text:
    Erwin Goodwin, Executor, Appellee, v. The New Church Board of Publication, Appellant.
    Gen. No. 5436.
    1. Wills—what does not avoid bequest. A mistake in the name or description of a legatee will not render a bequest void if the name and description used in the will as applied to the facts and circumstances proved will identify such person or corporation from all others. It is therefore competent for the claimants of a bequest to prove their corporate existence and the objects and purposes for which they were organized, the knowledge the testatrix had of them and her feelings toward and relations with them and the name or names by which she or others were accustomed to designate them; that no other corporations, associations or societies corresponded to the description given in the will at the time it was executed, her family, church and social relations, and every fact and circumstance surrounding her and the claimants that would aid the court in reaching a conclusion as to her motives and purposes in using the name in the will in question.
    2. Wills—what not competent to establish claimant as beneficiary named in will. If the beneficiary intended to be named by the testatrix is uncertain, testimony offered which purports merely to express the declarations, wishes or intentions of the testatrix is incompetent.

      3. Wills—what competent to establish claimant as beneficiary named in will. Statements of the testatrix testified to by the scrivener are competent where they are not statements of her wishes or intentions as to the disposition of the bequest, if they tend to identify the object of the bounty.
    Bill to contrue will. Appeal from the Circuit Court of Kane county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 16, 1911.
    Statement by the Court. This is a bill filed by Erwin Goodwin, executor of Kate M. Bitchey, deceased, for the purpose of obtaining a construction of her will, which was admitted to probate. The will after making certain bequests provides in the fourth item:
    “If after all the above bequests have been made there is one thousand dollars left, it is my wish that it be given to the New Jerusalem Church Association, the headquarters of which are in the City of New York. If there should be any further balance I wish it to be divided among the children of my brothers and sisters, share and share alike.”
    The bill alleges that all prior bequests have been paid and there are ample funds to pay the bequest of $1,000, and alleges there is no association or corporation in existence known as the New Jerusalem Church Association, the headquarters of which are in the city of New York, and that the bequest is claimed by various corporations, who are made parties defendant, among them the New Church Board of Publication. The bill also alleges that the money now in the executor’s possession is claimed by the children of the brothers and sisters of the testatrix for the reason that the bequest of the $1,000 is void for uncertainty. All parties interested are made parties defendant and the prayer of the bill is that the court determine to whom the bequest of $1,000 is to be paid. Summons was duly issued and returned. An affidavit showing that certain defendants are non-resident, or on due inquiry cannot be found was filed, and notice was given by publication under the statute.
    Various defendants filed answers, among them the New Church Board of Publication, which answers that it is an association of the New Jerusalem Church duly incorporated for benevolent and charitable purposes and that its headquarters are in the city of New York; that it was formed at the instance of certain members of a religious body known as the General Convention of the New Jerusalem of the United States of America, for the furtherance of religious opinion by publication and distribution of books, etc., more especially the writings of Emanuel Swedenborg; that this defendant is informed and believes it to be true that there is no association of corporation known or bearing the name of the New Jerusalem Church Association, the headquarters of which are in the city of New York, and that this defendant is the association to whom the decedent intended the legacy of $1,000 to be paid. The answer states that it is an answer and a cross bill, makes certain parties defendants, and prays that the executor be decreed to pay the legacy to it.
    The Society of the New Church signified by the New Jerusalem in the city of New York, the American Swedenborg Printing and Publishing Society, the New York Association of the New Church, the Charity Fund of the New York Association, and other associations, filed answers similar to the answer of the New Church Board of Publication, each insisting that it answered the description of the beneficiary in the will. An order was made that such answers be considered also as cross bills and that the defendants thereto answer the same by a certain time. An order of default was entered against “The New Jerusalem Church .Association the headquarters of which are in the city of New York.” Answers were filed to the cross bills by the other defendants who appeared and replications filed to all answers. The evidence was heard in open court and a decree 'was entered finding that there is no corporation or association having the name “The New Jerusalem Church Association, the headquarters of which are in the city of New York,” and that from the proofs adduced it is not possible to determine whom the testatrix intended as a legatee by the language of the fourth line of the will, and decreeing such bequest to be void for uncertainty, dismissing the cross bills and decreeing that the $1,000 be distributed among the nephews and nieces of the testatrix. Appeals were severally prayed by the various defendant associations belonging to the Church of the New Jerusalem, but the New Church Board of Publication is the only party that prosecutes an appeal.
    Clark Scammon Reed, for appellant; James M. Gwin, of counsel.
    Martin & Martin, John T. White and James A. Brat, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

The chancellor admitted all evidence offered by appellant on the trial, holding however that the evidence of the scrivener as to what was said by the testatrix in directing the preparation of the will, presented on behalf of appellant as tending to show who was intended by the uncertain description of the beneficiary, was not competent, but the evidence was heard subject to objection. No evidence offered by the appellee was admitted to which any objection was made. The only questions for the determination of this court are (1) whether the directions and conversations with the scrivener at the time the will was prepared are competent evidence, and (2) does the competent evidence show that the appellant is the beneficiary intended by the testatrix to receive the $1,000 legacy.

The pleadings and the proof show that there is no association or corporation in the New Chnrch known as “The New Jerusalem Church Association, the headquarters of which are in the city of New York.” There is nothing in the title “The New Jerusalem Church Association” to show whether the testatrix intended to make the gift to a society engaged in preaching, in missionary work, in building church edifices, in publishing church books and papers, or in defraying other expenses of that denomination. The proof shows that the husband of the testatrix had been a member of the New Jerusalem Church; that a preacher named Mercer had occasionally preached in the vicinity where testatrix and her husband lived, and that testatrix took a paper published under the auspices of that church; there was proof also concerning the work performed by the various religious bodies made defendant. This evidence was all competent, but none of it tends in the slightest degree to show where the testatrix intended the money to go, and was equally applicable to the nine different church associations of the New Church that were made defendants.

It was not shown that the testatrix had ever manifested any particular interest in any of these associations, or that she was familiar with the work of any of them, except as might be inferred from the fact that she took some paper published by one of them.

She was very ill when this will was prepared, and was not at her home, but in another town. The scrivener, a justice of the peace, who drew the will, testified to the conversations and directions of the testatrix as to whom she desired to have this money; that she did not have a recollection of the name of the association to which she wished it given; that if she were at home where she could see her papers she could determine the name. Under the pressure of leading questions he said it related to the publication of works concerning the New Church or Church of the New Jerusalem and that it had an advertisement in her paper. He thought she said the name of the paper was “The Messenger” or “The Church Messenger” or some such paper. “It was a Christian Church paper that she had at home. Of course I know that was the name of it, but whether she told me that I couldn’t say.” “The place she stated it to go to in New York City was advertised in her church paper that she had at her home in Ritchey, and which I think she said was the Messenger. I won’t say positive whether she said so or not, but I know that was the name of it.” It was proved by another witness that there is a paper published by the Church of the New Jerusalem called either “New Jerusalem Messenger” or the “New Church Messenger.” A copy of the “New Church Messenger,” a title different from either testified to by the scrivener, issued June 24, 1908, was introduced in evidence. It contained an advertisement of The New Church Board of Publication, which gave the names and prices of a number. of theological works relating to the teaching of Swedenborg, which had appeared from the organization of that board to the time of the hearing. It was also shown that The New Church Board of Publication is the only publishing body directly connected with the General Convention of the Church of the New Jerusalem, and that there is another association, the American Swedenborg Printing and Publishing Society, which issues publications principally confined to the writings of Swedenborg, and that it did not report to the General Convention. No proof was made as to what church paper was taken by the testatrix in her lifetime, nor any paper produced that was found in her home, neither was there any proof as to any paper she had ever subscribed for, or that any paper had ever been sent to her, but only the evidence that she told the scrivener that she had a paper in her home.

A mistake in the name or description of a legatee will not render a bequest void, if the name and description used in the will as applied to the facts and circumstances proved will identify such person or corporation from all others. It was competent for the various claimants to prove their corporate existence and the objects and purposes for which they were organized, the knowledge the testatrix had of them and her feelings toward and relations with them and the name or names by which she or others were accustomed to designate them; that no other corporations, associations or societies corresponded to the description given in the will at the time it was executed; her family, church and social relations, and every fact and circumstance surrounding her and the claimants, that would aid the court in reaching a conclusion as to her motives and purposes in using the name in the will in question. Missionary Society v. Mead, 131 Ill. 338.

"While the wording of the bequest is clear, it appears that there is a latent ambiguity as to who was intended by the testatrix to take the bequest of $1,000. There are several charitable organizations to'whom the name used in the will is equally applicable. “Where the ambiguity is latent it is created by evidence of extrinsic facts, and the same evidence is admissible to remove it. But such evidence is not direct evidence of intention, and, if the rule in relation to the reception of parol evidence to solve latent ambiguities permitted the introduction of such evidence only, it would not require a separate discussion, as it would be synonymous with the rule that extrinsic facts are always admissible to explain the language of the will, regardless of the nature of the ambiguity whether it be patent or latent. The principle goes much further than this. It is not to be confined to the admission of facts appertaining solely to the circumstances of the testator, and which merely tend to show the meaning of his words. Under it evidence showing or suggesting a direct inference or intention as to the things or objects disposed' of in the will including the testator’s declarations of intention uttered at the execution of the will. and, according to some of the cases, subsequently thereto, are received to assist the court in disposing of the latent ambiguity, by showing which of several persons or things answering to the description was intended by the testator. Hence it will be seen that there may be, and usually is, an essential and radical difference between the evidence which raises or creates the ambiguity i. e. proof of extrinsic circumstances of the case, and the evidence which removes or explains it and which may be declarations of the intention of the testator as well as evidence of circumstances.” 2 Underhill on Wills, sec. 910. The acts [and declarations of a testator in relation to the thing granted or the person intended are admissible to remove a latent ambiguity. Bradley v. Bees, 113 Ill. 327; Hoffner v. Custer, 237 Ill. 64; Brownfield v. Brownfield, 12 Pa. St. 136; Morgan v. Burrows, 45 Wis. 211; Ryerss v. Wheeler, 22 Wend. 148; Wigram on Wills, 252; Turner v. Hallowell Sav. Inst., 76 Me. 527; Vandiver v. Vandiver, 115 Ala. 328. But when such testimony is introduced it must be of facts unconnected with any general declaration or wishes expressed by the testator for the disposition of his property. If the testimony offered purports merely to express those declarations, wishes or intentions it is inadmissible. Hoffner v. Custer, supra; Hollenbeck v. Smith, 231 Ill. 484; Brownfield v. Wilson, 78 Ill. 467; Kirkland v. Conway, 116 Ill. 438; Peet v. Peet, 229 Ill. 341; Anderson v. Anderson, 191 Ill. 100; Weatherhead v. Baskerville, 11 How. 329. There is a difference between leaving out the subject-matter of the devise, and inserting something else by mistake, and a case in which the testator showed upon the face of the will what he had in view but imperfectly expressed it. If a latent ambiguity is raised by proof of extrinsic circumstances, evidence is admissible to explain or make certain what the testator has written to give effect to what is expressed in the will. A misnomer or misdescription of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision in -which it is found, if either from the will itself or extrinsic evidence, the object of the testator’s bounty can be ascertained. Missionary Society v. Mead, supra; Missionary Society v. Cadwell, 69 Ill. App. 280; Leonard v. Davenport, 58 How. Pr. 384; University v. Tucker, 31 W. Va. 621; Taylor v. Tolen, 38 N. J. Eq. 91. The statements of the testator testilled to by the scrivener were statements of facts which were not statements of her wishes or intentions as to the disposition of the $1,000 bequest, but of facts unconnected with the disposition of her estate; hence we conclude they were competent evidence, as they simply tended to identify the object of her bounty.

The remaining question is, does the evidence introduced identify the appellant as the beneficiary of the bounty of the testatrix? The evidence shows that there are two publication societies and several other associations in the City of New York, connected with the Church of the New Jerusalem, to which the evidence is equally applicable. There is no evidence that the church paper offered in evidence, which contained the advertisement of appellant, was the paper that was at the residence of the testatrix at Eitchie and hence there is no evidence pointing to appellant as the intended beneficiary more than any of the other associations. The evidence of the scrivener as to what he knew apart from what the testatrix said was not competent evidence for any purpose. The entire evidence leaves it uncertain whom the testatrix intended to be the beneficiary in the will and the court properly found that the appellant could not take under the will.

It is also contended that, the bequest of $1,000 having been found by the court to be void for uncertainty, this sum became intestate estate, and the court erred in decreeing it should be divided under the residuary clause. That is a matter that does not concern appellant, and no cross errors have been assigned by any heir at law; that question is therefore not raised for our determination. The decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Edward S. Keeley, Appellant, v. Elizabeth E. Pope, Appellee.
    Gen. No. 5440.

      Duress—when not established. Held, under tlie evidence in this case, that the payment in question was voluntary and not made under duress.
    Assumpsit. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Charles T. Farson and Stern, Anderson & Davis, for appellant.
    Castle, Williams, Long & Castle, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit, brought by Alexander F. McKeown against Elizabeth E. Pope. Subsequently Edward S. Keeley was substituted as plaintiff. The declaration contains the common counts, to which the plea of the general issue was filed. The case was tried by the court without a jury, and a judgment was rendered in favor of the defendant,, from which the plaintiff prosecutes this appeal.

Appellee owned an irregular shaped tract of land near Libertyville, in Lake county, which had been bought in parcels at different times, and on which a lake was situated. Appellant, who is vice-president of the Chicago, Milwaukee & St. Paul Railroad, desired to buy a farm. The land owned by appellee at one time consisted of about 255 acres, but she had sold to one Slnsser a piece consisting of about thirteen acres, which was separated from the remainder of the farm by a highway. Appellant spoke to one Yager, who was a conductor on the railroad on which appellant was an official, and who traded some in real'estate, in regard to purchasing a farm, and Yager, who was acquainted with the husband of appellee, spoke to him about the farm, asking if it was for sale, but did not tell him who the prospective purchaser was. Pope said it was. Yager reported to one Wiliams, appellant’s secretary, that the farm was for sale at $100 an acre for 255 acres. Appellant then put the matter in charge of A. F. McKeown, a real estate broker in Chicago, and McKeown entered into negotiations for the purchase of the farm as though he was the purchaser. McKeown employed Smith and Wilmot of Waukegan to negotiate for the farm. Smith and Wilmot went and saw appellee and secured the agency to sell the farm, apparently without disclosing that they were acting in the interest of a purchaser. A written contract was secured by which McKeown “agrees to purchase at the price of $22,950 the following described real estate situated in the county of Lake and State of Illinois, to-wit: 255 acres more or less, being parts of sections # # as described in continuation of abstract of title No. 1770 * * * and being shown shaded in red on plat.” The contract is dated January 7, 1907, and recites the payment of $250 earnest money and that the purchaser should pay $6,700 within ten days after the title had been accepted, execute a note for $4,000 and mortgage to the vendor securing the same, and to assume the payment of a $12,000 note secured by a trust deed on the premises. On February 9, 1907, a warranty deed was made and deposited in escrow and $1,250 paid and endorsed on the contract, with an extension of thirty days for the payment of $1,000 and sixty days to pay the balance. Payments of $500 per month from that time to October 4, 1907, are endorsed on the contract. On December 3, 1907, appellant had a survey of the land made which disclosed that the tract contained 241.20 acres; appellant then had another surveyor measure the land and he reported the farm to consist of 241.61 acres. The surveyors did not follow the enclosing fences, which had been there for many years. The $12,000 trust deed matured September 7, 1909. On June 30, 1909, appellant filed a bill against appellee for specific performance, returnable to the October term of the Lake County Circuit Court, which was subsequently dismissed. The foregoing facts are conceded. In August, 1909, appellant tendered $823 and demanded the delivery of the deed, claiming that he had bought 255 acres at $90 an acre and that there was a shortage of 13.39 acres. Appellee refused to accept the tender insisting that the land had not been sold by the acre but for a lump sum. Appellant on August 19, 1909, paid the sum of $2,211.12 under protest, and now insists that $1,387.26 of that sum was paid under duress because the $12,000 trust deed would mature soon after September first and he feared a foreclosure.

One of the issues is, was the land sold by the acre at $90 per acre or for a lump sum*? Yager never talked with appellee, but only with her husband, and testifies that Pope gave him the price as $100 per acre for 255 acres, and that Pope had listed it with him and he expected a commission on a sale. Appellant had no talk with either appellee or her husband regarding the sale. McKeown testifies that he procured Smith and Wilmot to act for him in buying the land; that at his request they went to appellee and got the agency and appellee paid them a commission; that he dickered with Pope, offering $80 and $85 an acre, and that Pope asked $95; that the deal was closed at $90 and that 255 acres was mentioned as the amount of land; that he does not remember ever talking with Pope on any basis except by the acre; that on one occasion when Keeley, Smith, Pope and he were present, Pope did not mention the price or number of acres, but only showed where the boundary lines of the farm were; that he obtained a commission from Pope out of this sale, by a Mr. Eeed, who drew the deed for Pope, getting $250 commission from Pope, and dividing it ■with him. A Mr. Eaton, who says he was present when Pope, Keeley and McKeown were viewing the farm, testifies he ashed McKeown what Pope was ashing, that McKeown replied $100 an acre, and he, Eaton, said it was worth $125, and that Pope was present at the time. Neither Smith nor Wilmot, who apparently were acting as agents for appellee, hut really without the knowledge of appellee were acting for appellant, was called as a witness.

Pope testifies that he never talked with Yager about the sale of the farm to McKeown, but that he may have talked with him about the farm on the train; that he did not tell him there were 255 acres in the farm; that Smith and Wilmot got authority from his wife to sell the farm, and it was priced to them at $25,000, and that he never talked to any of the parties about selling the farm by the acre, and that Smith and Wilmot once reported an offer of $20,000; that when his wife bought it, they understood it contained from 255 to 260 acres, but they had sold a piece of from ten to thirteen acres across the road to Slusser; that Smith and Wilmot finally reported the offer of $22,950 and that he, Pope, never talked with McKeown about the farm until after the contract was closed by Smith and Wilmot.

The evidence was conflicting as to whether the sale was made by the acre or for a lump sum. The contract itself was for a lump sum, and the description of the land is by metes and bounds, with a designation of the number of acres “more or less.” The burden was upon appellant to show the sale was by the acre. The trial court saw the witnesses and could judge of their credibility better than a court that has not had the same opportunities to judge of their truthfulness. The court apparently found that the land was sold for a lump sum, and we cannot say the finding is incorrect.

Appellant’s claim to recover is founded on the theory that the payment on his part was involuntary and made under duress; that the duress consisted in the right of the holder of the trust deed securing the $12,000 note to begin proceedings to foreclose it at the maturity of the note. The trust deed and note were known by McKeown to be in a bank in Libertyville, where payments had been made on it by the agent of appellant, and the appellant had not been able to ascertain that he could not obtain an extension of the trust deed. It is neither shown that he was unable to pay it nor that he did not have ample means to obtain money to pay it. He had known of the shortage for over a year and a half, and that appellee denied that the sale was by the acre. The contract of sale did not contain a forfeiture clause, and there was no pressing necessity for making the payment when it was made, but he might have paid the amount he admitted to be due and litigated the remainder. The evidence all tends to show a voluntary payment and that it was not made under duress. Stover v. Mitchell, 45 Ill. 213; Swanston v. Ijams, 63 Ill. 165; Hart v. Strong, 183 Ill. 349.

It is assigned for error that the court improperly refused to hold several propositions of law and facts as ascertained by appellant. Each proposition refused is a mixed proposition of law and fact. In addition to the propositions of law contained in them, to have held them as requested the court would necessarily have found either that the sale was by the acre or that the payment was made under duress; neither of which propositions was proved to such an extent that we can say the court 'erred in the rulings made. Finding no error the judgment is affirmed.

Affirmed.


text:
    E. W. Leydig, Appellee, v. William M. Glenn, Appellant.
    Gen. No. 5414.

      Verdicts—when set aside as against the evidence. A verdict contrary to the clear preponderance of the evidence will be set aside on review, and in this case the judgment rendered upon such verdict was reversed with a finding of fact.
    Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding. Heard in this court at. the October term, 1910.
    Reversed.
    Opinion filed March 16, 1911.
    Trusdell, Smith & Leech, for appellant.
    Brooks & Brooks, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellee recovered a judgment against appellant for $500 for commissions on a land trade made hy appellant with a Mrs. Baird. The evidence of appellee shows that appellee is a real estate agent at Dixon, Illinois, and appellant is an attorney and resides at Tribune, Kansas. Appellee was the agent for one Hobbs of Pontiac, Hlinois, who owned a section of land near Tribune, Kansas. About December 20, 1904, appellee accompanied Mrs. Baird, who resides near Amboy, and a Mr. Rogers to Tribune, for the purpose of effecting a trade of some land owned by Mrs. Baird in Lee county, Illinois, for the land near Tribune owned by Hobbs. Appellee had a letter from Hobbs introducing him to appellant, and appellant also received a letter from Hobbs by mail asking him to assist appellee in making a trade with Mrs. Baird. Appellee, upon arriving at Tribune, with Mrs. Baird and Rogers, did not find Hobbs in his office. After viewing the land of Hobbs, Leydig obtained a contract from Mrs. Baird, subject to the approval of Hobbs, by which she was to take the Hobbs land on a trade, at a valuation of $1,000 less than Hobbs had authorized. Afterwards appellee took Mrs. Baird to appellant’s office and told appellant that he had made a contract for a trade between the parties. Appellant testified that he told appellee out of the presence of Mrs. Baird, that the Hobbs’ land was priced too high; that he had land that he would sell much cheaper and give appellee $500 and that appellee told appellant that Hobbs was to pay him $500 and Mrs. Baird was to pay him one dollar an acre; that appellee would turn his customer over to appellant and he could show her his land, and if Hobbs should not approve the contract, he would let him know and then appellant could go and look at Mrs. Baird’s land and make a trade and appellant should pay appellee $500.

Appellant’s evidence is that the contract appellee made with Mrs. Baird had not been closed, when they had the conversation at his office, and that appellant told appellee he was imposing on Mrs. Baird by trading to her land at $20 an acre that was not worth over $4; that he would not help him make such a trade; that he had a section of as good land adjoining the Hobbs’ land, that he would trade to Mrs. Baird for her Illinois land, if her land was worth as much as appellee represented, and pay her $2,000 and give appellee $500; that appellee said he was to get $640 from Hobbs for trading his land, and if appellant would keep still, he could make the trade, and appellant said he would keep still, but he would have nothing to do with helping make the Hobbs trade.

The parties returned to Hlinois on December 25, and soon thereafter Hobbs declined to ratify the contract of his agent with Mrs. Baird. Appellee claims he notified appellant by mail of that fact, but appellant denies the receipt of such a letter. On December 28th Mrs. Baird wrote appellant saying that appellee’s principal had failed to approve the contract, and asking appellant to come and see her land and make a trade. On January 2, 1905, appellant wrote Mrs. Baird that he would come during the week of January 16th. On December 28, 1904, appellee wrote appellant: “What proposition can you make on the farm traders I had out there and what comm, can you stand. Let me hear from you at once.”

Appellant did not reply to the letter of appellee, but came to Lee county on the 14th of January, 1905, in response.to Mrs. Baird’s letter, and on the 16th made a trade with her. Appellee does not claim to have negotiated in any way with Mrs. Baird, or to have spoken to her about the trade with appellant, although he sued her and collected a commission from her for that trade, and now seeks a commission from appellant. His testimony is that when he was in Kansas, appellant agreed to pay him a commission of $500 if appellee should trade his land to Mrs. Baird, if the trade with Hobbs should not be approved. On January 16, 1905, appellee wrote to appellant asking him when he could come and see the farm, and offering to take bfm out and show it to him.

On January 21st appellant answered appellee’s letters of December 28 and January 16, and informed him that he had been there two days before his last letter was written, and had closed the deal and telling him that perhaps they could work up some deals, as appellant had other lands in Gfreely county, Kansas, and that if appellee could transact any business of that kind for him he would be very glad. Mrs. Baird testified that she never talked to appellee about appellant’s land before she wrote to appellant; that after appellee and Hobbs came to her place after her return from Kansas, and the deal with Hobbs was off, she wrote to appellant and that she had entered into the contract with appellee for the Hobbs land before she saw appellant at Tribune.

The issue in the case is a question of veracity between appellant and appellee. Appellee testifies that appellant agreed to give Mm $500 if appellant should make a deal with Mrs. Baird. Appellant testifies that what he said to appellee was that the appellee was trading to Mrs. Baird land at $20 an acre that was not worth more than $4 and that he conld trade the same quantity of land for Mrs. Baird’s land, if her land was as good as appellee said it was, and pay Mrs. Baird $2,000 boot money and give appellee $500, and that appellant’s reply was, that he was to get $640 from Hobbs and if appellant would keep still he could make the Hobbs trade, and appellant said he would not interfere. If appellee had a contract with appellant by which he was to receive $500 he has made no explanation of his letter of December 28th in which he asks appellant for a proposition on the farm traders and the amount of commission appellant could stand. The circumstances all corroborate appellant and the letter written by appellee asking what commission appellant would pay is such an impeachment of his testimony that he had a contract for $500 commission that his evidence is rendered unworthy of credit. The clear preponderance of the evidence shows that appellee had no such contract as he claims and he does not seek to recover upon any other theory. The judgment is therefore reversed.

Reversed.

Finding op Fact : The appellee had no contract for commissions with appellant.


text:
    James Butler et al., Appellants, v. Cyrus Bocock, Administrator, Appellee.
    Gen. No. 5417.
    1. Executors and administrators—powers of administrator with will annexed. An administrator with the will annexed succeeds to the duties and powers of the executor which result from the nature of his office as executor but not to those in the nature of a personal trust or confidence.
    2. Executors and administrators—liability for expenses incurred in defending against gttack upon will. It is the duty of an executor to defend the will which appoints him in the first court in which it is assailed and until it has been adjudged invalid by some court. If he acts in good faith and not from motives of personal interest, or in the interest of part of the devisees, and is not charged with fraud or undue influence in procuring the will, then the costs and reasonable expenses incurred in making such defense should be borne by the estate and not by the executor personally.
    3. Practice—when propositions of law not required. In a proceeding to contest an administrator’s report the parties are not entitled to a trial by a jury and the presentation of propositions of law in such a case is not proper.
    Objections to administrator’s report. Appeal from the Circuit Court of Stark county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Statement by the Court. Thomas Butler died leaving a last will, which was duly admitted to probate. The executors named in the will refused to qualify, and Cyrus Bocock was appointed administrator with the will annexed. The will gave certain legacies amounting to $1,700 to certain minor nephews and nieces, and gave to James Butler, a son of the testator, the remainder of the personal estate, and devised to his said son the use of all his real estate during his life, subject to the control of a committee, with remainder to the heirs of the body of James living at his death, and if James should die leaving no heirs of his body, then the real estate to be divided amongst the heirs of the testator. The estate consisted of real estate valued at $16,000 and about $4,000 of personal estate that was known. The administrator discovered about $1,200 of personal estate that had been concealed or diverted, and collected it by means of a citation.
    About six months after the probate of the will, J ames Butler filed a bill to contest the will, alleging a want of testamentary capacity and undue influence of one of the parties named as executor. The executors named in the will, although they had refused to qualify, were made defendants. The administrator with the will annexed had no personal interest in the matter, but consulted counsel and was advised that the will having been probated it was his duty to defend it. Thereupon the administrator employed counsel to defend the bill. On a trial in the Circuit Court the will was set aside. The administrator with the will annexed thereafter on April 4, 1910, filed in the Probate Court a statement showing receipts and disbursements. At the close of the report is the statement addressed to the county judge, signed by the administrator with the will annexed, “I hand you this report of receipts and expenditures, a part of which have been paid and a part has not been paid;” and it asked for an order to pay the creditors in full and the balance to the heir. Attached to the account is an itemized bill of J. A. Bennick amounting to $807 receipted in full March 31, 1910, This bill is composed of several items, among which are services in citation of James T. Fitzgerald (from whom the $1,200 was collected) $100, services in will contest, $600, and other minor expenses and charges in the will contest. James Butler, as heir at law of the deceased, appeared and filed objections to the approval of the claims of Bennick, the guardian ad litem fees which had been fixed by the Circuit Court in the will contest, the witness fees in the will contest, the allowanee of any commissions to the administrator with the will annexed, and to some other minor items. The Probate Court found that the statement was not a report, for the reason that the statement of expenditures did not show what were paid and what were unpaid, and treated the statement as a petition for distribution.
    The objections to the claims of Eennick, the guardian ad litem fees and the witness fees were overruled. The objection to another claim not now in controversy was sustained. The objection to the commissions claimed by the administrator with the will annexed was not passed upon but judgment was reserved on that question until the final report in the estate should be presented. Butler as an heir appealed from the order of the Probate Court to the Circuit Court. In the Circuit Court, James Butler, administrator of the estate of Thomas Butler, deceased, filed a motion stating he had been appointed administrator since taking the appeal, and asking that he be permitted to prosecute the appeal. This motion does not appear to have been passed upon. On the hearing in the Circuit Court, the objections overruled by the Probate Court were again overruled; and James Butler appeals to this court as heir at law and administrator of the deceased.
    Kerns & Fling, for appellants.
    J. H. Rennick, J. A. Weiland and W. W. Wright, Jr., for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

The items in the report of the administrator with the will annexed objected to, and to which objections were overruled, relate to sums paid or liabilities incurred by the administrator with the will annexed, for the services of counsel in defending the suit to contest the will, and to the fees allowed to the guardian ad litem in the Circuit Court, and to witness fees and expenses incurred in that suit. No question is raised as to the reasonableness of any of such charges, fees or expenses. Appellants’ only contentions are (1) that an executor or administrator who defends a will contest unsuccessfully, must, himself, bear all the expenses of the litigation, including solicitor’s fees, witness fees, costs and other expenses; (2) that the decree in the will contest, that the defendants pay the costs, is decisive against the administrator with the will annexed.

An administrator with the will annexed succeeds to the duties and powers of the executor which result from the nature of his office as executor but not to those in the nature of a personal trust or confidence.. Penn, Trustee, v. Fogler, 182 Ill. 76; Hall v. Irwin, 2 Gilm. 176; Leslie v. Moser, 163 Ill. 502; 1 Williams on Executors, 563; 1 Woerner on Administrators, 178. We regard the rule in this state as well settled that it is the duty of an executor and also of an administrator with the will annexed to defend the will in the first court where it is assailed, and he must defend the will until it is once adjudged that it is invalid. He is a necessary party to such suit in his representative capacity. It is his duty to defend the will. If he acts in good faith and not from motives of personal interest, or in the interest of part of the devisees, and is not charged with fraud or undue influence in procuring the will, then the costs and reasonable expenses incurred in making such defense should be borne by the estate. Pingree v. Jones, 80 Ill. 177; Godfrey v. Phillips, 209 Ill. 591. Upon an examination of the cases cited as holding otherwise and modifying to a certain extent the rule announced in the Pingree case, it will appear that expenses and costs have only been taxed against executors, when they prosecuted will contests after the will had been set aside in a trial court, or where the executors were charged with bad faith or had a personal interest to defend. In such cases the courts properly refuse to make an allowance for their costs and expenses. If, however, in the first court there is a decree setting aside the will, and the executor appeals to a higher court, he takes the risk of the costs and expenses of the additional litigation, and if he is unsuccessful he must personally pay that additional cost and expenses. In the case at bar all the devisees except the contestant were minors. There was no interested defendant legally capable to indemnify the administrator with the will annexed. If an administrator with the will annexed or an executor, notwithstanding his legal duty, is not authorized to employ counsel at the expense of the estate to defend the trust, and the court cannot tax a guardian ad litem fee against the estate, the result is that the purported will of the testator concerning the disposition of his estate cannot have a reasonable defense, but must depend on a volunteer for its defense. There is no claim of bad faith on the part of the administrator, and no good reason appears why the estate should not pay the costs and expenses of the will contest. The will having been admitted to probate the reasonable rule is that the estate should pay the costs and reasonable expenses in the first court in which a contest is made.

The second contention of appellant is that the decree that the defendants in the will contest pay the guardian ad litem fee and the costs, is decisive against appellee. The guardian ad litem fee is a part of the costs. The decree is not against Cyrus Bocock personally, but is against him in his representative capacity. The decree, being against ‘ ‘ Cyrus Bocock, administrator with the will annexed,” is a decree against the estate for costs. Nothing in the decree indicates that he is required to pay the costs personally.

It is also contended that the court erred in refusing to pass upon certain propositions of law submitted by appellant. In a proceeding to contest an administrator’s report the parties are not entitled to a trial by jury, and the presentation of propositions of law in such a case is not proper. Martin v. Martin, 170 Ill. 18; Herman v. Pardridge, 79 Ill. 471; Kempton v. Funk, 139 Ill. App. 387. The court did not err in refusing to pass on the propositions. Finding no error the judgment is affirmed.

Affirmed.


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    Fred S. Douglas et al., Appellees, v. Aurora Daily News Company et al., Appellants.
    Gen. No. 5423.
    1. Corporations—when restriction upon transfer invalid. A clause in a certificate of stock to the effect that it is transferable only to some person first approved by the board of directors of the corporation issuing it, is an illegal restriction upon the right of a stockholder to transfer his stock and one which a corporation has no right to make.
    2. Corporations—when option to re-purchase stock valid. An option expressed upon the face of a certificate giving to the corporation the right of re-purchase upon certain terms, is valid where no right of creditors is affected, and a person acquiring such a certificate obtains no greater rights than the party had to whom it was originally issued.
    3. Pleading-—when demurrer not carried hack. A demurrer will not be carried back to a pleading to which a demurrer has already been filed and overruled.
    Mandamus. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    Statement by tbe Court. This is a petition for a writ of mandamus filed by Fred S. Douglas and I. C. Copley by which they seek to compel the Aurora Daily News Company, a corporation, M. E. Plain, secretary of the corporation, and L. B. Frazier, president of the corporation, to transfer two shares of the capital stock of the corporation of the par value of $100 each, from Fred S. Douglas to I. C. Copley. The petition sets forth that the Aurora Daily News Company is an Illinois corporation; that M. E. Plain is secretary and L. B. Frazier is president of the corporation, and a copy of the original certificate issued to Douglas, dated October 1, 1899. The certificate is to Fred S. Douglas, employe, and contains a clause “if his employment shall cease, the president of the company at his option will then be privileged to buy those shares at six per cent premium,” and a provision “transferable as provided by the by-laws of the corporation, but only to some person first approved by the board of directors.” The petition also sets forth that, on May 22, 1908, Douglas sold and transferred the two shares of stock to I. C. Copley, with a copy of the assignment; that Copley is the sole owner of such stock, and that Douglas has demanded of the respondents that he be permitted to make a transfer of the stock on the books of the corporation to Copley, and that the respondents issue to Copley a certificate of the stock so purchased by him; but that the respondents refuse to recognize such transfer or to issue a new certificate to Copley in lieu of the certificate to Douglas.
    A demurrer to the petition was overruled. The respondents then answered admitting the incorporation and that the officers are as charged in the petition, but denying that Douglas was the owner of the two shares of stock as alleged in the petition. The answer states that the Aurora Daily News Company is, and has been since 1891, a publisher of a daily newspaper in the city of Aurora; that Douglas since 1899, and for many, years prior thereto, was an employe of such company; that it has been the policy of the company to encourage faithful employes by distributing some of its capital stock among them; that in pursuance of that policy in 1899, the company delivered said certificate as a gratuity to Douglas; that the certificate was not delivered to him in his individual right but as an employe, and with the proviso that if the employment of Douglas with the company should cease, then the president of the company at his option had the privilege of taking back such stock from Douglas by paying him the par yalue and six per cent premium; and with the further provision that the stock could not be transferred to any other person than one first approved by the board of directors; that I. C. Copley had become the owner of a rival daily paper, the Aurora Daily Beacon; that Copley boasted he would ruin the circulation and business of the Aurora Daily News; that in pursuance of such threat and purpose he had hired away from the Aurora Daily News some of its trusted employes and among them the petitioner, Douglas; that thereafter the president of the Aurora Daily News, under the option in such certificate, had delivered to Douglas $212 in lawful money, in payment of the two shares of stock and six per cent premium, before he had any notice or knowledge of the alleged transfer to Copley; that the stock thereupon became the property of the president of the Aurora Daily News, and Douglas had no right to transfer it to Copley; that afterwards Douglas returned the money to the office of respondent, where the same has been kept subject to his order; and the answer denies that the stock was assigned to Copley by Douglas on May 22, 1908, and charges that the pretended sale is a fraud upon respondents and a conspiracy on the part of the petitioners with the sole object of harassing and injuring respondents. The answer admits the demand for the transfer of the stock, but states that such demand was made long after the money was tendered to and received by Douglas, and asserts that the stock is the property of the president of the Aurora Daily News Company. A general demurrer to the answer was sustained and the respondents abiding by their answer, judgment was entered that a peremptory writ issue as prayed. The respondents jointly and severally prayed an appeal, and this appeal is prosecuted by the Aurora Daily News Company and Plain, the secretary of the corporation.
    Hopkins, Peppers & Hopkins and John S. Sears, for appellants.
    B. P. Alschuler and R. C. Putnam, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

The clause in the certificate that it was transferable only to some person first approved by the board of directors was an illegal restriction upon the right of a stockholder to transfer his stock and one which the corporation had no right to make; hence the appellants cannot urge any valid defense based upon that provision in the certificate.

The answer alleges that the original certificate was issued to Douglas, an employe of the Aurora Daily News, as a gratuity, with the object of making the employes of the paper feel a personal interest in the welfare of the Company. The acceptance of it by the employe was subject to the conditions expressed on the face of the certificate, so far as they were not contrary to law.

Since the enactment of section 52 of chapter 77 of the Statutes of Hlinois, shares of stock in a corporation partake of the nature of negotiable instruments. A purchaser of stock taking it in good faith and without notice of the rights of other parties, will hold it clear of any lien to the extent of the money advanced. This certificate however gave notice to Copley of the rights of Frazier, the president of the corporation, to repurchase the stock on the terms expressed on its face. Frazier was president of the company both when the stock was issued, when the money was paid to Douglas and when this suit was begun. The option in the certificate was not alone for the benefit of Frazier, the president. While Douglas was an employe he had the right to vote the stock and draw the dividends on it, but upon his employment ceasing, the president of the company, whoever he might be, had the option to resume the ownership of the stock, as president on making the payment expressed. Clearly this provision was for the benefit of the company. It is not against the law for a company acting in good faith to buy and sell its own stock, where no right of creditors is affected. Republic Life Ins. Co. v. Swigert, 135 Ill. 150; First National Bank of Peoria v. Peoria Watch Co., 191 Ill. 128.

Copley, having notice of the option of the president of the company, could obtain no greater rights in the certificate than Douglas possessed. Douglas had no right to retain the stock after the payment to him of the face of the stock with the agreed premium, and had no right to assign the certificate to any one except the president of the company, and Copley could acquire no greater right in the certificate than Douglas possessed.

It is contended on the part of appellants that the court should have carried the demurrer back to the petition and have dismissed the petition. This could not be done for the reason that a demurrer had been overruled to the petition. Heimberger v. Elliot Switch Co., 245 Ill. 448; Fish v. Farwell, 160 Ill. 236; Stearns v. Cope, 109 Ill. 340.

There are some other matters argued by appellants which we do not consider it necessary to discuss, further than to say that the demurrer is general and admits the truth of all facts that are well pleaded.

The judgment is reversed and the cause remanded with instructions to the trial court to overrule the demurrer to the answer.

Reversed and remanded with directions.


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    The Sheffield-King Milling Company, Appellant, v. Edward S. Emerson, Appellee.
    Gen. No. 5426.

      Vebdicts—when not disturbed. The mere fact that upon the second trial of a case there has been a suspicious change in the testimony on a material fact, will not require a reversal.
    Appeal from the County Court of Grundy county; the Hon. Geoege N. Huston, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Cornelius Reardon and Einar Hoidale, for appellant.
    John G. Petteys, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This case was before us at the April term, 1909, when it was reversed because the judgment in favor of the defendant was not sustained by the evidence. The statement of the facts as they appeared from the evidence on the first appeal will be found in Sheffield-King Milling Company v. Emerson, 150 Ill. App. 452. Upon the second trial of the case the boy, Garnett Andrews, the assistant freight agent of the carrier that had the flour in its freight house, testified that Coulahan, the consignee, directed him to go to the bank and get the bill of lading and he would come in the morning and get the flour; that the bill of lading was delivered to him the next morning by the bank, after he told the cashier that the consignee had sent him for it. The consignee on this trial testified he might have sent Andrews for the bill of lading. This evidence shows that the bill of lading was obtained by the boy as the agent of the consignee at his request. The delivery of the bill of lading to the agent of the consignee constituted such a delivery of the flour as would make it liable to the levy under the execution held by appellee. Upon the former trial the boy was not permitted to tell, because of an objection, what the consignee said to him about the bill of lading, although he had said Coulahan had spoken to him about it and he had answered a previous question that no person but his father, the freight agent, had said anything to him about the bill of lading. The consignee on the former trial testified that no person acting for him had got the bill of lading from the bank. The change of testimony on the material fact has a suspicious appearance, but there is no evidence in the record showing that either the appellee or any one representing the judgment creditor, was instrumental in having the boy go for or get the bill of lading. The evidence now showing the title to the flour had passed to the consignee, the judgment is affirmed.

Affirmed.


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    Anna Louise Garrett, Appellee, v. Robert L. Garrett, Appellant.
    Gen. No. 5433.

      Decebes—how must he supported. An order for the payment of solicitor’s fees or for an allowance rendered by way of alimony, must be supported either by evidence preserved in the record or the decree itself must show that evidence was heard and that upon a consideration thereof the court found the facts and the finding from the evidence must be stated in the order or decree.
    Appeal from the Circuit Court of Mercer county; the Hon. Emery C. Gkaves, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed March 16, 1911.
    Church & Church, for appellant.

      W. J. Graham and George W. Werts, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

On May 26, 1910, Anna Louise Garrett presented a petition to the Circuit Court of Mercer county showing that on that day a decree had been entered in her favor granting her a divorce and alimony against Robert L. Garrett, and that Robert L. Garrett had prayed an appeal from that decree. The petition which is verified sets up what her necessities are for her support, but does not contain any showing as to what is necessary for her reasonable solicitor’s fees and suit money.

On the hearing no showing appears to have been made concerning solicitor’s fees or other suit money, and from the decree it would seem that the matter was heard on the petition alone. The court made a decree ordering that appellant pay the sum of $100 to the clerk of the court for complainant’s solicitor’s fees on each appeal perfected from former decrees entered in this cause, on the presentation to the judge of said court of the certificate of evidence for signature ; that the defendant pay $50 per month to complainant as and for alimony from this date until the disposition of said appeal and that on the date of the presentation of the certificate of evidence in this cause to the judge for his signature defendant pay as suit money for the use of complainant the further sum of $100.

The defendant appeals from that decree and assigns for error that the court erred (1) in entering an order for alimony, suit money and solicitor’s fees on the same day a decree for divorce was entered, and (2) that the court erred in fixing the suit money and solicitor’s fees at an unreasonable amount.

The rule is that either evidence to sustain an allowance of this character must be preserved in the record, or the decree itself must show that evidence was heard and upon a consideration thereof the court found the facts, and the findings from the evidence must be stated in the decree. There is neither anything in the petition, nor anything preserved in the certificate of evidence, nor any recital of a finding of facts in the decree from evidence heard concerning either the necessities of complainant as to the suit money or the reasonable value of her solicitor’s fees. The amounts allowed for those matters are not mere nominal sums. The decree must therefore be reversed. Kingman v. Kingman, 150 Ill. App. 462.

The decree for alimony should also have provided that any payments made on this decree as alimony should be allowed as a credit pro tanto on the former decree; otherwise the court was making two allowances for alimony covering the same time. The decree is reversed.

Reversed.


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    Wilhelmina Hansen, Appellee, v. Fletcher L. Crocker et al., Appellants.
    Gen. No. 5442.
    1. Malpractice—when verdict excessive. Held, under the evidence, in such case that a verdict for $6,000 although it was reduced by remittitur to $4,000, for which amount judgment was rendered, was so excessive as to call for a reversal of the judgment.
    2. Appeals and errors—when exception must be preserved. Rulings upon evidence are not subject to review in the absence of exceptions having been preserved thereto.
    3. Instructions—when erroneous in assuming liability. If there are two defendants to an action, one of whom may under the evidence be found guilty and the other not guilty, it is error to give intructions which assume that if one defendant is liable, both are liable.
    Action in case. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    Rehearing denied April 21, 1911.

      Graves & Gibbons and White & Tuesburg, for appellant, Fletcher L. Crocker.
    A. C. Norton and F. A. Ortman, for appellant, Channing W. Barrett.
    R. S. McIlduff and R. B. Thompson, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case brought by Wilhelmina Hansen against Fletcher L. Crocker and Channing W. Barrett to recover damages for malpractice as physicians and surgeons. A verdict was returned in favor of plaintiff for $6,000; the court required the plaintiff to remit $2,000 and judgment was rendered in favor of plaintiff for $4,000. The defendants appeal. The evidence shows that on July 15, 1908, appellee, then about forty-eight years of age, called at the office of Dr. Crocker, in the city of Pontiac, for treatment for a difficulty from which she had suffered and for which she had for several years been treated by other physicians, but her malady had been getting worse and she had been told a surgical operation was necessary. Dr. Crocker examined appellee and found her anemic, run down in health, unable to work and suffering from complicated uterine troubles:—her uterus being enlarged and ulcerated, emitting a foul discharge and protruding so that she could only walk with difficulty,—and the bladder and rectum were involved. Dr. Crocker told her that an operation was necessary, but that he did not do that kind of. operations and suggested that Dr. Barrett of Chicago would perform the operation. On July 20th, Dr. Barrett operated on the appellee in a hospital at Pontiac, removed the diseased uterus, fastened the bladder in its proper position from which it had fallen, closed up the wound with a deep suture and surface stitching, and placed in the wound for drainage a narrow strip of iodoform gauze eighteen inches long which was subsequently removed by Dr. Crocker. Within a week thereafter an abscess formed, in the neighborhood of the wound between the vagina and the rectum, which was lanced by Dr. Crocker. Three days later Dr. Barrett again opened the abscess and put some gauze in it, which it was claimed was afterwards removed by Dr. Crocker. The abscess continued to suppurate and four weeks after the first operation appellee was removed to her home. Appellants continued to visit appellee at her home until October 6th when the abscess having failed to heal, appellants concluded there was some foreign matter in it and advised an exploratory search with an instrument. This appellee refused to submit to. On October 3rd appellee had, without the knowledge of appellants, called in Dr. Boss who examined her and found pus coming from the abscess. A few days later Dr. Boss performed an operation such as appellants claim they desired to do, with a grooved director, enlarging the fistulous opening of the abscess so that it could be examined with the finger. Dr. Boss inserted his finger and discovering a foreign substance took from the body of appellee through the mouth of the abscess two pieces of surgical gauze; one was about six or seven inches square when unfolded, the other about one and a quarter inches square by a quarter of an inch thick. Soon thereafter the abscess healed and appellee began to get well; she gained in weight and strength, and was able to attend church by the middle of November. Appellee’s cause of action is based on the theory that these pieces of gauze, removed from her by Dr. Boss through the abscess, were negligently and carelessly by some oversight left in her body by appellants at the time of the operation for the removal of the uterus, while appellants contend they got there through the outlet of the abscess in some way. The evidence shows that appellee since the operation made a trip to Sweden alone, is in reasonable health, has gained much in weight, but complains of some tenderness in the locality of the operation.

For the purposes of this opinion it will be assumed that there is evidence from which the jury could find that the gauze was left in the body of appellee by the surgeons or one of them. There is however no evidence justifying punitive damages. It is true that appellee suffered more or less pain from the abscess and the operations attending it, for three months, but there is nothing showing permanent injury to appellee. The evidence does show that from a very short period after the removal of the gauze by Dr. Ross her bodily health has been much better than it was for a long time prior to the surgical operation performed by appellants or one of them. The verdict of $6,000 from which appellee remitted $2,000 was excessive and very much larger than a reasonable compensation for any damages sustained by her and shows that the jury were actuated by passion or prejudice. Appellee may not be as strong and vigorous as she was before she was afflicted with this disease of the uterus, but the depletion of her vital power by her disease can neither be attributed to, nor recovered for from these physicians.

Appellants have presented for our consideration a ruling of the court on the admissibility of certain evidence; the propriety of an instruction given by the court as to the form of the verdict and the modification of certain instructions requested by appellants. The record contains no exceptions to the action of the court upon any of these questions, hence the questions are not saved for review.

Some of the instructions given for appellee, however, rather assume that if one defendant is liable the other is. Even if one of the defendants is guilty of negligence still it may be a serious question whether both are liable. The court should not in the form of the verdict given on its own motion have directed the jury, “If you find in favor of plaintiff then for verdict say: We the jury find the defendants guilty, and assess plaintiff’s damages at--Dollars.” Adams v. Jurich, post, p. 522.

The jury should not have been instructed that they might find one guilty and the other not, and have been given a form suitable for such finding.

The judgment is reversed because it is excessive and cannot be sustained for such a large amount on the evidence, and the cause is remanded for a new trial.

Reversed and remanded.


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    William H. Payson, Jr., Appellee, v. Village of Milan, Appellant.
    Gen. No. 5444.
    1. Appeals and errors—effect of former decision. The decision of the Appellate Court upon one appeal becomes the law of the case in all subsequent appeals.
    2. Instructions—when need not sum up all issues. If an instruction does not conclude with a direction that the jury shall find one way or the other, it need not sum up all the issues in the cause. '
    Action in case. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Searle & Marshall, for appellant.
    J. T. & S. R. Kenworthy and Thomas J. Welch, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

William H. Payson, Jr., brought suit against the village of Milan to recover damages averred to have resulted to the land of plaintiff by the construction of a levee and ditch by the federal authorities upon and along Water street in said village in front of his land, whereby water was confined upon his land and his right of ingress and egress impeded. On the first trial a verdict was returned in favor of the defendant on which judgment was rendered. Upon an appeal by the plaintiff, this court reversed and remanded the case because of the refusal of the trial court to admit in evidence a certain resolution passed by the village of Milan authorizing the construction of the work. Payson v. Village of Milan, 144 Ill. App. 204. The opinion there filed states the facts and circumstances out of which the suit arises. Upon a second trial there was a verdict in favor of the plaintiff for $500 and later a judgment for $518.82, the amount of the verdict and interest thereon. The defendant prosecutes this appeal.


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    Catherine Adams, Appellee, v. John Jurich et al., Appellants.
    Gen. No. 5449.
    1. Dbam-shops—right to dismiss as to defendants. In an action of tort brought under the Dram-shop Act a plaintiff may before a trial or during the trial dismiss defendants from the action without impairing the right to proceed against the defendant or defendants remaining.
    2. Dbam-shops—what evidence incompetent in action brought under section 9 of act. Held, in this case, that evidence was incompetent which was to the effect that the husband of the plaintiff swore at the plaintiff and her children, would fall over them and pull their hair and would put his hands on the plaintiff’s lady boarders, swear at them and soil their clothes; such evidence while calculated to produce prejudice and enhance the damages awarded, did not tend to establish either a cause of action or the fact of damage.
    3. Dbam-shops-—what not essential to sustain recovery under section 9 of Act. Showing that the defendants were licensed to sell liquor is not essential; if the proof is ample to show that the defendants were engaged in running dram-shops where intoxicating liquors were sold by the drink for money, a recovery will be sustained in an action under section 9.
    4. Dbam-shops—when instruction in action under section 9 proper. In such an action instructions in the language of the statute are proper.
    5. Insteitotions—when error will not reverse. Error in an instruction complained of will not reverse if the particular error existing is not pointed out.

      6. Instructions—when as to form of verdict erroneous. An instruction upon this subject as follows is erroneous, the case being a close one and the evidence being such that some of the defendants might have been found guilty and others not guilty.
    “If you find the issues for the plaintiff you will for your verdict say: ‘We the jury find the defendants guilty and assess plaintiff’s damages at’ (here insert the amount). If you find the issues for the defendants, you will for your verdict say: ‘We the jury find the defendants not guilty.’ ”
    Action in case. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    A. C. Norton and F. A. Ortman, for appellants.
    White & Tuesburg, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case brought in March, 1909, by Catherine Adams, against John Jurich, Dominie Buffo, Mrs. B. Choketti, Peter Babrich, Dominic Secondino and Lewis Tintori, to recover damages under the ninth section of the “Dram-Shop Act,” for injury averred to have been caused by the sale of liquor to her husband, William Adams, causing him to be habitually intoxicated, and being intoxicated he squandered his-earnings and neglected his work, whereby she was injured in her means of support. Tintori was averred to be the owner of the building in which Mrs. Choketti sold intoxicating liquor. The suit was dismissed as to Tintori and Secondino. The only plea filed was the general issue. A jury returned a verdict for $650 against the remaining defendants. On February 4, 1910, the plaintiff remitted $150 by order of the court, and judgment was rendered in July, 1910, for $500 and costs. Jurich and Buffo appeal.

It is contended that there was error in permitting appellee to dismiss the suit as to Tintori, the landlord of Choketti, before the trial and as to Secondino during the trial, and in using Tintori as a witness for appellee. This is a suit in tort, and a plaintiff, both at common law and under the Dram-Shop Act, may bring her suit against as many joint tort feasors as she pleases, and may dismiss as to any she pleases, and the dismissal was within her rights. The fact that the suit was dismissed as to Tintori, who was the landlord of Choketti, was a question that might affect his credibility, but was no defense to the suit against the other defendants, unless there was a release for a valuable consideration and such release would have to be pleaded and proved to be available as a defense. Emory v. Addis, 71 Ill. 273; Stanley v. Leahy, 87 Ill. App. 465.

The appellee testified that she kept a boarding house and was married to William Adams in April, 1906, and that from that time her husband had been in the habit of getting intoxicated almost daily; that he followed his vocation of a coal miner and lost but little time when the mine was running; that he often made extra time; that his wages would average $60 a month; that her husband was paid every two weeks and he usually turned his pay check over to her; that he usually drew from $2 to $10 every two weeks in advance of the pay day, which he expended for liquor, and that he also got some of the proceeds of his pay check from her with which to get liquor.

It is assigned for error that the court improperly admitted certain evidence over the objections of appellants. Appellee testified her husband was drunk nearly every day after their marriage. She was then asked in regard to his conduct and treatment of appellee, of her children by a former marriage, and of other parties. The appellants objected to this line of questions and the objections being overruled appellee answered that he swore at her and the children, would fall over them and pull their hair, and would put his hands on her lady boarders, swear at them and soil their clothes. The effect of this evidence was to enhance appellee’s damages and to prejudice the jury against the defendants, because of the mental suffering and mortification of appellee. Such evidence should not have been admitted. Hackett v. Smelsley, 77 Ill. 109; McLees v. Niles, 93 Ill. App. 442. A stepdaughter was also permitted to testify over objection, that she worked in appellee’s boarding house; that her mother had promised her $3 a week arid she could not get her pay. Appellee also proved over the objection of appellants that she had some property when she married Adams, and that it had all been used up in running her boarding house. We are unable to see any logical connection or inference between the facts that she spent her money in running a boarding house or that she was unable to pay her employes in her private business, which may have been a losing venture, and the damage to her means of support suffered from the sale of liquor to her husband. The objections to this evidence should have been sustained. It would have been proper however for her to show if she could, that she had expended her money in her own support which would have been furnished by her husband except for his spending it in getting intoxicated.

It is insisted that there is not sufficient proof in the record to sustain the judgment against appellant Buffo. The only proof that tends to show that Buffo sold Adams liquor is the evidence of appellee that she once saw him in Buffo’s saloon for twenty minutes; that he was at that time drunk, fighting, quarreling and scolding; that she there heard him call for drinks twice but did not see him get liquor or drink there, but went away leaving him there. The scantiness of the evidence against Buffo makes more important the defect hereinafter mentioned in the instruction as to the form of verdict.

It is insisted there could be no recovery against the appellants because there was no proof that they had licenses to sell liquor. The proof is ample that they were severally engaged in running dram-shops or tippling houses, where intoxicating liquors were sold by the drink for money. These places of business are clearly within the statutory definition of dram-shops. “A dram-shop is a place where spirituous or vinous or malt liquors are retailed by less quantity than one gallon.” Sec. 1, Dram-Shop Act, Hurd’s Statutes (1908) 888..

Appellants contend that there was error in appellee’s third, sixth and eighth instructions in that they do not require the jury to find that the liquor furnished Adams materially contributed to his intoxication. These instructions tell the jury that if they believe from the evidence the defendants sold intoxicating liquor to William Adams and thereby in whole or in part caused the intoxication, etc. The instructions are in the language of the statute and free from error in the particular pointed out. The third instruction however tells the jury that if they believe from the evidence that the defendants within five years prior to March 11,1909, sold intoxicating liquors to William Adams, etc. Appellee was not married to him until April, 1906; she could not maintain this action for intoxication of Adams before she was bis wife; but appellants in their discussion of this instruction have made no reference to this error.

The court instructed the jury as to the form 'of their verdict:

“If you find the issues for the plaintiff you ivill for your-verdict say: ‘We the jury find the defendants guilty and assess plaintiff’s damages at’ (here insert the amount). If you find the issues for the defendants, you will for your verdict say: ‘We the jury find the defendants not guilty.’ ”

This instruction appears to have been given by the court, without the request of either party so far as the record shows. Each defendant excepted to the instruction, and the giving of this instruction is now assigned for error for the reason that it is a peremptory instruction to find against all the defendants, if there is a finding for the plaintiff.

The appellee contends that under the rule announced in the case of Triggs v. McIntyre, 215 Ill.369; 115 Ill. App. 257, the giving of this instruction is not reversible error. In the Triggs case, which was to recover damages for loss of support because of the sale of intoxicating liquor, there were hut two defendants, the saloon keeper and the owner of the building in which the liquor was sold. The Supreme Court say in that case, “it is difficult to see how one could be guilty, unless both were guilty.” The instruction in that case was that if they find the defendants guilty the form of their verdict might he: “We the jury find the defendants guilty,” etc. In the case under consideration the instruction in the record is: “If you find the issues for the plaintiff you will for your verdict say: ‘We the jury find the defendants guilty,’ ” etc. In the Triggs case the instruction was exactly correct in saying that if they found the defendants guilty (of whom there were but two) they should by their verdict say “We find the defendants guilty.” This case went to the jury as to four defendants, and the jury might find the issues for the plaintiff as to some defendants and not as to others, and it was therefore misleading to direct the jury that if they found the issues for the plaintiff, “you will for your verdict say, ‘we the jury find the defendants guilty,’ ” which the jury might understand to mean all the defendants. While the defendants might have asked an instruction as to the form of the verdict if some of the defendants were guilty and some were not, the law does not require that a party ask any instructions; the instructions are the instructions of the court. If a case is close upon the facts the jury should he accurately instructed. The plaintiff’s right to recover against appellant Buffo was based on a presumption only, that Adams was in Buffo’s saloon once drunk, and asked for liquor there, therefore he was made intoxicated by liquor sold him there. We are of the opinion that in view of the closeness of the case as to appellant Buffo, and the number of the defendants, the giving of this instruction as to the form of the verdict, without other qualifying instructions, impaired the rights of appellant Buffo.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Appellee, v. John Rubright et al., Appellants.
    Gen. No. 5453.
    1. Recognizances—what not defense tomaetion upon. A person under a recognizance to appear and answer a charge against him cannot disregard his obligation to appear, and afterwards, in a scire facias proceeding upon the forfeited recognizance, attempt to justify his default on the ground that the statute upon which the charge was based is unconstitutional.
    2. Recognizances—when refusal to set aside default not error. A motion'to set aside a default entered upon a recognizance is addressed to the sound legal discretion of the trial court and the exercise of such discretion will not be interfered with in the absence of a showing of abuse.
    3. Pish—jurisdiction of charge of hilling, Toy use of dynamite. Of such a charge both justices of the peace and the county courts have jurisdiction.
    4. Judgments—what does not aid. A bill of exceptions cannot aid the record as to the judgment for the reason that the record must contain the judgment of the court while the bill of exceptions is only the statement of the parties.
    5. Judgments—when void. An entry as follows: “Judgment on verdict for $200 and costs,” is void as it does not purport to be for or against any party; held, that such entry was likewise void as a judgment because it did not correspond with the verdict rendered.
    Appeal from the County Court of Whiteside county; the Hon. Henry C. Wabd, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    Statement by the Court. On September 16, 1908, at tbe law term of tlie County Court of Whiteside county, H. H. Waite, the state’s attorney, filed an information against John Kirby, Wilber Holmes and John Bubright charging them with killing fish in Elk-horn Creek by the use of dynamite. The court fixed the bail for each defendant at the sum of $200. The defendants were arrested under the warrant issued and gave bail to the sheriff. The recognizance of Bu-bright was signed by Thomas McCue as surety. On September 24, the defendants entered a plea of not guilty and the cause was continued to October 9th upon the motion of the state’s attorney. Before October 9th the defendants were notified that they need not appear on that day as the cause would again be continued, and the case was continued to October 16. On October 16 the case was again continued until October 26th, at eleven o’clock. On October 26, the case was called at 1:30 o’clock; the defendant Bubright not appearing he and his surety were defaulted; a judgment was entered against them for $200 and execution awarded. The other defendants appeared at that time and a nolle pros was entered by the state’s attorney as to them. On November 16 Bubright and his surety appeared and made a motion to quash the execution and set aside the judgment and default. Thereupon the execution was quashed, the judgment vacated but “the order of default was allowed to stand” and a scire facias ordered. On December 14, counsel for defendant Bubright having been elected state’s attorney, Waite the attorney who filed the information was appointed to prosecute. Thereafter Bubright and McOue paid the costs and renewed the motion to set aside the default, including with it a motion to vacate the order for a scire facias. After-wards on a trial on the information, the defendant was found not guilty. The court then overruled the motion to set aside the default and to vacate the order for a scire facias. The defendants filed various pleas to the scire facias, to some of which a demurrer was sustained and issues were joined on the others. On a trial before a jury the records shows the “jury return a verdict into court finding issues for the plaintiff;” a motion for a new trial was overruled and an entry made, “Judgment on the verdict for $200 and costs.” The defendants appealed to the Supreme Court and that court on October 26, 1909, ordered the case transferred to this court (241 Ill. 600), but for some reason the record was not filed here until October 24, 1910.
    C. L. and C. E. Sheldon, for appellants.
    W. H. Head, Joel C. Pitch and Harry H. Waite, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellants contend that the statute under which the information was filed is unconstitutional and that the taking of the bond was illegal and therefore void. The Supreme Court has passed on that question and said that a person under a recognizance to appear and answer a charge against him cannot disregard his obligation to appear, and afterwards, in a scire facias proceeding upon the forfeited recognizance, attempt to justify his default on the ground that the statute upon which the charge was based is unconstitutional, and for that reason it directed the case to be transferred to this court. People v. Rubright, 241 Ill. 600.

It is next contended that by the statute for the propogation and protection of fish, justices of the peace are given exclusive jurisdiction over offenses in violation of the act. Chapter 56, sec. 4a. Chapter 37 of the statutes, title Courts, provides that “County courts shall have concurrent jurisdiction with the circuit courts in all that class of cases wherein justices of the peace now have or may hereafter have jurisdiction, when the amount claimed or the value of the property in controversy shall not exceed $1,000 * * * and in all criminal offences and misdemeanors where the punishment is not imprisonment in the penitentiary or death, all of -which shall be cognizable at the law terms hereinafter mentioned.” The offense charged in the information is punishable by a fine of not less than $100 nor more than $200 or imprisonment in the county jail not more than six months, or both. It is one of that class which by general law is cognizable in county courts and may be prosecuted by information or before a justice of the peace. Cornshock v. People, 56 Ill. App. 467.

It is also assigned for error that the court erred in refusing to set aside the order of default. That was a matter addressed to the sound legal discretion of the trial court. The appellants did not save that question for review by a bill of exceptions showing the proof made on the motion. Consequently we cannot say that the court erred, but must presume that appellants did not make a sufficient showing to excuse the failure to appear at the time to which the case was continued, or that the showing of the defendant was overcome by counter affidavits.

At the trail in March, 1909, upon the issues made on the scire facias, the appellants offered in evidence certain affidavits which they allege were presented on the motion to set aside the default. The court properly excluded them as they did not present any defense to the scire facias. By that means, however, such motions and affidavits became incorporated into the bill of exceptions taken at the trial, and we can see what they purported to show, but we cannot review the action of the court on the motion. If these affidavits were presented on that motion and were the only affidavits on that question, then had the question been saved for review we should have held that in the exercise of a sound discretion the court should have vacated the default.

It is further contended the default should have been set aside because it was prematurely taken. The condition of the bond is “that if the above bounden John Bubright shall personally be and appear before the judge of the County Court in and for the county of Whiteside and State of Illinois, on the first day of the next term thereof, to be holden at the court house in Morrison on the 21st day of the month, of September, 1908, and from day to day,” etc. Appellants insist that Bubright did not have to appear before the December term and that the default taken October 26th was premature. The bond is isomewhat uncertain. The defendant did appear on September 21 and October 9, but did not appear on October 16 or on October 26 until after the default. All the parties to the bond construed it the same way, that Bubright was to appear during the September term. The recognizance required the defendant to appear on the 21st day of September and from day to day, etc., and upon his failure to so appear the default was properly taken. Petty v. People, 118 Ill. 148; Allen v. People, 29 Ill. App. 555. The bill of exceptions shows a proper verdict and judgment but the record shows a verdict that does not fix any amount and the judgment, if it can be called a judgment, is informal. The bill of exceptions cannot aid the record as to the judgment, for the reason that the record must contain the judgment of the court, while the bill of exceptions is only the statement of the parties. O’Donnell v. Quinn, 100 Ill. App. 5; Riva v. City of Spring Valley, 129 Ill. App. 167. The entry which appellee claims to be a judgment is “judgment on the verdict for $200 and costs.” This does not purport to be for nor against any party and the $200 is not mentioned in the verdict. This is clearly insufficient to constitute a judgment. Martin v. Barnhardt, 39 Ill. 9; Faulk v. Kellums, 54 Ill. 188; Meyer v. Village of Teutopolis, 131 Ill. 552; Metzger v. Morley, 184 Ill. 81; Santa Clara Lumber Co. v. Prescott, 238 Ill. 625; Fitzsimmons v. Munch, 74 Ill. App. 259.

The judgment is reversed and the cause remanded.

Reversed and remanded.