that it is safe for the purpose of travel with ordinary care. Smith v. McDowell, 148 Ill. 51.

Neither appellant nor the driver of the sleigh had any occasion to anticipate danger, there being nothing in the street to indicate danger or give notice that the tree was about to fall across it. The appellant was clearly guilty of negligence. The proof shows that the appellee was in the exercise of due care and does not show that the driver was under the control of appellee. The instruction was properly refused and the judgment is affirmed.

Affirmed.