text:
    Lou Pritchard, Appellee, v. Village of Carrier Mills, Illinois, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Lou Pritchard, plaintiff, against Village of Carrier Mills, Illinois, defendant, to recover for personal injuries due to a defective plank crossing over a ditch. From a judgment for plaintiff for $1,000, defendant appeals.
    For the decision of the court on a prior appeal, see 199 Ill. App. 25.
    Marsh, Stilwell & Finney, for appellant; A. C. Lewis, of counsel.
    George R. Stone, for appellee; A. E. Somers and George W. Pillow, of counsel.

      See Illinois Notes Digest, Yols. XI to XY, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Boggs

delivered the opinion of the court,

Abstract of the Decision.

1. Appeal and erbob, § 1725 -—when decision on former appeal is binding. The opinion and judgment of the Appellate Court on one appeal in a cause is binding upon it and the trial court, and the questions there determined cannot be reviewed on subsequent appeals in the cause when the record is the same or substantially so.

2. Appeal and error, § 1725*—when decision on former appeal is binding on question of'sufficiency of evidence. In an action by a woman pedestrian against a village to recover damages for personal injuries, due to the breaking of a defective plank crossing over a ditch in one of defendant’s streets, evidence held to be substantially the same on the second appeal as on the first appeal so as to render the decision of the court on the first appeal, that the verdict was against the weight of evidence, binding.

3. Municipal corporations, § 1104*-—when instruction in action for personal injuries is erroneous as assuming crossing over ditch to be sidewalk. In an action by a woman pedestrian against a village to recover damages for personal injuries, due to the collapse of a plank crossing over a ditch in one of defendant’s streets, an instruction assuming that the plank constituted a sidewalk was erroneous, where the evidence tended to show that it was placed there by a certain person and used by the public without the village as such having anything to do with it, and that a bridge over the same ditch was constructed not only for horses and vehicles but also for pedestrians.

4. Municipal corporations, § 1104*—when instruction is erroneous as assuming it to be duty of village board to look after plank crossing. In an action by a woman pedestrian against a village to recover damages for personal injuries, due to the collapse of a plank crossing over a ditch in one of defendant’s streets, an instruction assuming that it was the duty of the village board to look after the crossing was erroneous, where it appeared that the plank was placed there by a ■ third person and it was a disputed question whether the village either directly or indirectly adopted the plank as a crossing.

5. Municipal corporations, § 993*—when duty of city to keep sidewalk in repair. Where a city or village undertakes to construct a sidewalk or take control of a sidewalk constructed by others, it then becomes the duty of said city or village to keep said sidewalk in a reasonable state of repair.

6. Municipal corporations, § 1107*—when question for jury whether plank crossing over ditch is sidewalk. In an action by a woman pedestrian against a village to recover damages for personal injuries, due to the collapse of a plank crossing over a ditch in one of defendant’s streets, evidence held to present a jury question as to whether the plank, which was placed over the ditch by a third person, was a sidewalk.

7. Municipal corporations, § 1098*—when contributory negligence of person crossing over ditch on plank crossing is shown. In an action by a woman pedestrian against a village to recover damages for personal injuries, due to the collapse of a plank crossing over a ditch in one of defendant’s streets, where it appeared that there was a bridge over the ditch in the center of the street and that the plank was narrow and slippery, evidence held sufficient to sustain a finding that plaintiff was guilty' of contributory negligence.


source: Caselaw Access Project

author: Mr. Presiding Justice Boggs

license: Public Domain

text:
    Casper Haefner, Plaintiff in Error, v. Golden Rule Coal Company, Defendant in Error.
    1. Appeal and error, § 1498

      —when exclusion of expert evidence as to cause of explosion in mine is harmless error. In an action against a mine owner by a mine shot firer to recover damages for personal injuries due to a premature explosion because of too short a fuse being used, the exclusion of expert evidence that the shot which injured plaintiff prematurely exploded by reason of having a fuse less than four feet long, the length customarily used, was harmless error where there was evidence that a fuse of such length would take about four minutes to explode after being ignited, and that the fuse which exploded did so in about a minute and a half after being ignited.
    2. Mines and minerals, § 102a*—who has duty of preparing shot. Under the Mines and Miners’ Act, sections 14(d), 19(i), 19(1), 20, 21, 29, 47, 47(a), 47(b), 47(c) [J. & A. H 7488(d), 7493(i), 7493(1), 7494, 7495, 7503, 7516, 7517, 7518, 7519], the duty of preparing the shot, including drilling the holes, charging them, adjusting the fuse and tamping the shot is cast upon the miner, and consequently there can be no common-law obligation placing the duty upon the employer.

      3. Mines and minerals, § 102a

      —when mine owner not liable for explosion due to failure to properly prepare shots. In the absence of evidence directly tending to prove that the mine operator has taken over the control of the manner in which the shots shall be prepared, it cannot be held liable for failure to properly prepare the shots, resulting in a premature explosion and injury to a shot firer.
    4. Mines and minerals, § %2*^when Shot hirers’ Act and Mines and Miners’ Act construed together. While the Shot hirers’ Act (J. & A. If 7512 et seq.) is an independent act and is not an amendment to the Mines and Miners’ Act (J. & A. K 7475 et seq.), the former act does not set aside the provisions of the Mines and Miners’ Act, and, in order to determine whether or not an injured shot firer has a right of action for alleged negligence of the mine owner, the construction of the provisions of both acts are involved.
    Error to the Circuit Court of St. Clair county; the Hon. Geobqe A. Crow, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    E. W. Kreither and Schaefer & Kruger, for plaintiff in error.
    Barthel, Farmer & Klihgel, for defendant in error.

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

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

On March 11, 1915, plaintiff in error, hereinafter called plaintiff, was in the employment of defendant in error, hereinafter called defendant, as a driver and shot firer in its mine. He would perform the duties of driver during the day and, after the miners had quit for the day, as a shot firer. Plaintiff had been a miner for about 16 years. He had worked for defendant company for 4 years and had been a shot firer for some 2 or 3 years. Plaintiff and Charles Nuernberger, his buddy, among other places, were to fire shots in two parallel blind entries, one being the one in which the accident hereinafter mentioned occurred,- and was known as the first east entry off the main north. On the day of the injury, Martin and Keim, two loaders, drilled four holes in the face of the first east entry, two lower holes or growlers, as they were called, and two upper holes. The entry was about 21 feet in width and 6% feet high and there was a crosscut between this entry and the one parallel to it. About 50 or 60 feet back from the face another crosscut was being driven in the face between these two entries. The two upper shots and the right-hand growler were prepared and loaded by Martin and Keim, the fuses extending some 6 or 8 inches out of said holes. The lower left-hand growler was wet and it was necessary for plaintiff to dry the same before loading it. This he did, and then called to his buddy, who was in the crosscut, that he was ready to fire and on receiving a reply that his buddy was ready, plaintiff lit the lower right-hand growler, then the upper right-hand shot, and while lighting the upper left-hand shot the fuse spit back and put out his light. Shortly thereafter one of the three shots prepared by Martin or Keim exploded, seriously injuring plaintiff. To recover for said injury this suit was instituted.

The declaration as finally amended consisted of two counts, one being designated the amended declaration and the other the additional count. The amended declaration charged that there had been a custom in defendant’s mine to equip the holes for the blasting shots with fuses, “to wit, four feet in length, and that when so equipped said fuses would burn, to wit, four minutes after being so ignited, and before causing the said powder to explode; that said custom had been adopted by and was known to said defendant, or, in the exercise of ordinary care might have been known to it for a period of, to wit: one year prior to the day and date hereinbefore alleged; that it therefore then and there became and was the duty of said defendant not to deviate from or change said custom without notice to its employees engaged in the firing of said shots.” Said declaration further alleges that plaintiff had knowledge of said custom to so equip said blasting holes with fuses 4 feet long and that on the day of the injury, said defendant not regarding its duty, negligently and carelessly equipped one of said holes with a short fuse that did not burn for the period of four minutes and exploded in less than one minute after being ignited, thereby causing plaintiff’s injuries, etc.

The second or additional count charges negligence generally in the preparation and equipping of said shots and averred and relied on the doctrine of res ipsa loquitur. To said declaration, defendant filed a plea of the general issue. At the close of plaintiff’s evidence the court directed a verdict of not guilty as to the additional count and at the close of all the evidence directed a verdict of not guilty as to the remaining count and rendered judgment thereon. To reverse said judgment this writ of error is prosecuted.

It was stipulated between the parties on the hearing that defendant had rejected the Workmen’s Compensation Act prior to said injury, and that under the provisions of the Workmen’s Compensation Act defendant is therefore barred of the defenses of assumed risk, fellow-servant and contributory negligence.

The first ground relied upon by plaintiff in error for a reversal of said judgment is that the court erred in refusing to allow expert testimony to the effect that the shot which injured plaintiff prematurely exploded by reason of its having a fuse less than 4 feet long. The evidence of plaintiff in error tended to prove that fuses of not less than 4 feet in length had been used in defendant’s mine and that it took practically four minutes for a fuse of that character to explode and that the explosion of the shot which injured plaintiff occurred in from one to two minutes after the same had been ignited. In view of the evidence in the record we do not believe that the court seriously erred in its ruling. The evidence without reference to any expert testimony was to the effect that a fuse 4 feet long would take about four minutes to explode after being ignited; that the fuse in the particular case according to the testimony of plaintiff in error exploded in about a minute and a half after being ignited. There was therefore no necessity for expert testimony, and in our view of the case this evidence was not important. The court did not err in refusing to admit such expert testimony.

It is next contended by plaintiff that defendant was guilty of negligence in allowing the hole in question to be equipped with a fuse less than 4 feet long in violation of a custom that had obtained in defendant’s mine for some years prior thereto. Plaintiff practically concedes that if he is bound by the provisions of the general Mines and Miners’ Act that he has no ground of recovery in this case, but he insists that he is not bound thereby for the reason that he is a shot firer. His insistence being that the “Shot Hirers’ Act” and the “Mines and Miners’ Act” are two separate and distinct statutes and that he, being a shot firer, is not bound by the provision of the Mines and Miners’ Act. By express provision of the law, the Mines and Miners’ Act imposes certain duties upon the mine operator, such as, supplying props, examining the mine, securing ventilation, etc. Sections 20 and 21 of said Act (J. & A. fifí 7494, 7495). There are other duties expressly cast upon the miner, such as, to properly prop and secure his working place; the place and manner of storing and handling powder, etc.

Section 29 of the Mines and Miners’ Act (J. & A. 7503) provides that: “Any wilful neglect, refusal or failure to do the things required to be done by any section, clause or provision of this Act, on the part of the person or persons herein required to do them * * * shall he deemed a misdemeanor,” etc., and “for any injury to person or property, occasioned by any wilful violation of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured,” etc.

Section 14, paragraph (d) [J. & A. ft 7488(d)] provides: “Not more than three shots shall be exploded at one shooting time ahead of the last open cross-cut.”

Section 19, paragraph (1) [J. & A. 7493(1)] provides that: “Not more than one shot shall be lighted at the same time in any working place unless the firing is done by electricity or by fuses of such length that the. interval between the explosions of any two shots shall be not less than one minute, and in no case shall any shot or shots be fired or lighted which are termed depending or dependent shots, until after the expiration of ten minutes from the successful firing of the relieving shot or shots. When successive shots are to be fired in any working place in which the roof is broken or faulty, the smoke shall be allowed to clear away and the roof examined and made secure between shots.”

Section 47 (J. & Á. ]f 7516) provides that: “No miner or other person .shall alter or change any drill hole, by increasing its depth, diameter or otherwise, after the same shall have been approved by the shot firer.”

Section 47(a) [J. & A. 7517] provides that: “No shot firer, whether voluntarily, or by command or request of any person, shall fire any unlawful shot, or any shot which in his judgment, exercised as aforesaid, from his inspection thereof, made as aforesaid, shall not be a workmanlike, proper and practical sitot * *

Section 47(b) [J. & A. ]f 7518] provides that: “No person or persons shall order, command or induce by threats, or otherwise, any shot firer to fire any unlawful shot, or any shot which in his judgment, after due inspection, shall not be a workmanlike, proper and practical shot.”

Section 47(c) [J. & A. 7519] fixes a penalty for failure on the part of any person to do what is required of him.

Section 19(i) [J. &. A. ]f 7493(i)] provides that: “Every blasting hole shall be tamped full from the explosive to the mouth of the hole, and no coal dust or any material that is inflammable or that may create a spark, whether the same shall be wet or dry, shall be used for tamping.”

It will therefore be observed by reference to the sections of the statute above quoted that the duty of preparing the shot, that is drilling the holes, charging them, adjusting the fuse and tamping the shot under' the Mines and Miners’ Statute is all cast upon the miner. These are duties and obligations with which the operator has nothing to do. Plaintiff’s counsel contend that the length of the fuse is not specified and while this is so, except as provided in section 19(1) [7493(1)], yet, that is part of the work of preparing the shot for firing and devolves upon the person charged with that duty. This duty being cast, by express provision of statute upon the miner, there can be no common-law obligation placing the duty elsewhere. In Streeb v. St. Louis S O’Fallon Goal Co., 165 Ill. App. 304, the court at page 309 says: “None of the statutory provisions aforesaid are placed upon the mine owner by the terms of .the statute, and they are not that character of duties that belong to the mine owner as a master, as distinguished from that class of duties that belong to the miner as a servant. The miner in firing the shots therefore is doing the work of a servant, and is not representing the mine owner as master in performing the master’s duty that the law casts upon him as a master. The statute does not intend to give a statutory action to the miner or those working around him, for any wilful violation of a statutory duty that is enjoined upon the miner only.” Again on page 310 the court says: “Neither is the right of action given to employees that are injured by wilful violations of the statute, given against any one who has not wilfully violated the statute. ’ ’

There is nothing in the record in this case proving or tending to prove that defendant had assumed the duty of directing how the shots should be prepared by the miners in its mines. So that we hold that inasmuch as the duty of preparing the shots is placed on the miner and not upon the operator, that in the absence of evidence tending directly to prove that the mine operator had taken over the control of the manner in which the shots should be prepared it cannot be held liable for failure to properly prepare the shots.

Plaintiff in error practically concedes that this would be true if this suit had been brought by a miner and not by a shot firer. We hold, however, that while the Shot Firers’ Act is an independent act and is not an amendment to the Mines and Miners’ Statute, the Shot Firers’ Act does not set aside the provisions of the Mines and Miners’ Act.

The Supreme Court has held in various cases that have come before it that while the Shot Firers’ Act is an independent act, in order to determine whether or not an injured person has a right of action it practically involves the construction of the provisions of both the Mines and Miners’ and the Shot Firers’ Statutes.

In Houghland v. Avery Coal & Mming Co., 246 Ill. 609, the court at page 614 says: “The principal ground upon which plaintiff in error asks a reversal of these judgments is that a shot firer does not come within the protection of the general act concerning mines and miners. The Shot Firers’ Act was originally passed in 1905 and was amended by the addition of three sections in 1907. The amendments, however, do not affect the decision of the question raised by tbe plaintiff in error. The reason given by plaintiff in error for its contention that shot firers are not within the protection of the general act concerning mines and miners is, that the Shot Firers’ Act is a separate and independent legislative enactment in nowise amendatory of the general act; also, that shot firers are experts to whom the entire mine is turned over when they commence the discharge of their duties, and no inspection is required or can be made after the miners quit work and before the shot firers enter upon the discharge of their duties. In Davis v. Illinois Collieries Co., 232 Ill. 284, a shot firer was held to be within the protection of the general act concerning mines and miners. This case was cited with approval in Brennen v. Chicago & C. Coal Co., 241 Ill. 610, where it was said the provisions of the general act ‘are for the safety and protection of all who are employed in the mine, including engineers, firemen, pump men, shot firers, drivers and other workmen and employees. ’

“Plaintiff in error insists that since those cases were decided this court has held in Hollingsworth v. Chicago & C. Coal Co., 243 Ill. 98, that the Shot Firers’ Act is an independent act and not an amendment to the general mining act, and that the decisions in those cases are therefore no authority. We cannot agree to this position. In the Hollingsworth case the coal company did not employ shot firers, and the shot fired by one of the miners caused an explosion, resulting in the death of another miner. The widow of the deceased brought an action against the coal company, and alleged as a ground of recovery that the mine was of such condition and character that the law required shot firers to be employed therein, and that the coal company wilfully failed to employ shot firers, by reason whereof her husband was killed. We held the Shot Fixers’ Act being no part of the general Mines and Miners’ Act, but being an independent act, and containing no provision authorizing a widow to sue' for damages for failure to comply with its provisions, as is the case with the general act, the suit could not be maintained. There is no intimation in the opinion in that case that shot fixers are not within the protection of the general act, and that decision is in nowise inconsistent with the previous decisions of this court holding that they are within the protection of said act.”

We hold, therefore, that the statute having cast the duty of preparing the shots on the miners, no common-law duty rested upon the defendant in regard thereto, and that defendant would not be negligent for failing to properly prepare shots as charged in plaintiff’s declaration. On the record in this case, there can be no recovery, and the court did not err in directing a verdict in favor of defendant.

It was also contended by plaintiff that under the doctrine of res ipsa loquitur he would have a right of recovery. What we have already’said with regard to the fact that no duty rested on defendant in reference to the preparation of the shot in question makes it unnecessary for us to discuss the question of res ipsa loquitur and its application in this case.

For the reasons above set forth the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    Pete Pochco, Appellee, v. Illinois Terminal Railroad Company, impleaded with Missouri and Illinois Bridge & Belt Railway Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 204

      —when refusal to direct verdict for defendant is not error. It is not error, in a negligence action, to refuse to direct a verdict for a defendant where the evidence of plaintiff, with the inferences reasonably to be drawn therefrom, fairly tends to prove the averments of his declaration.
    2. Municipal corporations, § 90*—when discriminatory railroad speed ordinance not void in its entirety. A city ordinance relating to the speed at which trains shall be operated through the city, and containing a proviso that a certain railroad company may run its trains in one direction at a greater speed, is not void in its entirety, even if the proviso is void because discriminatory in effect.
    Appeal from the City Court of Alton; the Hon. L. D. Yager, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Rehearing denied June 22, 1918.

      Oertiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Pete Pochco, plaintiff, against the Illinois Terminal Railroad Company, impleaded with the Missouri and Illinois Bridge & Belt Railway Company, defendants, to recover for injuries claimed to have been caused by the negligence of defendants. From a judgment against it for $4,300, defendant Illinois Terminal Railroad Company appeals.
    H. S. Baker and A. M. Fitzgerald, for appellant.
    John J. Brenholt, for appellee.

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

      See Illinois Notes Diarest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

3. Railroads, § 740 —when negligence of railroad company in injuring pedestrian at crossing is question for jury. In an action by a pedestrian against a railroad company to recover damages for personal injuries received as the result of being struck by defendant’s train, at a crossing, held, on conflicting evidence as to whether any warning was given and as to the speed of the train, that it was a question for the jury whether defendant was guilty of negligence and whether such negligence was the proximate cause of the injury to plaintiff.

4. Railroads, § 754*—when contributory negligence of person approaching crossing is question for jury. It is usually a question for the jury, in view of all the surrounding circumstances, whether the failure to look and listen upon approaching a railroad crossing constitutes contributory negligence.

5. Railroads, § 752*—when contributory negligence of person approaching railroad crossing is question for jury. In an action by a pedestrian to recover for personal injuries received as the result of being struck by defendant’s train at a crossing, where it appeared that four railroads, using about twelve tracks, passed over a street crossing; that defendant’s tracks were the third removed from plaintiff as he approached the crossing; that as plaintiff approached the track of the second railroad nearest the first track of defendant he saw a train coming on such track of the second railroad and waited for it to pass; that such train made the air more or less smoky, it being dark at the time, and the evidence tended to prove that defendant’s engine at the time plaintiff stepped on defendant’s first track was backing at the rate of ten or eleven miles per hour without ringing a bell or sounding a whistle, and that plaintiff’s attention was more or less distracted by the train that had passed, it was a question for the jury whether plaintiff was guilty of contributory negligence.

6. Instructions, § 135*-—when error in instruction on damages may not be complained of. A defendant in a negligence case cannot complain of error in an instruction on damages where it tenders no instruction in reference thereto.

7. Instructions, § 151*—when refusal not error. It is not error to refuse requested instructions covered by the main charge.

8. Pleading, § 449*—what is sufficient as basis for verdict. One good count in a declaration supported by the evidence is sufficient on which to base a verdict.

9. Damages, § 128*—when verdict for personal injuries is not excessive. A verdict for $4,300 for the loss of the right foot of plaintiff, held not excessive, it appearing that plaintiff was confined to a hospital for some considerable time, was wholly incapacitated for several months, and his earning capacity seriously diminished.

10. Appeal and erbob, § 1712 —when assignments of error deemed abandoned. Assignments of error not argued are deemed to have been abandoned.


text:
    First National Bank of Vienna, Illinois, Appellant, v. John T. Wilhelm et al., Appellees.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Creditors’ suit, § 56

      —when shown that wife acquired title to property through partition of father's estate. On a creditor’s bill by creditors of a husband to subject to payment of judgments against him land quitclaimed by both husband and wife, to the latter before the rendition of such judgments, evidence held sufficient to show that the wife acquired title to the land by inheritance from her father and through a conveyance from her brothers in a partition of her father’s estate by the heirs.

      Appeal from the Circuit Court of Johnson county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Creditor’s bill by the First National Bank of Vienna, Illinois, and the Farmers’ and Merchants’ State Bank of Cypress, Illinois, complainants, against John T. Wilhelm and others, defendants, to set aside a deed executed by John T. Wilhelm and Mary F. Wilhelm, his wife, to Mary F. Wilhelm. From a judgment dismissing the bill for want of equity, complainant First National Bank of Vienna appeals.
    Cowan & Huffman and Mansfield & Cowan, for appellant.
    O. B. Morgan and A. E. Somers, for appellees.

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

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

2. Creditors’ suit, § 56 —when shown that quitclaim deed by husband to wife was not made to hinder, delay and defraud creditors of husband. On a creditor’s bill by creditors of a husband to subject to payment of judgments against him land quitclaimed by both husband and wife to the latter before the rendition of such judgments, evidence held sufficient to show that although a deed was made by heirs of the estate of the wife’s father, in the course of a partition of the estate in the name of the husband, it was the intention of the parties that the fee should rest in the wife and that a subsequent quitclaim deed made by the husband and wife to the latter before the rendition of judgments against the husband was not made to hinder, delay and defraud creditors, but was made to effectuate such intention.

■3. Equity, § 313*—what is weight and effect of sworn answer. Where a sworn answer is required and filed denying the material allegations of a bill, it is evidence for the defendant of such force that the complainant can have no decree against him until the same is disproved by evidence amounting to that of one witness and in addition thereto a preponderance of proofs sufficient to have sustained the bill if the oath to the answer had been waived.

4. Equity, § 313*-—when evidence is insufficient to overcome sworn answer. On a creditor’s bill to subject to the husband’s debts, land conveyed by a husband and wife to the latter, evidence held insufficient to overcome the sworn answer of the defendants.


text:
    Terre Haute Trust Company, Appellee, v. Wells Whip Company and M. J. Ritter, Appellants.
    1. Estoppel, § 33*—when grantees at execution sale of mortgaged premises are estopped to insist that mortgagors were not owners of premises. The grantors in a deed expressly subject to a mortgage, who execute the mortgage on the premises as owners and warrant the title in fee simple in making the mortgage, cannot insist, so far as the holder of the mortgage is concerned, that they are not the owners of the premises and as such authorized to execute the mortgage, and one acquiring title to the property through execution sale against the grantee is equally estopped.
    2. Mortgages, § 226*—when presumed that grantee included mortgage debt in purchase price. A grantee who takes a conveyance subject to a mortgage is presumed to have included the mortgage debt in the purchase price, and is not permitted to dispute the validity of the mortgage, being in such respect in the same position as one who expressly assumes the mortgage.
    3. Equity, § 115

      —when trustees may not complain that eestuis que trust were not parties to hill for foreclosure. On a bill to strictly foreclose a mortgage given by trustees of an estate, held that defendants could not complain that the eestuis que trust were not made parties where they had opportunity in their cross-bill to make them parties and failed to do so.
    Appeal from the Circuit Court of Richland county; the Hon. John C. Eagleton, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    John C. Bitter, for appellants.
    John A. MacNeil and 0. A. Royse, for appellee.

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

Appellants prosecute this appeal from a decree of strict foreclosure rendered by the Circuit Court of Richland county, in favor of appellee. The record discloses that on November 2, 1885, Rebecca A. H. Maxon by her will devised to Frances A. M. Wright, her daughter, and to Hartwell. B. Wright, her son-in-law, a certain farm owned by her situated in Richland county, viz.: “To have and to hold said premises, lands and tenements in trust, during their entire lives, for the use and benefit of the grandchildren of said Hartwell B. Wright, and I give to my said trustees the sole control over said farm, with power to sell the same at private sale, and to convey the same in fee simple at their discretion and to reinvest the proceeds of such sale or sales in any property or securities that they deem best; but all such property or securities shall be held by them in trust only, for the uses aforesaid, but none of the above mentioned property shall be or become liable to be seized or sold for the debts of said Frances A. M. Wright or Hartwell B. Wright.”

Said will further provided: “If at the time of my death I leave any property, real or personal, or rights or credits not fully disposed of by the prior clause of this will I direct that they be added to and become part of the trust fund aforesaid.” Said devisees were named as executors of said will to serve without bond.

Rebecca A. H. Maxon died prior to July 18, 1906; said will was admitted to probate and said devisees were appointed executors thereof.

The record further discloses that said testatrix after making said will exchanged said above-mentioned farm for 40 feet off of the north end of Lots 1 and 2 in Block 17 in A. Kitchell’s Second Addition to Olney, which said last-mentioned property she owned in fee simple at the time of her death. On July 18, 1906, the said Hartwell B. Wright and Frances A. M. Wright executed a mortgage to appellee on said last above-mentioned real estate to secure a note, for $1,500, due 5 years after date with interest payable semiannually, which said mortgage was thereafter on the 28th day of August filed for record in the recorder’s office of said county. On March 12, 1908, said Hartwell B. Wright and Frances A. M. Wright conveyed by warranty deed said above mortgaged premises to the Olney Telescope & Harness Company, subject to said above-mentioned mortgage of $1,500. Said deed contained the following recitation: “Subject to a mortgage of sum of $1,500 now held by Terre Haute Trust Company, Terre Haute, Indiana.”

In July, 1909, the United States Whip Company obtained a judgment against the Olney Telescope & Harness Company. On June 11,1910, judgments were obtained against said Harness Company by appellant, Wells Whip Company, the First National Bank of Olney and John C. Bitter, trustee. Thereafter on November 19, 1911, said above-mentioned premises were sold on execution by the sheriff of said county and appellant M. J. Bitter became the purchaser thereof. On July 3, 1912, a bill was filed by appellee to foreclose said above-mentioned mortgage for $1,500, to which said bill certain judgment creditors of said Olney Telescope & Harness Company, together with appellants, were made parties defendant, all of whom were served with process with the exception of Wells Whip Company and M. J. Bitter. A decree of foreclosure was rendered and on August 30, 1913, said premises were sold under said decree to appellee for $1,929.78, in satisfaction of said decree and costs. Thereafter said sale was approved and on December 29, 1914, a deed for said above-described premises was executed by the master conveying said premises to appellee. Prior thereto a deed had been executed by the sheriff on the sale made by him. Appellant M. J. Bitter, the purchaser, had gone into possession under said deed. At the July term, 1916, of the Circuit Court of said county, appellee filed its bill setting forth the making of said above-mentioned mortgage, by Frances A. M. Wright and Hartwell B. Wright, and making appellants parties to said bill and praying a foreclosure of their equity of redemption. Appellants filed an answer to said hill and a cross-bill in and by which they aver that said mortgage executed by Frances A. M. Wright and Hartwell B. Wright was without authority and was in violation of the trust created by said will in favor of the grandchildren of said testate. Appellants further aver in their said cross-bill that through the sale of said premises on the judgment taken against said Harness Company, appellant, M. J. Bitter, became the owner in fee of said premises, clear of said mortgage, and pray that the deed executed to appellee by the master be set aside as a cloud on her title. A demurrer, general and special, to said cross-bill, filed by appellee was sustained by the court. A hearing was had on the original bill, answer and replication, and a decree was rendered in favor of appellee finding the amount due for debt, interest and costs, $2,287.51, and decreeing that unless appellants within 90 days pay to appellee said amount, with interest, their equity of redemption should be foreclosed, and decreeing that they should surrender the possession of said premises to appellee. It is first contended by appellants that Frances A. M. Wright and Hartwell B. Wright held the premises in question in trust, and that they had no power or authority to mortgage the same, and that' said mortgage, so far as their interests are concerned, is null and void. On the other hand, appellee insists that inasmuch as appellant, M. J. Bitter, claims under the conveyance made by Hartwell B. Wright and Frances A. M. Wright, that she is not in a position to raise this question for the reason that said deed specifically provides that it is made subject to said mortgage. We hold appellee’s point well taken. The grantors in said deed, having executed said mortgage as the owners of said premises and having warranted the title in fee simple in making said mortgage, are not in a position to insist so far as the holder of the mortgage is concerned that they were not the owners of said premises and as such authorized to execute said mortgage. Roderick v. McMeekin, 204 Ill. 636; Trustees of Schools v. Wilson, 215 Ill. 356. The law further is that all persons claiming under a grantor are equally estopped. Pinchard v. Milmine, 76 Ill. 454; Orthwein v. Thomas, 127 Ill. 554; Towle v. Quante, 246 Ill. 568.

In Orthwein v. Thomas, supra, the court at page 561 says: “It is manifest that the recitals of fact in this deed operate by way of estoppel upon Thomas Osborn, and, after its record in the proper county, August 9, 1827, upon his grantees. As was said in Pinckard v. Milmine, 76 Ill. 453: ‘We recognize the doctrine of estoppel by the recitals in a deed, and that a party claiming under such deed cannot be permitted to deny any fact admitted to exist by such recitals, ’ citing Byrne v. Morehouse, 22 Ill. 603, and Rigg v. Cook, 4 Gilm. [9 Ill.] 336; and adding: ‘The principle of these cases is, that whatever rights legitimately arise on such admitted facts may at all times be asserted, whether it be to obtain or defend the possession of such rights.’ ”

In Towle v. Quante, supra, the court in discussing privity of estate says at page 573: “The term ‘privity’ denotes mutual or successive relationship to the same rights of property, citing 1 Greenleaf on Evidence (15th Ed.), sec. 189; Union Nat. Bank v. International Bank, 123 Ill. 510. This relationship may be by operation of law, by descent, or by voluntary or involuntary transfer from one person to another. ‘All privies are in effect, if not in name, privies in estate. They are bound because they have succeeded to some estate or interest which was bound in the hands of its former owner. ’ Citing Freeman on Judgments (3rd Ed.), sec. 162; Orthwein v. Thomas, 127 Ill. 554. Privies are estopped from litigating that which is conclusive upon him wdth whom they are in privity. (Hunt v. Haven, 52 N. H. 162; 32 Cyc. 393, and note; 6 Words and Phrases, p. 5607.) Plaintiff in error derived all of her title to this property by descent or purchase from Critchlow. There is such privity existing between them that whatever is binding upon Critchlow is binding upon plaintiff in error.”

It is also insisted by appellee, as answer to appellants’ contention, that it is presumed as a matter of law that inasmuch as the deed from the Wrights to said Harness Company recites that it is made subject to a mortgage of sum of $1,500 “now held by the Terre Haute Trust Company, Terre Haute, Indiana,” said mortgage was taken, into account as a part of the consideration of said conveyance. We are of the opinion that this point is well taken. The rule as stated bv Pomeroy in his Equity Jurisprudence, sec. 1205, is that: “A grantee who thus takes a conveyance subject to a mortgage is presumed to have included the mortgage debt in the purchase price, and is not, therefore, permitted to dispute the validity of the mortgage; in this respect he is in the same position as one who expressly assumes the mortgage.”

In Maher v. Lanfrom, 86 Ill. 513, the court at page 522 says: “Where the grantee contracts with a view to the incumbrance, or is informed of its existence and fails to obtain permission to urge the defense, or fails to take covenants against the incumbrance," the presumption is that the incumbrance, as it appears on its face, formed a part of the consideration he was to pay for the property, and it would be inequitable to permit him to escape its burden.”

In Essley v. Sloan, 116 Ill. 391, the court in discussing this question at page 399 says: “He and his grantor purchased with full knowledge of this incumbrance, and paid, presumably, only the excess of the value of the lands over and above the amount of the liens thereon, and took his interest in the lands —the equity of redemption—subject to their payment. It would be inequitable, after his having received the benefit of the incumbrances by deducting the amount thereof from the consideration paid for the land, to permit him to keep it himself, and not apply it to the purpose for which it was set apart and reserved in his hands.”

Appellants further contend that to affirm the decree in this case would be a fraud on the rights of the grandchildren of the testatrix who are the real beneficiaries of the property in question. This question does not arise at this time, as said beneficiaries are not parties to said proceeding and the court is not here adjudicating on their rights and nothing in this opinion is to be taken as indicating any adjudication of the rights of said grandchildren.

Appellants further contend that the grandchildren should have been made parties to this proceeding. Appellants are in no position to urge this objection, especially in view of the fact that in the cross-bill filed by them they had an opportunity to make the grandchildren parties and bring them into court—this they failed to do. They cannot now complain.

Other errors were assigned, but in view of what we have already said it is not necessary to discuss them.

The decree will therefore be affirmed.

Decree affirmed.


text:
    John McKnelly, Executor, Appellant, v. Nell Conley, Appellee.
    1. Appeal and error, § 1787*—when judgment reversed pro forma. Under the rules of the Appellate Court for the Fourth District, the failure of the appellee to file briefs warrants a reversal pro forma.
    2. Executors and administrators, § 441*—when fact that notice of sale of lands is posted only about courthouse square is immaterial. In a proceeding to sell lands of a decedent to pay debts, the fact that the notices of sale were posted only about the courthouse square was immaterial where it was agreed that the land sold for a fair price and the purchaser had no interest in the sale, except as purchaser, although it might have been better practice to have posted some of the notices in other public places.
    3. Executors and administrators, § 392*—what cannot be considered as part of indebtedness of estate. An unpaid mortgage on lands of a decedent which has not been probated and allowed as a claim against the estate cannot be considered as part of the indebtedness of the estate for the purpose of authorizing the sale of lands to pay debts.
    4. Executors and administrators, § 445*—when approval of sale of one of separate tracts of land to pay debts is properly refused. Where, in a proceeding to sell lands of a decedent to pay debts of the estate, two separate tracts were offered for sale and sold, one tract being paid for in cash and an instalment on the purchase price being paid on the other, the purchaser of the latter thereafter refusing to comply with her hid and demanding the return of the instalment, approval of the sale as to the latter tract is properly refused, and the refund of the instalment paid properly ordered where the amount realized on the sale of the first tract was sufficient to pay all debts allowed, together with the estimated costs and expenses of administration.
    5. Executors and administrators, § 445

      -—when real estate should not be sold to pay debts. Under the guise of a proceeding to sell real estate of a decedent to pay debts, the court should not authorize the sale of more of the real estate than is reasonably necessary to pay the indebtedness, particularly where the real property is in separate tracts, and where the sale of such tracts may he made without sacrifice to the remaining parcels.
    Appeal from the Circuit Court of Clay county; the Hon. J. L. Boyles, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Rose & McCollum, for appellant.
    No appearance for appellee.

        Sec Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

This is an appeal from a judgment of the County Court of Clay county, approving in part and setting aside in part the report of sale of real estate to pay debts made by appellant as executor of the estate óf William A. Conley, deceased.

The record discloses that William A. Conley died November 25, 1915, leaving' a last will and testament which was admitted to probate in said County Court. Said testator by the first clause of his will directed the payment of his just debts and funeral expenses. By the second clause thereof he bequeathed to his daughter, Nell Conley, appellee herein, the sum of $10. By the third clause he devised and bequeathed to his daughter, Belle Erwin, and to his grandchildren, Opal and Eula Ella Erwin, the residue of his real and personal property, after the payment of said debts and funeral expenses and said legacy, his said daughter to take one-half thereof and the two grandchildren to take the other half thereof.

Said deceased died possessed of personal property aggregating the sum of $55.71, and died seized of the east half of the northwest quarter of the northwest quarter of Section 23, and the south half of the southeast quarter of Section 16, all in Town 4 North, Range 7 East, of the third principal meridian in Clay county, said 80-acre tract being subject to a mortgage of $800. Appellant was appointed executor of said will and thereafter filed an inventory of said property. Claims were filed and allowed against said estate to the amount of $543.

In December, 1916, appellant as such executor filed Ms petition in the County Court of said county for the sale of said above-described real estate to pay debts, making Ollie Henderson, Belle Erwin and Nell Conley, the daughters, and Opal Henderson and Eula Ella Henderson, the granddaughters, and Susan A. Conley, the widow of said deceased, and one Vem Bryant, tenant, and one Franklin Kenley, mortgagee, parties defendant. Service was had on all of said defendants and a guardian ad litem was appointed for the infant defendants. Appellant in said petition set forth that the personal estate of said deceased amounted to $55.71; that the claims amounted to $543, and that there were other claims to be presented and allowed amounting to $909.50, being the mortgage with the accrued interest on said above-mentioned 80-acre tract. Thereafter a hearing was had on said petition in said County Court and a decree was entered finding the value of the personal property as above set forth and finding a deficiency in the personal estate necessary to pay the indebtedness against said estate of $1,597.21, besides interest and costs, and finding that it would be necessary to sell said above-described real estate to pay said deficiency and ordered a sale thereof, subject to said above-described mortgage.

Said decree further provided “that said petitioner proceed according to law to advertise and make sale of the real estate above described, or so much thereof as may be necessary to pay the debts now due from said estate, and the costs of admimstration now due and to accrue”; and further provided the terms on which said sale shall be made.

Thereafter, said executor advertised said above-described real estate for sale under said decree, said 80-acre tract to be sold subject to said above-mentioned mortgage and the accrued interest thereon. On the 14th day of February, 1917, appellant sold said above-mentioned 20-acre tract to William and James Laugh-ton for the sum. of $880, and sold said 80-acre tract to appellee, Nell Conley, subject to said above-mentioned mortgage for $2,850. The purchasers of said 20-acre tract paid the entire purchase price in cash on the day of sale. Appellee Nell Conley paid to appellant the sum of $285 on account of said purchase price, which provided for the purchase price to be paid in instalments if so desired by the purchaser. Appellee Nell Conley refused to comply with her bid. Appellant filed a report of sale of said real estate in the office of the clerk of the County Court, in which he reported the sale of said 20-acre tract for the sum of $880, and that he had received the entire amount of said purchase price; that he had sold said 80-acre tract to appellee Nell Conley for $2,850; that she had paid $285 but refused to pay the balance, and prayed for an order that appellee be summoned to appear in court on a day to be fixed by the court to show cause why she had not complied with her said bid on said real estate, and that in the event of her refusal to comply with said sale for an order of resale of said premises. Objections were filed by appellee Nell Conley to said report, asking that said report be not approved; that said land be readvertised for sale; that said executor be ordered to refund to her said sum of $285. In support of said objection appellee assigns the following: First, that the executor had failed to post notices- in four of the most public places in the county as required by law; and second, that the sale of said 20-acre tract, to William aqd James Laughton having been first made and the said purchasers having bid for said tract the sum of $880, and having paid the full amount of said purchase price, the funds received therefrom were sufficient to cover the claims probated against said estate, together with the costs of administration, and that there was no occasion for selling said 80-acre tract and no authority in appellant so to do.

The court overruled the objections so far as they pertained to the selling of said 20-acre tract, but sustained the objections so far as they pertained to said 80-acre tract. The court approved the sale of said 20-aere tract and held null and void the salé of the 80-acre tract and ordered appellant as such executor to refund to appellee Nell Conley the amount she had advanced on said purchase price. To reverse said judgment appellant prosecutes this appeal.-

No brief was filed in this case by appellee Nell Conley or by any other of the appellees, and under the rules of this court we would be warranted in reversing said judgment pro forma. However, from an examination of the record, the ends of justice appear to demand that wé consider the ease on the merits.

The first objection made to said sale, being that the notices were not posted in four of the most public places as required by statute: The notices were postéd in different places around the public square of said city, being the square on which the courthouse was located. While we are of the opinion that it might have been the better practice to have posted a part of the notices provided for in public places other than around the public square, at the same time we do not believe that in this particular case, appellant is in a position to complain, for the reason that it was agreed by counsel in the case that both tracts of land sold for a fair price and appellee had no interest in the sale of said premises other than as purchaser.

Appellant insists that appellee Nell Conley has no right to complain with reference to the sale of said real estate on any ground, provided the court had jurisdiction of the subject-matter and of the parties, it being contended that the title to said real estate would have vested in appellee upon her having complied with her bid and upon approval of such sale by the court. Without passing on the merit of appellant’s contention, we hold that inasmuch as the mortgage on the 80-acre tract was never probated and allowed as a claim against said estate, and inasmuch as the sale of said 80-acre tract was ordered to be made subject to said mortgage indebtedness and was so advertised by appellant, said mortgage did not constitute a part of the indebtedness for which a sale of real estate to pay debts should be made. The cost and expenses incident to the administration of said estate as estimated by appellant were only $200, so that the funds derived from the sale of said 20-acre tract were more than sufficient to pay all of the claims probated against said estate, together with the costs of administration. This being true, the County Court of its own motion would have the power, at least when the purchaser of the real estate involved would so consent, to refuse to approve a sale of any real estate belonging to a decedent not necessary to pay the indebtedness. In fact, the decree of the court entered in this case, in effect,. only authorizes a sale of enough of said real estate to pay the indebtedness owing by said estate. We do not believe that under the guise of a proceeding to sell real estate to pay' debts the court should authorize a sale of more of the real estate of a decedent than is reasonably necessary to raise funds with which to satisfy the indebtedness. At least this would be true where the real estate is in separate tracts and where the sale of such separate tracts may be made without sacrifice to the remaining tracts.

The statute provides that when the executor or administrator has made a just and true account of the personal estate of the decedent to the County Court, and it is ascertained that the personal estate is insufficient to pay the just, claims against his estate and there is real estate to which such decedent has claim of title, such real estate or such portion as may be necessary to satisfy the indebtedness of such decedent and the expense of administration may be sold in the manner therein provided. Section 98, Administration Statute, being section 147, ch. 3, Hurd’s Rev. St. (J. & A. ¶ 147).

We therefore hold that the County Court did not err in refusing to approve the sale of the 80-acre tract of land in question for the reason the sale of such land was not necessary to raise funds to pay the indebtedness owing by said estate.

Judgment affirmed.

Affirmed.


text:
    Charles Pryde, Appellee, v. Chicago-Sandoval Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Charles Pryde, plaintiff, against Chicago-Sandoval Coal Company, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $3,000, defendant appeals.
    Noleman & Smith, for appellant.
    Kagy & Vandervort and Warnock, Williamson & Burroughs, for appellee.

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

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

Abstract of the Decision.

1. Mines and minerals, § 158*—what evidence is admissible to show notice to mine owner of danger to miner using passageway. Where a miner, while passing along a passageway in a mine, was strufck by a car which had become detached from a “trip” by striking the roof of the passageway, or from other cause, evidence that at this point in the passageway, on account of the low roof, large quantities of coal were from time to time raked off of the “trips” of loaded cars and that by reason of these obstructions and the fact that the track was lower there than at any other place along the passageway, and the further fact that the cars used were old and in a large part were without proper bumpers, or no bumpers at all, cars frequently became uncoupled from the “trip" and permitted to proceed unimpeded, vyas admissible to show notice of the danger on the part of the defendant.

2. Mines and minerals, § 148*—what does not constitute material variance in action for injuries to miner struck by car becoming detached from trip. In an action for injuries to a miner who was struck by a car which had become detached from a “trip,” a count charging that the track along the entry "was rough and uneven and contained abrupt depressions or swags therein, and in divers places along said entry was laid and constructed so close to the rib or side of said entry that cars in passing thereover would jolt or strike against said rib or sides of the entry,” causing them to become uncoupled, is not materially variant from evidence that the cars struck or jolted, if at all, against the roof of the entry, where it was shown that the rib or side of the entry merged into the roof so gradually that it was hard to determine where the rib or side ended and the roof began.

3. Appeal and error, § 1458 —when variance is harmless error. Variances which are not material are at most harmless error and not ground for reversal.

4. Mines and minerals, § 182*—when negligence of defendant in action for injuries to miner struck by car becoming detached from trip is question for jury. In an action for injuries to a miner struck by a car which had become detached from a “trip” and had run unimpeded down the track, the negligence of the defendant was' a question for the jury under evidence that miners were required to traverse this particular passageway, which was unlighted and. obstructed, that owing to striking the roof or from other cause cars frequently became detached at this point, and that owing to the obstructions and the fact that the roof was low at the sides miners were required to walk in the center of the track.

5. Appeal and error, § 1560*—when error in refusing to give instruction is harmless. Error in refusing to instruct the jury to find defendant not guilty on one count of a declaration is harmless where there was evidence sufficient to support the verdict and judgment on other counts.

6. Appeal and error, § 1711 —what constitutes abandonment of error. Failure to urge the exclusiveness of the verdict in appellant’s brief and argument constitutes an abandonment.

MoBmde, J., took no part on the hearing or decision of said cause


text:
    Lottie Oldfield and Herschel Oldfield, Appellees, v. F. G. Boggs, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. William B. Wright, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action of replevin by Lottie Oldfield and Herschel Oldfield, plaintiffs, against F. Gr. Boggs, defendant, to recover 33 bushels of grain alleged to have been the property of the plaintiffs. Upon a return by the officer that the wheat could not be found, the action proceeded in trover. From a judgment for plaintiffs for $32.67, defendant appeals.
    Noleman & Smith, for appellant.
    GK F. Merion, for appellees.

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

   Mr. Presiding Justice Boggs

delivered the opinion' of the court.

Abstract of the Decision.

1. Principal and agent, § 179*—when rule that undisclosed principal must enforce contract as whole is inapplicable. The rule that an undisclosed principal endeavoring to enforce the contract of his agent made with one ignorant of the agency must enforce it as a whole and subject to every defense which existed against the agent has no application where the right of recovery is not predicated upon the contract made by the agent with the third person.

2. Principal and agent, § 111*—when third person may retain threshed grain for services. One cutting and threshing grain for another under agreement with an authorized agent of the owner may retain the grain until paid for his services.

3. Trover and conversion, § 38 —when defendant holding threshed grain may show agreement for threshing and for payment of debt of owner of land out of grain. Where, in an action of trover for the conversion of wheat, plaintiff claimed that under an agreement with his father that the crop was to be his, he sowed the wheat on land owned by his father, and the latter was permitted to testify to a contract with defendant for the cutting and threshing of the grain by defendant, it was error to exclude evidence by the latter that, upon the repetition of the contract in the presence of plaintiff, defendant agreed to care for and thresh the wheat if a debt owed by the father to defendant would be paid out of the wheat, and the amount of such indebtedness, since defendant was entitled to present his version of the contract.


text:
    Minnie Tan Osdale, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to foe reported in full.)
    Abstract of the Decision.
    1. Railroads, § 740

      —when question for jury whether ordinance relating to speed and ringing of bell is violated. In an action to recover damages for the death of a guest in an automobile struck by defendant’s train, which was backing over a railroad crossing, evidence held to present a question for the jury as to whether the train was being operated at a speed in excess of 6 miles per hour in violation of ordinance, and whether the bell was continuously rung on approaching the crossing as required by ordinance.
    2. Railroads, § 752*—when contributory negligence of occupant of automobile struck by train is question for jury. In an action to recover damages for the death of a guest in an automobile struck by defendant’s train, which was backing eastwardly over a track customarily used for westbound traffic, evidence that the automobile on approaching the track was traveling at a speed of 12 or 13 miles per hour; that when half a block from the track the driver of the car looked in both directions, but saw no train; that at a distance of 150 feet the track was visible for a distance of 600 or 700 feet; that the train was being operated at a prohibited rate of speed and that the bell was not continuously rung as required by ordinance, presented a question for the jury on decedent’s negligence, even assuming that decedent and the driver of the car were engaged in.a common enterprise, rendering the driver’s negligence imputable to decedent.

      Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Minnie Van Osdale, as administratrix of the estate of Ulysses G-. Van Osdale, deceased, plaintiff, against Illinois Central Railroad Company, defendant, to recover damages for the wrongful death of her decedent. From a judgment for plaintiff for $1,650, defendant appeals.
    Kramer, Kramer & Campbell and R. H. Wiechert, for appellant; John Gr. Drennan, of counsel.
    C. H. Gr. Heineelden, for appellee.

      See Illinois Notes Disrest, Yols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    Anton Vogt, Appellee, v. Southern Coal, Coke & Mining Company, Appellant.
    1. Master and servant, § 709*—when negligence in failing to provide reasonably safe tools and appliances is question for jury. In an action for injuries to a machinist’s helper, caused by the rebounding of a wedge upon being struck by a sledge hammer wielded by plaintiff, evidence that the wedge was not equipped with a handle and the danger of its rebounding was increased by the elasticity of the metal upon which it was being used, coupled with evidence of other practicable and safer methods of doing the work, presented a question for the jury as to defendant’s negligence in failing to furnish reasonably safe tools and appliances for doing the work.
    2. Workmen’s Compensation Act, § 2*—what is effect of rejection of act by employer engaged in extrahazardous employment. A machinist’s helper or “top man” in a mine, injured by the rebounding of a wedge while repairing a hoisting engine used in raising coal from defendant’s mine, is engaged in extrahazardous employment of mining within the Workmen’s Compensation Act, and hence where the employer rejected the act it is deprived of the defenses of contributory negligence, assumed risk and fellow-servant relation.
    3. Workmen’s Compensation Act, § 2

      —when defense of assumed risk may not be interposed by employer rejecting. The defense of assumed risk cannot be interposed in favor of an employer engaged in an extrahazardous employment who had rejected the Workmen’s Compensation Act against an employee injured by the rebounding of a wedge on being struck by a sledge hammer, under a contention that notwithstanding the rejection of the act an employer ‘is not deprived of the defense that the employee assumed the risk and dangers of which he knew, or of which he ought to have known by the exercise of ordinary care.
    4. EtiDEi¡rcE, § 428

      —when witness qualified to testify as expert upon question involved in injury by rebounding of wedge in cutting steel. A witness testifying as an expert who had been employed in defendant’s mine, and who had had more or less experience during that time in connection with the work of machinist, is sufficiently qualified to testify as an expert upon the question involved in the injury of an employee by the rebounding of a wedge used in cutting steel, although he had had nothing to do with cutting steel, the character of his experience going only to the credibility and weight to be given his testimony.
    5. Trial, § 304*—when propositions of law are properly refused. Propositions of law, general in character, to the effect that plaintiff cannot recover on his declaration or on certain counts, or that defendant was not guilty of the negligence charged, are properly refused.
    6. Trial, § 302*—when proposition of law in action for personal injuries is properly modified. In an action to recover for injuries sustained by the rebounding of a wedge, a proposition of law: “That if the use of the chisel which was used by plaintiff in the work in question was proper and such chisel was a usual, customary and proper instrument to be used in such work, then the plaintiff cannot recover in this case," is properly modified to read: “That if the use of the wedge which was used by plaintiff, in the manner in which it was used in the 'work in question was proper, and such wedge, as used, was a usual, customary and proper instrument to be used in such work, then the plaintiff cannot recover in this case.”
    7. Trial, § 304*—when proposition of law in action for personal injuries is properly refused. In an action to recover for injuries sustained by an employee by the rebounding of a wedge upon being struck by a sledge, a proposition of law “That if the defendant exercised reasonable care in choosing reasonably safe tools and instruments to do the work in question and in using the wedges in question for the purposes for which they were used, and that in using the same the defendant could not reasonably anticipate that a person using the wedge would be injured as plaintiff was injured, then the plaintiff cannot recover,” is properly refused as limiting the manner in which plaintiff was injured instead of being broad enough to include injuries from its use in and about the work generally.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Kramer, Kramer & Campbell, for appellant.
    Webb & Webb, for appellee.

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

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

An action on the case was instituted in the Circuit Court of St. Clair county by appellee against appellant to recover for injuries received by appellee alleged to have been caused by the flying or hounding out of a steel wedge that was being driven into a notch in a metallic disc in order to loosen it from the shaft to which it was attached. The original declaration consists of two counts, both of which allege that appellant had elected not to pay compensation under the Workmen’s ■ Compensation Act and, in substance, charge negligence on the part of appellant in furnishing and providing appellee with a certain wedge dr chisel without a handle or other means of preventing it from flying or bounding when struck with a sledge hammer; that the use of such wedge without a handle or other attachment to prevent it from bounding when struck a heavy blow with a sledge hammer was unsafe and dangerous, all of which it is alleged appellant well knew, or by the exercise of due care could have known.

The second count is substantially the same as the first except it is alleged that the master mechanic and foreman of appellant ordered appellee to strike said chisel or wedge with said hammer. To said declaration appellant filed a plea of the general issue. A trial had at the September term, 1916, of said court resulted in a verdict in favor of appellee for $1,500. A motion made by appellant for a new trial was confessed by appellee and a new trial was ordered After said new trial had been ordered by leave of court, appellee filed one additional count, in which said additional count it was charged, in substance, that on account of the elasticity of the metal composing the disc the method of removing the disc was unsafe and dangerous in that the chisels or wedges were likely to fly or bound away from said disc while being struck by said sledge hammer. A jury was waived and a trial was had by the court resulting in a finding and judgment in favor of appellee for $2,500. To reverse said judgment this appeal is prosecuted.

The record discloses that appelleé was employed as “top man” or machinist’s helper at the New Baden mine owned and ■ operated by appellant. On March 9, 1916, he was sent to the engine house by William Grimmer, the top boss, and directed, with other helpers, to split a circular disc, being about 4 feet in diameter and set tightly on the shaft, the disc having had a break in it. The method pursued was to saw into the upper edge of the disc with a hack saw, making an opening which was widened by the use of small iron chisels. After using the small chisels two large wedges were placed in the opening) one on top and near the edge and one at an angle of 40 degrees. By striking these wedges simultaneously with sledge hammers the opening would widen and break down the elasticity of the disc until it split apart. The sawing was, commenced at about 3 o’clock and was finished at about 4 o’clock, appellee sawing part of the time. From then on until 5 or 6, small chisels were used, sometimes being held in place with blacksmiths’ tongs, at other times it seems they were held in place with the hand. .Thereafter wedges an inch and a half or an inch and three-quarters square and about three and a half inches long, with an eye for a handle, but without handles, were then set into the opening in the manner above described and struck heavy blows with sledge hammers; One Frank Chadley, a machinist, worked with appellee in striking said wedges. They worked about forty-five minutes in all and during that time said wedges bounded or flew out several times, estimated by the witnesses at from four to six. Sometimes the wedge would fall to the floor and at other times it would fly or bound some 5 or 6 inches. Later in the evening the wedge being hit by appellee bounced, or was forced from the opening about 3 feet, and struck appellee in the head, necessitating the removal of one eye, and causing the impairment of the vision of the other.

It is first contended by appellant that there is no negligence charged in the declaration. In other words, appellant contends that the wedge furnished by it for said work was a proper wedge and that the manner of breaking down or removing said disc from said shaft adopted by it was a proper and practical method. On the other hand, appellee insists there should have been a handle attached to said wedge in order that when struck the same would not bound or fly so as to endanger those doing said work.

It was further insisted by appellee that a series of holes should have been drilled in said disc so that the same could have been more easily broken down and removed, and that another feasible and practical way to have removed the same would have been to have used an acetylene device for said purpose. The evidence was conflicting as to whether the furnishing of wedges without handles amounted to negligence.

The evidence on the part of appellee tends to show that the furnishing of wedges without handles, especially in view of the elasticity of the metal sought to be broken down, was negligence. On the other hand, the evidence on the part of appellant tended to show that if handles had been attached to said wedges, the jar or sting would have been so severe that it would have been hard to hold the same, and also that there would be danger in the sledge hitting the handle at times instead of the wedge. We think, however, there was sufficient evidence to warrant the court in finding that appellant was negligent in not using due care to furnish reasonably safe tools or appliances for the work in question. At any. rate, the finding of the court thereon is not against the manifest weight of the evidence and we should, therefore, not disturb the judgment for said reason alone.

It is next contended by appellant that even though it should be held guilty of negligence. as charged in the declaration, and notwithstanding appellant had elected not to pay compensation under the Workmen’s Compensation Act, the defenses of assumed risk, fellow-servant and contributory negligence would not be taken away from it for the reason it is contended that appellee was not engaged in an extrahazardous employment as contemplated by the Workmen’s Compensation Law. In other words, that the employment of appellee at the time he was injured would not come within the term “mining” as contemplated by the statute.

Section 2 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. 5475(2)], approved June 28, 1913, in force July 1, 1913, provides, among other things, that: “Every employer enumerated in section 3, paragraph (b) shall be conclusively presumed to have filed notice of his election as provided in section 1, paragraph (a), and to have elected to provide and pay compensation according to the provisions of. this act, unless and until notice in writing of his election to the contrary is filed with the Industrial Board and unless and until the employer shall either furnish to his employee personally or post at a conspicuous place in the plant, shop, office, room or place where such employee is to be employed, a copy of said notice of election not to provide and pay compensation according to the provisions of this act.”

Paragraph (b) of section 3 [Callaghan’s 1916 St. Snpp. ft 5475(3) (b)] provides: “The provisions of paragraph (a) of this section shall only apply to an employer engaged in any of the following occupations, enterprises or businesses, namely:” among others, mining, surface mining or quarrying.

. In determining whether or not a person has received an injury arising out of and in the course of his employment, the Supreme Court has not adopted a strict construction of the Compensation Act but h°s held that if the occupation in which the injured person was engaged could reasonably be referable to the principal work engaged in by the employer that construction should be adopted, and if the employer was engaged in an extrahazardous employment, as contemplated by the statute as above set forth, the injured person should be held to be within the provisions of the statute and the defenses of assumed risk, contributory negligence and fellow-servant would not be available to the employer. Armour & Co. v. Industrial Board of Illinois, 273 Ill. 590; Parker-WasMngton Co. v. Industrial Board of Illinois, 274 Ill. 498; Suburban Ice Co. v. Industrial Board of Illinois, 274 Ill. 630; Gibson v. Industrial Board of Illinois, 276 Ill. 73.

' In this case it was stipulated on the hearing that appellant had elected not to be bound or pay compensation under the Workmen’s Compensation Act. It is therefore only necessary for us to determine as to whether or not appellee was engaged or employed in and about the business of appellant in its mining operations. In Gibson v. Industrial Board of Illinois, supra, the employer was engaged in an enterprise where inflammable products were stored and conveyed in dangerous quantities. It was held, however, that in order to come within the act that the person injured need not at the time have been actually handling or conveying the inflammable product. The court at page 75 says: “It is practically conceded by counsel for plaintiffs in error that the act would apply if the deceased had met his death because of a fire or explosion of the highly inflammable and explosive materials he was handling in the course of his occupation. It is contended, however, that the exact occupation of the deceased and his duties in connection therewith were not such as properly come under the act, and it is argued that the duties of the deceased in driving the oil wagon were no different and the dangers no greater than they would have been in driving any kind of a loaded wagon; that there was no danger of an explosion under such circumstances, and that the mere fact that he was engaged in transporting gasoline and coal oil in a large tank wagon from one place to another did not necessarily bring him in the occupation of handling dangerous explosives in large quantities. It is not argued that the classification made by the legislature is unconstitutional or unreasonable. It is true that the accident from which the deceased came to his death did not result from the nature of the product which he carried, and, as contended by counsel for plaintiffs in error, the same accident might have happened if he had been hauling a. load of farm products or any other commodity. There is no question but that he was habitually employed, and had been for several months, in driving one of the oil wagons of plaintiffs in error. In Armour & Co. v. Industrial Board of Illinois, 273 Ill. 590, while the exact point raised in this case was not raised or decided, we affirmed the judgment of the Circuit Court of Cook county affirming a finding and award of the Industrial Board awarding compensation to the widow of a teamster, an employee of the Armour Packing Company, who had died as a result of injuries received from falling from his wagon while delivering goods of his employer. In Parker-Washington Co. v. Industrial Board of Illinois, 274 Ill. 498, it was held where a teamster employed by a teaming company which had contracted to deliver a quantity of crushed stone to a contracting company engaged in street paving, while standing up and reaching over to whip the horses he was driving lost his balance and fell under the wheels of the wagon and was killed, that the employer was liable under the Workmen’s Compensation Act. In Suburban Ice Co. v. Industrial Board of Illinois, 274 Ill. 630, we held that where a teamster employed by an ice and fuel company, whose duty it was to deliver ice and fuel and work in and around the place and care for the horses of the company, was kicked by one of the horses and died from the effects thereof, his widow and administratrix could recover under the .provisions of the Workmen’s Compensation Act. * * * We think the occupation of the deceased was sufficiently connected with the extrahazardous business of the plaintiffs in error, and such business being under the act, his widow was entitled to recover under its provisions.”

In view of the holding of the Supreme Court in the above-mentioned case, we are of the opinion that appellee was at the time of receiving his injury engaged in the extrahazardous employment of mining as contemplated by the statute. The hoisting engine being repaired was an engine used for lifting the coal at appellant’s mine, and the evidence tended to show that the mining operations at that point were tied up by reason of the break in this disc and that appellee at the very time of receiving his injury was employed in the business of repairing said engine in order that said mining operations could be resumed. His injuries occurred in the course of and grew out of his employment in and about the mining business conducted by appellant, and the defenses of contributory negligence, assumed risk and fellow-servant were therefore not available to appellant.

It is next contended by appellant that even if the employment of appellee be held to be extralmardous under the Compensation Law, it does not deprive appellant of the defense that the employee assumed the risk and dangers of which he knew of, or which he ought to have known by the exercise of ordinary care. Without going into a discussion of the point raised by appellant, it is only necessary for us to say that so far as the defense of assumed risk is involved in this proceeding, it is taken away by the provisions of the Compensation Act.

It is next contended by appellant that the court erred in its rulings on the evidence, it being the 'contention of appellant that the witness, C. P. Born, who testified as an expert on behalf of appellee, was not properly qualified as such for the reason that he had not had anything to do with cutting steel. The evidence, however, discloses that this man had worked in appellant’s mine for some 14 years and had had more or less experience during that time in connection with the work of machinist. He was therefore qualified to give testimony in regard to the question involved, the character of his experience going only to the credibility and weight to be given his testimony.

Lastly, it is contended by appellant that the court erred in its rulings on the propositions of law submitted by it. Propositions Nos. 1 to 5 inclusive, refused by the court, are general in character and are to the effect that appellee cannot recover on his declaration or on certain counts of the declaration or that appellant was not guilty of negligence charged in the declaration. Propositions 6, 7, 8, 9, 10, 11, 12 and 13 were all based on the assumption that the defenses of assumed risk, contributory negligence and fellow-servant were not taken away by the Workmen’s Compensation Act and are sufficiently disposed of by what we have already said. The court therefore did not err in refusing to hold appellant’s propositions 1 to 13 inclusive.

Proposition No. 14 is as follows: “That if the use of the chisel which was used by plaintiff in the work in question was proper and such chisel was a usual, customary and proper instrument to be used in such work, then the plaintiff cannot recover in this case.” This proposition was refused as tendered but was modified so as to read as follows: “That if the use of the wedge which was used by plaintiff, in the manner in which it was used in the work in question was proper, and such wedge, as used, was a usual, customary and proper instrument to be used in such work, then the plaintiff cannot recover in this case.” The court did not err in modifying said proposition and in holding it as so modified.

Proposition No. 16 is as follows: “That if the defendant exercised reasonable care in choosing reasonably safe tools and instruments to do the 'work in question and in using the wedges in question for the purposes for which they were used, and that in using the same the defendant could not reasonably anticipate that a person using the wedge would be injured as plaintiff was injured, then the. plaintiff cannot recover.” The fault with this proposition is, it limits the manner in which appellee was injured while it should have been broad enough to include injuries from its use in and about said work generally.

Finding no reversible error in the record the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    Arthur H. Foote et al., Trustees, Appellants, v. Horatio J. Bowman and Horatio J. Bowman, Trustee, Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 732*—when foreign may sue to collect subscription to stock. The courts of this State have jurisdiction to entertain a bill for an accounting for an unpaid balance due on a subscription for stock in a foreign corporation.
    2. Corporations, § 766

      —when contention that burden is on subscriber to stock under foreign law to prove full payment is untenable. On a bill for an accounting for the unpaid balance due on the stock of a foreign corporation, complainants’ contention that under the law of the state of incorporation the burden was upon defendants to prove that the stock had heen fully paid is untenable, where the bill did not set out the provisions of the for- . eign law relied upon.

      Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Bill for an accounting by Arthur H. Foote, Edwin I. Hyke and Charles B. Laws, trustees in bankruptcy of the estate of Bryant, Gore & Bowman Sales Company, complainants, against Horatio J. Bowman, individually and as trustee of the estate of S. Byder, defendants. From a decree dismissing the bill for want of equity, complainants appeal.
    Grant & Grant and Williamson, Burroughs & Btder, for appellants.
    J. Y. E.. Marsh, for appellees.

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

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

3. Corporations, § 124*—what may he used in payment for stock. The good will of a corporation may have a money value which may be used in payment of corporate stock of another company to the extent of its value.

4. Witnesses, § 224*—what is proper cross-examination. Where the testimony in chief of a witness related to the assets of a corporation and as to whether or not they were increasing or diminishing in value as the business was being conducted, cross-examination as to the number of customers, the profits of the business, the standing of the corporation among its creditors and the reasons for its financial embarrassment, was warranted.

5. Corporations, § 124 —when shown that stock was fully paid for hy transfer of assets of another corporation. On a bill for an accounting for an unpaid balance alleged to be due on the stock of a foreign corporation, defendants’ claim that the stock had been fully paid for by the transfer of the assets of another corporation, held to have been sustained as against complainants’ contention that half the value of the assets transferred consisted in the good will of the old corporation, which as a matter of fact had no value at all, the old corporation having paid no dividends for a period of 10 or 12 years; it being shown that the good will was a valuable asset, the old corporation having during that period carried on a large and profitable business, and having a high standing among its creditors, having been prevented from paying dividends by entering into an onerous lease which imposed a greatly increased and excessive rental.

Higbee, J., dissenting.'


text:
    David B. Crews, Appellee, v. Michael H. Cronk and Amy A. Cronk, Appellants.
    (Not to be reported in fall.)
    Abstract of the Decision.

      Mortgages—when defense that consideration of mortgage was based upon unfulfilled collateral agreement with vendor is unavailable. On a bill to foreclose a mortgage given to secure the purchase price of certain lands purchased by defendants from complainant’s assignor, defendants’ contention that the consideration of the mortgage was based upon a collateral agreement with the vendor which the latter had failed to carry out is not available where the evidence shows that one of the defendants thereafter released and discharged the vendor from the obligations imposed by such collateral agreement.
    Appeal from the Circuit Court of Effingham county; the Hon. William B. Wright, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Bill by David B. Clews, complainant, against Michael H. Cronk and Amy A. Cronk, defendants, to foreclose a mortgage given to complainant’s assignor. From a decree in favor of complainant, defendants appeal.
    See also, Cronk v. Thomas F. Lee Land Co., post, p. 634, a related case.
    Gr. F. Taylor and W. S. Holmes, for appellants.
    B. C. Harrah and Paul Taylor, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.


text:
    M. H. Cronk, Plaintiff in Error, v. Thomas F. Lee Land Company et al., Defendants in Error.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Contracts, § 256

      —when verbal promises and agreements are merged in written contract. In the absence of fraud, verbal promises and agreements made during negotiations leading up to the execution of a written contract become merged in the written contract
    Error to the Circuit Court of Effingham county; the Hon. William B. Wright, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Bill for specific performance by M. H. Cronk, complainant, against the Thomas F. Lee Land Company, H. T. Witwer, S. A. Eskew and D. B. Crews, defendants. From a decree dismissing the bill for want of equity; complainant brings error.
    See also, Crews v. Cronk, ante, p. 633, a related case.
    G-. F. Taylor and W. S. Holmes, for plaintiff in error.
    Jacob Zimmerman and Byron Piper, for defendants in error H. T. Witwer and S. A. Eskew.
    B. C. Harrah and Paul Taylor, for defendant in error D. B. Crews.

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

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

2. Vendor and purchaser—what is binding contract for resale of land for purchaser. A contract between representatives of the vendor of land and the purchaser after the execution of the contract of purchase, in which such representatives agree to use their best efforts to resell the land within a certain period, such purchaser to share in the profits, if any, and failing in their efforts to sell within such period to take the land off the purchaser’s hands, to refund the portion of the purchase price represented by a mortgage given by the purchaser to the vendor, and to assume his- obligations under the contract with the vendor, constitutes a valid and binding contract.

3. Vendor and purchaser—when release of vendor from contract for resale of land shown. On a bill for specific performance, evidence held sufficient to sustain the chancellor’s findings that complainant had released and discharged defendants from all obligation under a contract wherein they agreed to resell certain land for complainant within a specified time, and failing in that to take the land off his hands and to assume his obligations, after reimbursing him to the extent of the security given by him for the purchase price.

4. Evidence, § 364 —-what may be shown by parol. A release or discharge from an obligation under a contract to sell land may be shown by parol.