text:
    Charles McCracken and Minnie McCracken, Appellees, v. Farmers’ Grain Company, Appellant.
    1. FIees, § 9*—when responsibility for fire is properly submitted to jury. In an action against a grain elevator company for damage to plaintiffs’ personal property by fire which spread from that started by defendant’s servants for the purpose of burning corncobs, held that defendant’s responsibility for the fire and the loss was a question that was properly submitted to the jury and that their verdict, based as it was on conflicting testimony, would be sustained unless it was manifestly contrary to the weight of the evidence.
    2. Fires, § 615—when verdict for plaintiffs in action for damage to property by fire is not contrary to weight of evidence. Verdict for plaintiffs in an action against a grain elevator company for damage to plaintiff’s personal property by fire which spread from that started by defendant’s servants for the purpose of burning corncobs, held not contrary to the weight of the evidence.
    3. Fires, § 6*—what testimony is competent in action for damage to property by fire. In an action against a grain elevator company for damage to plaintiffs’ personal property by fire which spread from that started by defendant’s servants for the purpose of burning corncobs, testimony of a witness for the plaintiffs that a long time before the fire causing plaintiffs’ damage he had told the manager of the defendant company that several property owners had complained to the village board that their property was being endangered by the burning of cobs by defendant and that he should he more careful; that the substance of the statement was repeated to the manager by the witness more than once, and that the manager said to the witness that he did not think there was any danger, which testimony was offered solely for the purpose of showing actual knowledge on the part of the manager of the custom of defendant’s employees of burning the cobs there and the danger arising therefrom as bearing on the question whether defendant was negligent in permitting the same to be so burned, held competent.
    4. Fires, § 6

      —what testimony is competent in action for damage to property by fire. In an action against a grain elevator company for damage to plaintiffs’ personal property by fire which spread from that started by defendant’s servants for the purpose of burning corncobs, held that testimony that at another time the elevator which burned down at the time plaintiffs’ property was burned had caught fire from the burning of cobs under circumstances and con-

      ditions stibstantially the same as those existing at the time plaintiffs’ property was destroyed would have been competent as evidence of notice of the danger of burning cobs near the elevator.
    5. Evidence, § 52*—when attempt to prove competent fact is not error. The attempt to prove a competent fact in a competent way is not error.
    6. Fires, § 11*—what is measure of damages for destruction of goods by fire. In an action against a grain elevator company for the destruction of plaintiffs’ household effects and provisions by fire which spread from that started by defendant’s servants for the purpose of burning corncobs, held that the measure of damages was the fair cash market value of the goods, what they would have brought on the market, not at wholesale or for resale, or at forced sale, but on the market where such goods are bought and sold.
    7. Evidence, § 372

      —what testimony is competent on question of value of goods destroyed by fire. In an action against a grain elevator company for the destruction of plaintiffs’ household effects and provisions by fire which spread from that started by defendant’s servants for the purpose of burning corncobs, held that the testimony of a witness, who had purchased some secondhand goods and knew in a general way the value of household goods and provisions such as those destroyed and who gave her opinion as to the fair cash market value of such goods, was competent and that it was for the jury to determine what weight should be given to it.
    Appeal from the Circuit Court of Moultrie county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    Rehearing denied December 29, 1919.
    Whitney & Fitzgerald and John A. Walgren, for appellant.
    J. L. McLaughlin and Homer W. Wright, for appellees ; Elliott Billman, of counsel.

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

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellees of $700 against appellant, a corporation organized for the purpose of buying, handling, shipping and selling grain, for loss by fire of household effects and provisions, which fire it is charged was begun by the servants of appellant either pursuant to an express order or an established custom, to bum the cobs left after shelling com. It is not denied that the fire was communicated to and caused the destruction of appellee’s goods but it is denied that appellant is responsible for the loss. The jury found that it was responsible for the fire and the loss. It was a question that was properly submitted to the jury and their verdict, based as it was on conflicting testimony, must stand unless it is manifestly contrary to the weight of the evidence. We have read the evidence and the arguments of counsel pro and con on the question and are not willing to hold that the verdict is contrary to the weight of the evidence.

One W. F. Cook was called as a witness by appellees and testified that a long time before the fire that destroyed appellees’ property he told a Mr. Moody who was then the manager of appellant that several property owners had complained to the village board that their property was being endangered by the burning of cobs by appellant and that he should be more careful; that the substance of the statement was repeated to Mr. Moody by the witness more than once. He also testified that Moody said to him that he did not think there was any danger about it. It developed on the examination that this witness was the mayor of the city at the time he talked to Moody about burning the cobs, but that fact has no significance on the questions here involved because his evidence was offered solely for the purpose of showing actual knowledge by Moody, the manager of appellant, of the custom of the employees of burning the cobs there and the danger arising therefrom as bearing on the question whether appellant was negligent in permitting the same to be so burned. The evidence was competent under the authority of City of Chicago v. Jarvis, 226 Ill. 614.

Appellees called one Davis as a witness and attempted to prove by him that at another time the elevator that burned down at the time appellees’ property was burned had caught on fire from the burning of cobs unler circumstances and conditions substantially the same as those existing at the time appellees ’ goods were destroyed, but the witness did not so testify. Appellant insists that reversible error was committed by the attempt of appellees to make the proof. The proof sought for, if it had been obtained, would have been competent for the same reasons as the testimony of the witness Grood, i. e., as notice of the danger of burning cobs.near the elevator. The attempt to prove a competent fact in a competent way is not error.

Appellant insists that the basis of estimating the damages sustained by appellees was wrong because the witness gave her estimate on what it would .have cost her to buy such goods; and that the real measure of damages was to be determined from what a dealer in secondhand goods would have paid for the goods destroyed. The measure of damages was the fair cash market value of the goods, what they would have brought on the market, not at wholesale or for resale, or at forced sale, but on the market where such goods are bought and sold.

The proof of the value of the property destroyed was made by Mrs. Minnie McCracken. She had purchased some secondhand goods and knew in a general way the values of household goods and provisions such as those destroyed. She gave 'her opinion as to the fair ¡cash market value of such goods. Her evidence was competent and it was for the jury to determine what weight should be given to it. The total of her estimates of values was about $1,100 or $1,200. The jury fixed the damages at $700 and there is no complaint that the amount is too large.

Some objections have been argued to the action of the court in giving and modifying and refusing instructions, but such objections are hypercritical and without force.

Finding no reversible error in the record the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    The Aetna Accident & Liability Company, Appellant, v. Alexander Lumber Company et al., Appellees.
    1. Building and construction contracts, § 77*—when evidence does not sustain claim as to statement to surety on bond as to contractor’s indebtedness. Evidence held not to sustain the claim of the surety on a building contractor’s bond that the district manager of a lumber company made a positive statement, prior to the surety’s execution of the bond, that the contractor’s indebtedness to the lumber company did not exceed a certain sum, and therefore that the surety was induced to execute the bond as a result of a misrepresentation of a material fact, but to conclusively show that such manager stated that he could only approximate such indebtedness.
    2. Building and construction contracts, § 77*-—when evidence shows question of contractor’s indebtedness did not influence execution of bond by surety. Evidence held to show that the question of the indebtedness of a building contractor to a lumber company could have had little, if any, influence with a surety company in inducing it to execute the contractor’s bond.
    3. Principal and surety, § 32*—right of principal to designate how payment made by him shall be applied. When a surety is liable for a part only of the entire indebtedness of the principal to the creditor, and the principal makes a payment on account of his indebtedness, he is entitled to designate to which particular part of the indebtedness it shall be applied, without regard to the wishes of the creditor or surety.
    4. Principal and surety, § 32

      —how creditor may apply payment made by principal. If the principal in a bond, when making a payment to the creditor, fails to designate how he wishes the money

      applied, the creditor may apply it to any part of the principal’s indebtedness, the surety having no right to insist upon the application of the payment to the debt for which he is liable, nor does it make any difference that the surety was not aware of the existence of any other indebtedness of the principal than that for which the surety became liable.
    5. Principal and stjbbty, § 32*—how court will apply payment made by principal. When neither the obligee nor the principal in a bond makes any application of a payment by the latter, and their transactions afterwards became a matter of judicial adjustment, the court will apply the payment as equity seems to require, usually to the oldest item, unless the parties’ conduct indicates that the payments were to be credited to later items.
    6. Appeal and error, § 884'*-^—when question cannot be raised in Appellate Court. A surety on a contractor’s bond cannot claim in the Appellate Court that it was discharged from its obligation by the varying of the terms thereof by an agreement between the contractor and a lumber company when no such claim was pleaded by it in the court below.
    7. Equity, § 132*—what bill must allege. It is elementary that a bill must allege all facts necessary to entitle the complainant to relief.
    8. Equity, § 247*—when surety on contractor’s bond should amend bill. Where knowledge of a transaction which the surety on a contractor’s bond claims discharged it from its obligation came to it only after the transaction had been developed by the evidence in its suit in equity, it should have amended its bill and alleged the facts if it desired to take advantage of the transaction, or seek any relief by reason thereof.
    9. Appeal and error, § 1207

      —when appellant cannot urge lacle of proper pleading and proof. Since an appellant cannot complain of the insufficiency of the allegations of its own bill, an appellant, which was the surety on a contractor’s bond, cannot urge that the decree against it cannot be sustained in the absence of allegation, proof and determination of the rights of others than the appellee lumber company when, if there was error in this regard, it was the fault of appellant which filed the original bill.
    1 Appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    Green & Palmer and L. L. Dent, for appellant; L.

      L. Dent, Henry I. Gíreen and Oris B'arth, of counsel.
    Dobbins & Dobbins, for appellee Alexander Lumber Company.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

The Aetna Accident & Liability Company, appellant, appeals from a decree of the Circuit Court of Champaign county dismissing its amended bill for want of equity and granting a money judgment for the sum of $17,560.35 against it and against Mark S. Freeman and Ellis Brooks, copartners as Freeman &

Brooks, on a cross-bill filed by the Alexander Lumber Company.

It is alleged in the bill as amended in substance that appellant on the 15th day of August, 1914, entered into, as surety for Freeman & Brooks, as principals, a certain bond to the Board of Trustees of the University of Illinois, as obligee, in the penal sum of $188,769; that the conditions of the bond were as follows:

“The Condition oe the Above Obligation is such That Whereas, the said Freeman and Brooks did on the 14th day of Aug. A. D. 1914, enter into a contract with the said Board of Trustees of the University of Illinois, for the erection of a structure known as the Chemistry Building, in accordance with said contract, and in accordance with the plans, specifications and profiles in connection therewith; and,

“Whereas, it is provided among other things in said specifications that said Contractor shall give, within five (5) days after execution of said contract, a Surety Bond in the full amount of said contract, guaranteeing the faithful performance of the contract-in accordance with the terms thereof, and including a provision providing for the protection of sub-contractors, material men, mechanics, workmen, or other person furnishing material or labor, to the same ex-

tent as though they were parties to the bond and agreement.

“Now Thebefobe, if the above bounden Freeman Brooks shall well and truly perform and fulfill all the covenants and agreements by them in and by said written contract covenanted and agreed to be performed and fulfilled as therein set forth, and to the satisfaction of the said Board of Trustees of the University of Illinois and evidence by their written approval, and shall save and keep harmless the said Board of Trustees of the University of Illinois from all and every claim for liens, for material or labor or otherwise incurred by reason of the erection or completion of the said building, and shall save, indemnify and keep harmless the said Board of Trustees of the University of Illinois from all and every claim, expenses, loss or damage for, on account of, or by reason of any claims which may be set up or made by any other person holding a patent right, or in any manner entitled to protection, in the matter of any article or any portion of any article any method of construction or operation, used by the above bounden Freeman and Brooks in the performance' of said written contract, and shall turn over the said building and the said premises free and clear from any and all claim or claims for infringement of patent or other right to protection and shall, irrespective of the right of any sub-contractor, material man, mechanic, workman, laborer, or other person furnishing material or labor in or about the erection and completion of said building, and irrespective of any other security which may exist against the said principals, at or before the turning over of the said building to the said Board of Trustees of the University of Illinois pay in full all indebtedness which it, he or they may owe to any such sub-contractor, material man, mechanic, workman, laborer, or other person so furnishing material or labor, it being hereby understood and agreed by the parties hereto that this bond and agreement is entered into, not only for the protection of the said Board of Trustees, of the University of Illinois, but also for the protection of the said sub-contractor, material man, mechanic, workman, laborer, or other person so furnishing material or labor, who shall have the right to enforce the obligation of this agreement and bond against the said principals and surety in the same manner and to as full an extent as though they were parties to this bond and agreement, it being understood and agreed, however, that this protection shall not extend to any party or parties to whom the said principal is not directly indebted by reason of the furnishing of labor or material in or about the erection or construction of the said building, then this obligation to be void, otherwise to remain in full force and effect.1 ’

It is further alleg’ed that appellant was induced to execute said bond on the misrepresentation to it of a material fact by the Alexander Lumber Company, the use plaintiff in a suit at law on said bond, which was that said Freeman & Brooks were not, at the time of the execution of said bond, indebted to said Alexander Lumber Company in excess of the sum of $10,000, which statement was untrue and known to be untrue by the Alexander Lumber Company at the time it was made to appellant, inasmuch as at that time said indebtedness exceeded $20,000; that said false statement was made for the purpose of inducing appellant to execute said bond, well knowing that it would rely thereon and, in so relying, execute said bond and suffer loss and damage; that the Alexander Lumber Company brought a suit at law against appellant to recover $20,000 as the value of certain material alleged to have been furnished to said Freeman & Brooks in the construction of said Chemistry Building; that the contract price on the Chemistry Building and the Administration Building was $294,653; that said Freeman & Brooks began the construction work on the Chemistry Building in August, 1914, and completed the same in September, 1916; that for a long time prior to August, 1914, and during said period of time to September, 1916, Freeman & Brooks were indebted to the Alexander Lumber Company for material furnished by the latter to the former on a number of contracts other than said Chemistry Building, to wit, the buildings known as the Park Theater, Universalist Church, The Mueller, The Stipes & Hecker, The Phi Sigma Kappa, the Illinois Building, the Lewis, the Armstrong School, the I. O. O. F. Building and others; that during said period of time, Freeman & Brooks paid to the Alexander Lumber Company moneys derived exclusively from the Chemistry Building contract, as the Alexander Lumber Company well knew in excess of the sum of $26,000; that all of said moneys were applied by the Alexander Lumber Company in payment of indebtedness of Freeman & Brooks for material furnished on buildings other than said Chemistry Building; that said sum was more than the amount of the Alexander Lumber Company’s claim for material furnished ,by it to Freeman & Brooks on the Chemistry Building and that none of said moneys were applied by the Alexander Lumber Company on its Chemistry Building account with Freeman & Brooks. That said bond expressly provides: “This protection shall not extend to any party or parties to whom the said principal is not directly indebted by reason of the furnishing of labor or material in or about the erection or construction of the said building,” by reason whereof it was the duty of the Alexander Lumber Company to apply all of said moneys derived from said Chemistry Building contract in payment of material furnished by it to Freeman & Brooks in the construction of said Chemistry Building; that appellant has the right to have the payments made by Freeman & Brooks to the Alexander Lumber Company applied in payment of material furnished under the Chemistry Building contract and that appellant is not bound by an application of such payments to preexisting or concurrent indebtedness, and that such right of exoneration existing in favor of the surety, there being a special equity in favor of the surety to have the contract price of the Chemistry Building contract applied in payment of liabilities incurred by the contractor for'material necessary for the construction of said Chemistry Building; that the Alexander Lumber Company claims that Freeman & Brooks did not give to it any direction as to the application of said moneys and that thereby under the special right and equity of appellant it became and was the duty of the Alexander Lumber Company to apply them on the Chemistry Building material account and not otherwise.

The bill further alleges that, at the time of the execution of said bond, Freeman & Brooks, in order to indemnify appellant against loss or liability which it might sustain by reason of the execution of said bond, executed an indemnity agreement, a copy of which is attached to the bill, whereby Fréeman & Brooks assigned to appellant their construction plant, tools, appliances and equipment used by them in the construction of said Chemistry Building, of which said assignment the Alexander Lumber Company then and there had notice; that Freeman & Brooks, subsequent to the execution of said indemnity agreement, executed to the Alexander Lumber Company diverse bills of sale, chattel mortgages and assignments of said construction plant, tools, appliances, etc., in violation of the interests of appellant therein.

The bill further alleges that the equitable matters mentioned are not receivable as defenses in actions at law and that unless the Alexander Lumber Company is restrained from prosecuting said suit at law, appellant will suffer irreparable injury.

The bill as amended makes the Alexander Lumber Company, Freeman & Brooks and the Board of Trustees of the University of Illinois parties defendant and prays for a discovery of all the accounts between the Alexander Lumber Company and Freeman & Brooks; that the hills of sale, chattel mortgages, etc., executed hy Freeman & Brooks to the Alexander Lumber Company be set aside and “in the event it may be determined that this complainant is in any manner liable .upon said writing obligatory to the defendant, the Alexander Lumber Company, the complainant, prays that an accounting be had, and that, the entire subject-matter of said action at lavr be heard and considered in this cause, in so far as the issues therein are cognizable in a suit of equity.”

The Alexander Lumber Company in its answer, denies that it fraudulently made the misrepresentation alleged; that it had knowledge of the source of the particular moneys paid to it by Freeman ■& Brooks; that it had any knowledge of any assignment to appellant by Freeman & Brooks of the equipment, tools, etc., of the latter; and that appellant has any equitable right to have the moneys paid to it by Freeman & Brooks during said period of time applied upon the indebtedness of Freeman & Brooks to it in the manner claimed in the bill.

By its cross-bill the Alexander Lumber Company asks for an accounting and that a money judgment be rendered in its favor for the amount found due for materials furnished to Freeman & Brooks in the construction of the Chemistry Building.

The cause was referred to the master in chancery with directions to report his conclusions of law and fact. The master reported no conclusions of fact, but found as a matter of law that the equities were with appellant and recommended that the cross-bill be dismissed for want of equity and that the injunction, as prayed for in the original bill as amended, issue. The exceptions of the Alexander Lumber Company to the master’s report were sustained by the chancellor upon the hearing and a decree was entered providing for a money judgment in favor of the Alexander Lumber Company against appeHant and Freeman & Brooks and dismissing the original bill as amended for want of equity.

The contention of appellant that it was induced to execute the bond in question by a misrepresentation of the amount of indebtedness due the Alexander Lumber Company from Freeman & Brooks is not sustained by the evidence. It is uncontradicated that the Alexander1 Lumber Company was one of the largest dealers in building materials in the vicinity of the Cities of Champaign and Urbana and that Freeman & Brooks were a contracting firm in good standing and executing large contracts. At the time the bond was executed, Freeman & Brooks were constructing the Champaign high school costing approximately $250,000, the Illinois Building costing $100,000, and a number of other large buildings. In July, 1914, the University of Illinois received bids for the construction of two buildings, one known as the Chemistry Building and the other as an addition to the Administration Building, and the bids of Freeman & Brooks were accepted at the total sum of $294,653. The University required that a bond be executed by the successful bidder to insure the faithful performance of the contract. The local agent for appellant, Mr. D. G-. Swannell, solicited Freeman & Brooks for the purpose of furnishing the required bond, whereupon an, application was made to appellant for a bond in the penal sum of $300,000. Accompanying the application was a statement by Freeman & Brooks of their assets and liabilities. The assets were placed at $100,000 and the liabilities at between $25,000 and $35,000. This statement was investigated by appellant and no claim is made by it and there is no evidence tending to show that the statement was incorrect. The home office of appellant at Hartford, Connecticut, declined to issue a bond for this amount. Swannell learned that another contractor by the name of Stoolman had gone to the Chicago office of appellant and made an effort to prevent it from executing the bond and thereupon he .and Mr. B. S. Bassett, who was the district manager of the Alexander Lumber Company, went to the Chicago office of appellant to interview its officers there in regard to executing the bond for Freeman & Brooks. Before going to Chicago with Swannell, Bassett interviewed Professor White who had charge of the letting contracts by the University, with the object in view of having the contracts for the two buildings separated in case Freeman & Brooks could not procure a bond sufficient to cover a contract for both buildings. Professor White consented to a separation of the contracts, and that the one for the building of the addition to the Administration Building might be given to English Brothers, a contracting firm, at the price of the bid made by Freeman & Brooks. English Brothers consented to enter into a contract for the construction of the addition to the Administration Building for the amount mentioned in the bid of Freeman & Brooks, and separate contracts were subsequently executed in this manner for the construction of the two buildings. At the office of appellant in Chicago, Swannell and Bassett met Mr. E. O. Wagoner, appellant’s superintendent of agents, and Mr. Charles E. Bennett, its manager. Wagoner testified that Bassett stated at this meeting, in substance, that he was interested in having Freeman & Brooks procure the bond because the Alexander Lumber Company expected to sell that firm lumber to be used in the construction of the buildings. He further testified that the reason appellant had declined to execute the $300,000 bond was that the financial statement of Freeman & Brooks was not sufficient to justify it in executing a bond of that size. His version of the conversation in which it is insisted Bassett misrepresented the amount of indebtedness owing from Freeman & Brooks to the Alexander Lumber Company is that Bennett told Bassett that the financial statement made by Freeman & Brooks showed assets of approximately $100,000 with liabilities between $25,000 and $35,000, and asked Bassett if he thought it was a fair estimate of their financial worth and that Bassett replied: “I would say that was approximately correct.” Then Bennett asked Bassett how much of these liabilities was due the Alexander Lumber Company and Bassett replied “that he could not give the exact figure, which was of course impossible, but that it was in the neighborhood of about $10,000.” Wagoner further testified that Bassett also stated that if Freeman & Brooks got the contract, the Alexander Lumber Company would extend to them a liberal credit in the purchase of lumber and further testified: ‘1 The willingness to extend a liberal credit was not the deciding factor. The question of the $10,-000 credit was not the deciding question altogether. It was a big- factor. If a contractor owed too much, the company must always turn down their bond. We were pleased to know the Alexander Lumber Company was willing to extend credit, and pleased to know they did not owe them any more.” The witness was asked on a recross-examination, after án adjournment, the following question: “And Mr. Green said to you that the two things here was to show that Mr. Bassett told you that Freeman & Brooks only owed them $10,000, and that you relied upon that?” To which he answered: “No, he did not say those exact words. He said that was one of the main issues, but I knew that myself. He asked me if we did not rely wholly upon that $10,000 credit. I said certainly not, it was not understood we would. He asked me if we did not, and 1 said we did not rely on that wholly. Of course, the indebtedness had a whole lot to do with it.” He further stated on cross-examination: “I testified the reason that Mr. Bennett and I decided to recommend the issuance of this bond was that the Alexander Lumber Company appeared to be backing these people and willing to give them a very liberal credit. ’ ’ Swannell testified to several versions of what Bassett said in regard to the indebtedness of Freeman & Brooks to the Alexander Lumber Company. “He said, approximately $10,000, or not to exceed $10,000, but I could not tell exactly, or words to that effect. * * * He said he could not tell exactly the exact sum that Freeman & Brooks owed them, but he could give it approxi-j mately, and that it would, in my remembrance, not exceed $10,000/ * * * I think Mr. Bassett said that! he could not give the exact figure of the indebtedness' of Freeman & Brooks.to the Alexander Lumber Com-' pany, but that it was in the neighborhood of $10,000.”. Bennett testified on direct examination that his recollection was that Bassett said the indebtedness of. Freeman & Brooks to the Alexander Lumber Company,' was approximately $10,000. On cross-examination he testified: “I believe I did ask Mr. Bassett whether it was $10,000 or $20,000. It is my recollection he replied, ‘somewhere between those amounts.’ ”

Bassett’s testimony upon this question is in substance : “He (Bennett) then asked me how much they owed at that timé, and I said I did not know; that they had a great many accounts on our books, and that our method of charging estimates for all deliveries made it impossible to compute the indebtedness of any contractor of large operations without a great deal of research. He said, ‘Can’t you tell whether it is $10,000 or $20,000,’ rather sarcastic, and I said ‘No, I could not positive, it was somewhere between the two amounts.’ ”

Wagoner also testified that after Bassett and Swannell had left the office that he and Mr. Bennett discussed the matter of the bond and that Bennett stated to him in substance that since the Alexander Lumber Company was willing to extend a liberal credit to .Freeman & Brooks and as it was backing them and as it was a good sound concern, that he thought it would he best to recommend to the home office the issuance of the bond. Bennett then sent the following telegram to the home office: “Please rush Freeman & Brooks Reinsurance with all haste. District Manager 'Alexander Lumber Co. in office now advises they will extend Fifty Thousand credit at any time to these contractors without any advance. Recommends very highly the ability and integrity of these contractors. ¡Would recommend delivery of bond with Reinsurance already obtained.”

An expert accountant testifying on behalf of the Alexander Lumber Company stated that an examination of the books of the company showed that the !actual, indebtedness of Freeman & Brooks to that concern at the time of the execution of the bond was in fact $13,000. An expert accountant testifying on behalf of appellant stated that his examination of the books showed such indebtedness to be at that time $21,000. Whatever the actual indebtedness might have been, it is apparent that the proofs do not sustain appellant’s contention that Bassett made a positive statement that such indebtedness did not exceed $10,000, but on the contrary it is conclusively shown that he stated that he could only approximate it, and, according to Bassett’s testimony which is corroborated by that of Bennett, he said it was somewhere between $10,000 and $20,000. It is also apparent that the question of this indebtedness to the Alexander Lumber Company could have had little, if any, influence with appellant in inducing it to execute the bond. Appellant already had before it a statement of the total amount of the indebtedness of Freeman & Brooks and there is nothing in the evidence tending to show that it was in any way incorrect or untrue. This statement showed that the total indebtednes of Freeman & Brooks was at that time between $25,000 and $35,000. It is not claimed that all of the indebtedness which Freeman & ‘Brooks owed at that time was that which was due the Alexander Lumber Company, so it could make no difference to appellant what portion of the total indebtedness of this firm might be due to the latter company. The testimony of Wagoner and the telegram sent by Bennett would indicate that the statements relied upon, if any, were those to the effect that the Alexander Lumber Company would extend to Freeman & Brooks a liberal credit, and it is not claimed that such credit was not extended.

Appellant contends that as surety on the bond it had a special equity to have the funds paid to Freeman & Brooks on account of the contract for building the Chemistry Building applied in payment for materials furnished in the construction of that building. In order to determine the correctness of this proposition, an examination of the facts as they appear in the record is necessary. The proofs show that, at the time the contract and bond were executed, Freeman & Brooks were constructing a number of other buildings and that the Alexander Lumber Company had been furnishing to this firm lumber and materials used in their construction, and continued to furnish such lumber and materials after the contract and bond were executed. Appellant had not only consented to the Alexander Lumber Company’s extending a liberal credit to Freeman & Brooks for lumber and materials to be used in the construction of the Chemistry Building, but the fact that the Alexander Lumber Company had promised to extend such credit was one of the principal inducements to appellant for executing the bond. During1 the time of the construction of the Chemistry Building, a period of 2 years, Freeman & Brooks paid to the Alexander Lumber Company altogether $26,-000. These payments were applied by the Alexander Lumber Company to the extinguishment of the oldest accounts with Freeman & Brooks as they matured. The payments were made by Freeman & Brooks to the Alexander Lumber Company by check and Freeman & Brooks had never directed the application of any of those payments. The checks were drawn upon the general banking account of Freeman & Brooks, and during the time of the construction of the Chemistry Building they kept but one general bank account in which was deposited all the moneys received by them on account of all their contracts and from all other sources. During this time the sum of $281,161.01, which was derived from other contracts and sources in no way connected with the Chemistry Building, were deposited in this general banking account, and mingled with the moneys received on the Chemistry7 Building contract.

The Alexander Lumber Company had no knowledge of the source of the moneys from which the payments to it were made. The Chemistry Building was not a wooden structure and the lumber and materials furnished by the Alexander Lumber Company comprised but a small part of its cost, being less than 10 per cent thereof. It is conceded that the general rule of law is that a debtor in making a voluntary payment can, if he so desires, control and direct the application of the payment, but, if he does not do so, the creditor may exercise that right. It is also conceded that it is a general rule that a surety cannot direct the application of payments made by his principal and that he is bound by any application made by the principal and the creditor, or either. But it is contended by appellant “that the bond being conditioned for the faithful performance of the work by Freeman & Brooks and the surety only agreeing to stand surety for materials for which the principal in the bond was directly indebted by reason of the furnishing of such material in or about the erection or construction of the Chemistry Building, that the surety by virtue of the very contract which he had entered into, and by virtue of his relation to the parties thereto as surety, had a special equity, which was a property right, in the funds which were derived from Freeman & Brooks from the construction of that building to have the same applied in payment for materials and labor furnished thereon, and that the Aetna Accident & Liability Company was not surety for any other indebtedness whatever of Freeman & Brooks.” It is assumed by counsel for appellant in advancing this theory that the $26,000 paid to the Alexander Lumber Company by Freeman & Brooks during the time the Chemistry Building was being constructed were moneys derived by Freeman & Brooks exclusively on account of the Chemistry Building contract. The proofs do not show that any part of this sum was in fact money received by Freeman & Brooks on account of said contract. It is true one of the witnesses for appellant attempted to trace some of the money so received by Freeman & Brooks as having been paid to the Alexander Lumber Company by a process of reasoning which we fail to comprehend and to which we can give but little weight, but the proofs conclusively show that the Alexander Lumber Company had no knowledge of from what source Freeman & Brooks obtained the money paid to it.

The rule as stated in 32 Cyc. 170-172, is as follows:

“Application of payments—(1) By principal or surety. Where a surety is liable for a part only of the entire indebtedness of the principal to the creditor, and the principal makes a payment on account of his indebtedness, he is entitled to designate to which particular part of the indebtedness it shall be applied, regardless of the wishes of the creditor, or of the surety. * # *

“(2) By creditor. If the principal, when making a payment, omits to designate how he wishes the money applied, the creditor may apply it to any part of the indebtedness of the principal, a surety not having any right to insist upon the application to the debt for which he is liable, nor does it make any difference that the surety was not aware of the existence of any other indebtedness of the principal than that for which the surety became liable. * * *

“(3) By court. If neither the creditor nor the principal has made any application of a payment made by the latter, and their transactions afterward become a matter of judicial adjustment, the court will apply the payment as equity seems to require, usually to the oldest item, unless the conduct of the parties indicates that payments by the principal were to be credited to later items.”

The same rule is announced also in 30 Cyc. 1250-1251. The principles thus announced have been approved by the courts of this State. Hansen v. Rounsavell, 74 Ill. 238; Graff v. Fox, 204 Ill. App. 598; Halsted v. Griefen, 173 Ill. App. 551. They are also supported by the weight of authority. People v. Powers, 108 Mich. 339; Sampson Co. v. Commonwealth. 208 Mass. 372; Mack v. Colleran, 136 N. Y. 617; Cain v. Vogt, 138 Iowa 631, 116 N. W. 787; Kortlander v. Elston, 52 Fed. 180. Counsel for appellant have cited a number of cases in support of their contention, but an examination of them shows that the rules therein announced are not applicable to the facts in this case.

It is claimed by appellant that the Alexander Lumber Company agreed with Freeman & Brooks that $10,-000 of the funds due the latter and held by the State treasurer could be paid to the Citizen’s State Bank on a nonlienable claim for which appellant was not surety, and that such agreement operated to so vary the terms of the obligation of the surety that it became wholly discharged from all liability on the bond, or at least to the extent of the misapplication of the $10,000. The proofs show that during the construction of the Chemistry Building, Freeman & Brooks suffered material losses on account of a strike among the workmen employed thereon and that, after the completion of the building, the Alexander Lumber Company requested of Freeman & Brooks, and the latter gave to it, an order upon the University of Illinois for the payment of its bill of lumber and mill work furnished by it and used by Freeman & Brooks in the construction of the Chemistry Building. The amount of the order was $15,709.13. It appears also that Freeman & Brooks had borrowed $10,000 from the Citizen’s State Bank, which money they used in the construction of said building, and that the University, at the request of Freeman & Brooks, had given the bank an order for the $10,000. The only testimony we have been referred to or that we have been able to find in the record in regard to this transaction is given by Mr. Brooks, who testified •that he and an officer of the bank went to Springfield for the purpose of procuring the $10,000 from the State treasurer; that on the train they met Mr. Bassett and Mr. Moore, officers of the Alexander Lumber Company, who were going to Springfield for the purpose of filing a lien for the latter company with the State treasurer for the sum of $15,709.13, the amount in the order above mentioned. Brooks testified further that they all went to the same hotel and that evening he asked Bassett and Moore not to file any lien until after he got the $10,000, and. that they agreed not to; that the next morning he and the officer of the bank went to the State treasurer as early as they could get in his office and procured the $10,000. It does not appear from the record that any such contention as now made in regard to this transaction was made in the court below. The transaction is not referred to in the original bill as amended nor in the answer of appellant to the cross-bill. No issue was made in the pleadings touching this matter. It is elementary that the bill must allege all facts necessary to entitle the complainant to relief. If the knowledge of this transaction only came to appellant after the same had been developed by the evidence, then, if it had desired to take advantage of it or seek any relief by reason thereof, it should have amended its bill and alleged the facts. Taylor v. Taylor, 259 Ill. 524; Koch v. Roth, 150 Ill. 212; Booth v. Wiley, 102 Ill. 84; Jefferson v. Kennard, 77 Ill. 246.

It is contended that part of the indebtedness in question was for extras not contemplated by the contract. The contract itself provides for the making of alterations and the method for determining the cost thereof.

It is also urged by appellant that the decree cannot be sustained in" the absence of allegation, proof and determination of the rights of other materialmen and laborers interested in the Chemistry Building contract. If there is any error in this regard, it is at the fault of appellant who filed the original bill and it cannot now complain of the insufficiency of the allegations of its own bill. The bill sought relief only as against the Alexander Lumber Company and introduced evidence only in regard thereto and the court could consider only the issues presented.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Frank Coit, Plaintiff in Error.
    1. Intoxicating liquobs, § 145*—when questions in prosecution for selling in anti-saloon territory are for jury. In a prosecution for selling liquor in anti-saloon territory, where the evidence for the State consisted chiefly of the testimony of two detectives, held that the determination of the credibility of the witnesses and the question of fact were the province of the jury and were settled by its verdict.
    2. Evidence, § 10*—judicial notice of adoption hy Danville of act providing for creation of hoard of election commissioners. The court will take judicial notice of the fact that the City of Danville, Illinois, has adopted the act providing for the creation of a board of election commissioners for such city. (Hurd’s Rev. St. 1917, ch. 46, art. 1, see. 10, H 164, J. & A. If 4938.)
    3. Elections, § 24*—control of election commissioners over elections. ' The act providing for the creation of hoards of election commissioners in cities, towns and villages adopting the act gives them substantially absolute control over all elections within their respective jurisdictions.
    4. Intoxicating liquobs, § 5*—what are duties, under Local Option Act, of election commissioners. Under the provisions of the Local Option Act, all of the duties imposed upon the clerks of their respective political subdivisions which have not adopted the act creating boards of election commissioners devolve upon such hoards where they exist.
    5. Intoxicating liquobs, § 152*—what certificate is prima facie evidence that territory is anti-saloon. The certificate provided for by section 7 of the Local Option Act (J. & A. If 4643), relative to proof of the result of an election under such act, must he held to mean one executed by the board of election commissioners when such a hoard exists in the city wherein the election was held.
    6. Intoxicating liquobs, § 162

      —when conviction of selling will he reversed for failure of proof that territory was anti-saloon. Where the certificate of the city clerk, admitted in a prosecution for selling liquor in anti-saloon territory to prove that the city had become territory of that character, was incompetent by reason of the fact that a hoard of election commissioners existed in the city and there was no other proof of the fact, the conviction cannot he sustained.

      Error to the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded.
    Opinion filed October 21, 1919.
    Actor & Actor, for plaintiff in error.
    Johr H. Lewmar, for defendant in error; I. B. Carter, of counsel.

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

   Mr. Justice Eldredge

delivered the opinion of the

court.

The indictment in this case consists of twelve counts, the first eleven of which charge that Frank Coit, plaintiff in error, on different dates within the City of Danville, Vermilion county, Illinois, said City of Danville being anti-saloon territory unlawfully sold intoxicating liquor to one J. Holt in violation of what is known as the Local Option Act. The twelfth count charged him with keeping a common nuisance. The trial resulted in a verdict of guilty under each of the twelve counts and he was sentenced to pay a fine of $20 on each of the first eleven counts and one of $50 on the twelfth count. The evidence showed the plaintiff in error was the proprietor of a restaurant at No. 125 East Main street, Danville, Illinois, at which place soft drinks were also sold. He also owned a restaurant at Westville, Illinois, and divided his time between the two places. The evidence for the State consists chiefly of the testimony of two detectives hired by the mayor of the City of Danville to investigate violations of the act in that city. They testified that a clerk working in the restaurant by the name of “Frank” sold them bottles of beer in a back room, but that they never purchased any from plaintiff in error. Another witness by the name of Wallace testified that, at his request, plaintiff in error brought him whisky from Westville and that he paid the money therefor to plaintiff in error at his place of business in D'anville. Plaintiff in error denied that he ever sold or kept for sale any intoxicating liquor in his restaurant in Danville or that any was ever sold by his clerk with his knowledge or consent. In regard to selling the whisky to Wallace, he testified that on several occasions Wallace requested him to get some whisky for him when he went to Westville and that he did so and Wallace paid him only what he had paid for the same when he purchased it. The determination of the credibility of the witnesses and the question of fact were the province of the jury and are settled by its verdict.

In order to prove that the City of Danville was in anti-saloon territory the following certificate was introduced in evidence:

“Vermilion County,

State of Illinois,

“I, the undersigned, Grace Barton, City Clerk in and for said City of Daoville, in the County and State aforesaid, do hereby certify at a regular city election for choosing officers, held in and for the City of Dan-ville, in the County of Vermilion, and State of Illinois, on the 17th day of April, A. D. 1917, the proposition ‘Shall this City become Anti-Saloon Territory’ was duly submitted to the legal voters of said City of Danville, and that the result of such vote cast upon said proposition shows that the affirmative of said proposition received the majority of the legal votes cast at said election upon said proposition, and that six thousand, one hundred and twenty-five (6,125) of the legal voters, voting on the proposition, voted ‘Yes’ and five thousand, eight hundred and ninety (5,890) of the legal voters, voting* on said proposition, voted ‘No.’

“All of which appears from the records of the Board of Election Commissioners of said City, certified to the City Council of said City, on April 21, A. D. 1917, and read at the regular meeting of said Council on April 23,'A. D. 1917, and afterwards recorded by me in a well bound book kept in my office; the same being a part of the records of said city, now in my custody and keeping, and of- which I am by law the official custodian.

“In Witness Whereof, I have hereunto set my hand and seal of said city this 17th day of December, A. D. 1917.

Grace Barton,

‘ ( Seal)

City Clerk. ’ ’

It is contended by plaintiff in error that the above is not such a certificate as is provided for in the Local Option Act because it was not executed by the Board of Election Commissioners of the City of Danville and for that reason was incompetent as evidence. The court will take judicial notice of the fact that the City of Danville had adopted the act providing for the creation of a board of election commissioners for said city. (Chapter 46, art. 1, sec. 10, 164, Hurd’s Rev. St. 1917, J. & A. 4938.)

Section 1 of the Local Option Act (J. & A. If 4637) provides among other things as follows: “The words and phrases mentioned in this section as used in this Act and in proceedings pursuant hereto' shall, unless the same be inconsistent with the context, be construed as follows: * * *

“ ‘Clerk’ shall mean, with reference to towns, cities and villages, the town, city or village clerk as the case may be; with reference to precincts in counties not under township organization, it shall mean the county clerk; and it shall mean the board of election commissioners of any city, village or incorporated town in this State in which there now is or hereafter may be a board of election commissioners, and in the provisions of this Act applicable to or within any such city, village or incorporated town; ‘legal voter’ shall mean a duly registered legal voter.”

Section 2 of this Act (J. & A. 4638) provides for the filing in the office of the “clerk” the petition necessary to cause the proposition of whether the political subdivision shall become anti-saloon territory to be submitted a.t an election. Section 4 (J. & A. 4640), among other things, sets out the form of said petition which is addressed to the “clerk” of such political subdivision. Section 5 (J. & A. ff 4641) provides that the “clerk” with whom the petition shall be filed shall give notice of such election in the manner therein provided. Section 6 (J. & A. ft 4642) provides that the “clerk” shall cause said proposition to be printed upon the ballots. Section 7. (J. & A. ft.4643) is as follows: ‘1 The clerk shall record in a well-bound book, to be kept in his office by himself and his successors, the result of the vote upon said proposition and such result may be proved in all courts and in all proceedings by such record or by the official certificate of the clerk, and in cases where such a record or certificate shows that a majority of the legal voters voting upon said proposition voted 'Yes’ the same shall be prima facie evidence that the political subdivision to which such vote was applicable has become Anti-Saloon Territory.”

The act providing for the creation of boards of election commissioners in cities, towns and villages adopting the act gives them substantially absolute control over all elections within their respective jurisdictions. Under the provisions of the Local Option Act, all the duties imposed upon the clerks of their respective political subdivisions which have not adopted the act creating boards of election commissioners devolve upon the boards of election commissioners where they exist. The election on the proposition of whether the City of Danville shall become anti-saloon territory was called and conducted by the board of election commissioners of that city. The certificate provided for by section 7 of the Local Option Act must be held to mean in this instance one executed by the Board of Election Commissioners unless it can be said that to eons'true the word “clerk” therein as the “board of election commissioners” would be inconsistent with the context of the act. We fail to see where there would be any inconsistency in such construction, but, on the contrary, it would not only be consistent, but be within the clear intention of the act to require such a certificate to be executed by the board of election commissioners. The certificate of the city clerk was incompetent to prove the fact that the City of Dan-ville was anti-saloon territory, and as there was no other proof of that material fact, the conviction cannot be sustained.

The criticism of the instructions given on behalf of defendant in error are without substantial merit and the instructions as a series presented the law fairly and the jury could not have been misled in regard thereto. For the error in admitting in evidence the certificate in question, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois for use of Winifred O’Farrell, Appellant, v. H. W. Johnson et al., Appellees.
    1. Pleading, § 220*—when court does not have authority to render judgment on merits after sustaining special demurrer to declaration. Where a special demurrer to the declaration is sustained but plaintiffs neither abide by their declaration nor amend, the court has no authority to subsequently hear evidence and find the issues for the defendants and render judgment on such finding.
    2. Pleading, § 225*—what is effect of plaintiffs’ failure to file amended declaration in accordance unth-rule after special demurrer is sustained. Where a special demurrer to the declaration is sustained, plaintiffs should be ruled to file an amended declaration by a day certain and, upon their failure to do so, the suit may be dismissed.
    3. Pleading, § 223*—what is proper form of judgment where plaintiffs abide by declaration after special demurrer has been sustained. Where plaintiffs abide by their declaration, a special demurrer to which has been sustained, the proper form of judgment is that they take nothing by their suit and that defendants go hence without day, etc.
    4. Sheriffs and constables, § 95*—when declaration in action on sheriff’s bond is not subject to demurrer. The fact that one of the counts in the declaration in an action on a sheriff’s bond for a wrongful levy on certain personal property alleges certain damages which are not recoverable under the law with others which are recoverable does not make such count subject to demurrer, since on the trial only such damages would be permitted to be recovered as were authorized by law.
    5. Limitation of actions, § 108

      —how defense can be raised. The defense of the statute of limitations in an action at law cannot be raised by demurrer but only by plea.
    Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded with directions.
    Opinion filed October 21, 1919.
    George D. Chafes, for appellant.
    R. C. Neff, for appellees.

      See Illinois Notes nicest. Vols. XI to XV, and Cumulative Quarterly, same £ot)ic and section number»

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an action of debt brought to recover damages upon a bond executed by H. W. Johnson, sheriff of Christian county, and several of his sureties, appellees. The declaration consists of three counts and is based upon the wrongful levy by Johnson, as sheriff, upon certain personal property of Winifred 0 ’Farrell. Appellees filed- a special demurrer to these counts. The first cause set out in the demurrer has not been argued and is therefore not before us for consideration, probably, for the reason that it is entirely without merit. The second and fourth causes are the same and to the effect that the damages sought to be recovered in the second count are not within the written obligation. The third cause is to the effect that the declaration shows on its face that the cause of action is barred by the statute of limitations and there are no averments which will take it out of the operation of the statute?

On September 20, 1918, the record shows that the demurrer to the declaration was sustained. On October 21, 1918, the following appears in the record:

“This day come the parties to this cause by their respective attorneys, and the Court having heard the evidence produced herein, the arguments of counsel, and being well and sufficiently advised in the premises, finds the issues for the defendants and against the plaintiff.

“Therefore it is ordered by the Court that a judgment be, and the same is hereby rendered against the plaintiff in favor of the defendants for the amount of the costs in this behalf expended herein, and that they have execution therefor.”

The record nowhere shows that appellants abided by their declaration after the demurrer thereto had been sustained. The court had no authority to hear evidence in a suit where there was no declaration and find the issues for the defendants and render judgment on such finding after a demurrer had been sustained to the declaration. Appellants should have been ruled to file an amended declaration by a day certain and, upon their failure to do so, the suit could have been dismissed for failure to comply with the rule. If appellants had abided by their declaration, then the proper form of judgment would have been that they take nothing by their suit and that defendants go hence without day, etc.

The demurrer, however, should have been overruled. The fact that the second count may have alleged certain damages which are not recoverable under the law with others which were recoverable would not make that count subject to demurrer, as on the trial only such damages would be permitted to be recovered as were authorized by law. As to the statute of limitations, that defense in an action at law cannot be raised by demurrer, but only by plea. This is an elementary rule of common-law pleading and has been applied even when it appears on the face of the declaration that the limitation has expired. Gunton v. Hughes, 181 Ill. 132; Heimberger v. Elliot Frog & Switch Co., 245 Ill. 448.

The judgment of the Circuit Court is reversed and the cause remanded with directions to overrule the demurrer to the declaration.

Reversed and remanded with directions.


text:
    A. C. Caldwell, Appellant, v. J. W. Moffatt et al., Highway Commissioners, Appellees.
    1. Roads and bridges, § 61*—when posting of notices in proceedings to lay out and open highway is not insufficient. Even if one of the notices which the statute, relating to the laying out and opening of highways over private lands, requires to be posted in three of the most public places in the town or district [Hurd’s Rev.
    St. 1917, ch. 121, sec. 76, Call. 1916 Stat. f 10000(76)], etc., was posted in what was not strictly one of the most public places, the failure to conform to a strict construction of the law in respect to such one notice—no complaint being made of the location of the other two notices posted—was but a mere irregularity and did not destroy the jurisdiction of the highway commissioners.
    2. Roads and bridges, § 54*—when petition for laying out and opening of highway is not insufficient. The fact that a tenant in possession with an unrecorded contract for a deed was not named in the petition for the laying out and opening of a highway does not deprive the highway commissioners of jurisdiction.
    3. Roads and bridges, § 54*—when petition for laying out and opening of highway is not insufficient. The mere fact that a railroad company whose right of way will be crossed by the proposed highway is not mentioned as an owner in the petition for the laying out and opening of such highway does not deprive the highway commissioners of jurisdiction.
    4. Roads and bridges, § 54*—when petition for laying out and opening of highway is not insuffi'dent. It could not have been the intention of the legislature that highway commissioners could not acquire jurisdiction of the subject-matter of a petition for the laying out and opening of a highway unless such petition set out with strict accuracy every owner who had legal title to any of the lands involved.
    5. Roads and bridges, § 59*—statutory notices of laying out and opening of highway are jurisdictional. Notices required to be given by the statute in proceedings for the laying out and opening of a highway are jurisdictional and, unless they are given in the manner required, the highway commissioners are not authorized to act.
    6. Roads and bridges, § 59

      —when proceedings for laying out and opening of highway will he void for want of notice to railroad company. When, in proceedings for the laying out and opening of

      a highway which will cross the right of way of a railroad company, notice is not served upon the company as required by Hurd’s Rev. St 1917, ch. 121, secs. 103, 104 [Call. 1916 Stat. 10000(103), 10000"(104)], the proceedings will be void.
    7. Roads and bridges, § 102*—certiorari is proper way to review record in proceedings to lay out and open road. The common-law writ of certiorari is a proper way to review the record of highway commissioners in proceedings to lay out and open new roads in order to determine the validity of their acts.
    . 8. Roads and bridges, § 86*—jurisdiction of equity to restrain laying out and opening of highway. Equity has jurisdiction of a suit to restrain the laying out and opening of a highway on the ground that the proceedings therefor are void.
    9. Roads and bridges, § 82

      —remedies available to person aggrieved by laying out and opening of highway. Apparently, proceedings for the laying out and opening of a highway furnished one of the few instances where a person aggrieved has concurrent legal and equitable remedies.
    Appeal from the Circuit Court of Tazewell county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded with directions.
    Opinion filed October 21, 1919.
    J. A. Cameron and Jesse Black, Jr., for appellant.
    Wilkins & Brbcher, for appellees.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

A. C. Caldwell, appellant, filed his.bill in equity in the Circuit Court of Tazewell county to restrain appellees as highway commissioners of the Town of Groverland in said county from laying out and opening a public road therein. Upon a hearing the court entered a decree dismissing the bill for want of equity, to reverse which this appeal is taken.

On July 3, 1916, a petition was presented to the highway commissioners signed by eighteen landowners residing in said town within 2 miles of the proposed road, requesting that said road he laid out and opened for public use. Such proceedings were had that the commissioners entered their order granting the prayer of the petition and steps were taken for the assessment of damages to appellant. The damages were assessed on the trial before the justice of the peace from which an appeal was taken to the Circuit Court where on another trial they were again assessed. At the time the petition was presented to the commissioners, the legal title to the land in controversy here was in A. C. Danforth and the petition sets out that A. G-. Danforth was the owner of the land. It appears that some time prior thereto appellant had owned the land and had given a mortgage thereon to Danforth. Danforth had foreclosed the mortgage and the land had been deeded to him so that at the time the petition was presented to the commissioners the record title to the land was in Danforth. Appellant, however, was in possession under a contract of reconveyance upon his payment within a certain time of $12,000 and interest. This contract, however, had not been recorded when the petition was presented to the commissioners. The proposed public road crosses the right of way of the St. Louis, Springfield and Peoria Railroad Company. Neither appellant nor the railroad company were mentioned in the petition as an owner of any of the land sought to be taken.

It is averred in the amended bill that the commissioners were without jurisdiction to enter the preliminary order granting the prayer of the petition for the reasons that the interest of appellant was not mentioned in the petition nor did the petition mention the railroad company as an owner, and failed to aver that the landowners named in the petition, whose lands the proposed road would cross, were all of the owners so far as known. The amended bill also avers that the commissioners were without jurisdiction because one of the three public notices required to be posted was not posted in one of the most public places in said town and because no notice as required by law was served upon the railroad company.

The particular notice which appellant claims was not posted as required by law in one of the most public places in the township was posted on a telegraph pole at what was called “Caldwell Station,” a stopping point on the railroad where cars received and discharged passengers who resided in the vicinity of the proposed road and very close to the dwelling of appellant. No complaint is made of the location of the other two notices posted. It was posted where people living in the vicinity of the proposed highway got off and on the interurban cars. Even if this was not, in fact, strictly one of the most public places in the town, the failure to conform to a strict construction of the law in respect'to this one particular notice was but a mere irregularity and did not destroy the jurisdiction of the commissioners. Wright v. Highway Com’rs of Town of Middlefork, 145 Ill. 48; Highway Gom’rs of Town of McKee v. Smith, 217 Ill. 250. The fact that appellant was not named in the petition would not deprive the commissioners of jurisdiction. The statute requires that.the names of the owners of the land shall be set forth, if known, and, if not known, the petition shall so state. The record title to the land was in Danforth and he was, in fact, the owner of the land. Appellant did not own the land, his only interest therein was by virtue of a contract with the owner by which he had an option of purchasing the land for a certain price within a specified time, and this option was unrecorded. He was simply a tenant in possession with an unrecorded contract for a deed. The statute does not require that tenants of lands, over which the proposed road would cross, should be made parties. The railroad company should have been mentioned in the petition as an owner, however, but this omission would not deprive the commissioners of jurisdiction. To hold that the commissioners could acquire no jurisdiction of the subject-matter of a petition of this character unless the petition set out with strict accuracy, every owner who had legal title to any of the lands involved could not have been the intention of the legislature when it passed the act for the simple reason that in many cases to so set out the actual owners would be a practical impossibility, and the petitioners presenting such a petition under such a strict construction would have to have very accurate information and the commissioners themselves would have to act as a judicial tribunal for determining titles. The omission of the names of the railroad company as an owner in the petition, while an irregularity, would not of itself make the petition void and deprive the commissioners of jurisdiction.

There are certain steps, however, which must be taken before jurisdiction will be conferred upon the commissioners to open highways .over the private lands of others. Chapter 121, Hurd’s Eev. St. provides as follows:

“Sec. 76 [Call. 1916 Stat. (76)]. They shall give at least ten days ’ notice of the time and place of such examination and hearing by posting notices in three of the most public places in the town or district in the vicinity of the road to be widened, altered, vacated or laid out. ’ ’

“Sec. 103 [Call. 1916 Stat. ]f 10000(103)]. In addition to the notices now required by law in proceedings for laying out, locating or opening of public roads, similar notices shall be served on any railroad company across or alongside of whose railroad it may be proposed to locate a public road.”

“Sec. 104 [Call. -1916 Stat. ][ 10000(104)]. The notices as provided by this Act shall be served by delivering a copy thereof to the station agent of any such railroad company nearest to the proposed location of such projected public roads.”

Notices required to be given by the statute in proceedings of this character are jurisdictional and unless they have been given in the manner required, the commissioners are not authorized to act. Hamilton v. Highway Com’rs of Lovejoy Tp., 203 Ill. 269; Highway Com’rs of Town of McKee v. Smith, 217 Ill. 250; Matthiessen v. Ott, 268 Ill. 569. It is alleged in the amended bill and the proofs show that no notice of any kind was ever served upon the railroad company by delivering a copy thereof to its agent or otherwise. In the case of Creamer v. Schmidt, 204 Ill. App. 621. we construed sections 103 and 104 and held that where a proposed road is to cross the right of way of a railroad company, service of the notice on the railroad company as required by these sections is mandatory and jurisdictional and, without which, the commissioners have no authority to act. Many reasons readily suggest themselves why the legislature should provide that public highways should not be laid across a railroad right of way without giving notice to the railroad company which can only act through its agents. Railroad crossings are dangerous places and the law requires railroad companies to perform certain duties in regard thereto for the public safety. It is probable the legislature had this in mind when sections 103 and 104 were adopted. The service of the notice on the railroad company was jurisdictional and the proceedings of the commissioners are void.

It is urged by appellees that appellant has a complete remedy of law by a writ of certiorari and that a bill for injunction will not lie. For a great many years it has been held consistently that the common-law writ of certiorari is a proper way to review the record of the highway commissioners in-proceedings to open and lay out new roads in order to determine the validity of their acts. Highway Com’rs of Town of Geneseo v. Harper, 38 Ill. 104; Hyslop v. Finch, 99 Ill. 171; Bailey v. McCain, 92 Ill. 277; Smith v. High way Com’rs of Hudson Tp., 150 Ill. 385; Highway Com’rs of Town of McKee v. Smith, supra; Matthiessen v. Ott, supra. The Supreme Court, however, in the case of Frizell v. Rogers, 82 Ill. 109, specifically held: “The equitable jurisdiction in such eases is well settled.” This case was followed and cited in Newby v. Highway Com’rs, 21 Ill. App. 247; Whittaker v. Gutheridge, 52 Ill. App. 462. The case of Frizell v. Rogers, supra, has never been overruled and apparently this is one of the few instances where equitable and legal remedies have concurrent jurisdiction.

The decree of the Circuit Court is reversed and the cause remanded with directions to enter a decree granting the relief prayed for in the amended bill.

Reversed and remanded with directions.


text:
    The People of the State of Illinois, Defendant in Error, v. John Pokora, Plaintiff in Error.
    1. Criminal law, § 471*—when court may decline to review points because of irregularity of record. On error by one convicted of violating the liquor law, held that the court might on account of the irregularity of the record, very appropriately decline to consider any of the points relied on for reversal.
    2. Criminal law, § 530*—when refusal to quash venire is not error. A contention that it was error in a criminal prosecution for the trial court to refuse to quash the venire on the ground that the jurors were not chosen in accordance with law cannot be sustained when it is not shown that defendant received any injury nor that any of his rights were prejudiced on account of the alleged irregularity.
    3. Criminal law, § 449

      —■when error in refusal to quash venire is not available in Appellate Court. Error, in a criminal prosecution, in the refusal of the trial court to quash the venire on the ground

      that the jurors were not chosen in accordance with law cannot be availed of by defendant when the evidence introduced in support of the challenge to the array and the motion to quash the venire are not preserved by any bill of exceptions which is shown by the record to have been filed in the cause.
    4. Indictment and information, § 17*—when verification of information is sufficient. It will not be error to overrule a motion to quash the information in a criminal prosecution on the ground that each count was not separately verified when there was a proper verification at the end of the information which applied to all of the counts therein.
    5. Criminal law, § 447*—necessity that rulings in matter of change of venire he made part of record hy hill of exceptions. The rulings of a court upon petitions and motions for change of venue can be reviewed only when they are made a part of the record by a bill of exceptions.
    6. Criminal law, § 60*—u>hat is time for application for change of venue for prejudice on part of judge. An application by the defendant in a criminal prosecution for a change of venue on the ground of prejudice on the part of the judge must be made at the earliest moment possible after the knowledge of the fact of the prejudice becomes known.
    7. Criminal law, § 61*—when petition for change of venue for prejudice on part of judge is fatally defective. A petition by the defendant in a criminal prosecution for a change of venue on the ground of prejudice on the part of the judge is fatally defective when it does not state when knowledge of the. prejudice first came to the defendant.
    8. Criminal law, § 55*—when motion for change of venue for prejudice on part of judge is properly overruled. Overruling of the motion of the defendant in a criminal prosecution for a change of venue held on the ground of prejudice on the part of the judge, under the circumstances, not error.
    9. Courts, § 141

      —fact that Appellate Court considers questions, notwithstanding defective record, is not to he taken as establishing precedent. The fact that the Appellate Court passes upon questions raised in the brief and argument by counsel for plaintiff in error, convicted of crime, notwithstanding the defective condition of the record, is not to be taken as establishing a precedent that the court will review errors assigned on alleged records of like character in the future.
    10. Appeal and error—tohat proper preparation of record involves. The proper preparation of a record involves not a question of technicality but the question of the integrity of the record itself.

      Error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 21, 1919.
    John Gr. Friedmeyer, for plaintiff in error.
    O. F. Mortimer, for defendant in error; Edward Free and James Weldon, of counsel.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Plaintiff in error was convicted in the County Court of Sangamon county upon three counts of an amended information filed by the State’s Attorney of said county, charging in substance that on the 11th day of March, 1918, in the county of Sangamon and the State of Illinois, plaintiff in error not then and there having a license to keep a dramshop, intoxicating liquor in a less quantity than five gallons, then and there unlawfully and wilfully did sell in the township of Wood-side, the said township of Woodside being outside of the limits of an incorporated city, village or town in said county and State. He was sentenced to pay a fine of $100 on each of the three counts and also to be confined in the county jail for a period of 90 days on each of the counts, each of said 90 days to run consecutively.

Buie 23 of this court provides in part as follows: “The brief of appellant or plaintiff in error shall contain a short and clear statement of the case, including, * * *; and fifth, the errors relied upon for a reversal.” Plaintiff in error in his brief and argument after a statement of the case sets out: “Points Belied on. 1st. The jury which tried this cause was an unlawful jury and not summoned in accordance with the statute. 2nd. That the person selecting the thirty-six men and additional jurors so as to make the panel forty, was not authorized by law to summon jurors. 3rd. The motion to quash the venire and return and the challenge to the array, was properly supported by proof and should have been allowed. 4th. The alleged information against the defendant should have been quashed.” 5th. The petition for change of venue from the judge, was in accordance with the provisions of the statute and it was imperative on the court to allow the change of venue. 6th. The Court had no jurisdiction to hear said cause and enter any judgment or sentence therein.” No point is made in the foregoing that the evidence was not sufficient to prove that the plaintiff in error was guilty of the offense charged beyond reasonable doubt.

We might very appropriately decline to consider any of the points relied upon for reversal on account of the irregularity of the record. The court record proper does not show that any bill of exceptions was ever in fact filed with the clerk. It is impossible to tell accurately where the court record proper ends and the bill of exceptions commences. There is no statement or certification of any kind to indicate that the alleged record contains all the evidence introduced either in support of the several motions that were made or on the trial of the case upon the merits. On page 174 of the alleged record commences what purports to be a bill of exceptions. There is no court record to indicate that it ever was in fact filed in the cause, and it contains only the evidence and proceedings heard and had upon the trial of the case upon the merits.

The first three points relied upon all involve the same question and. are based upon the refusal of the court to quash the venire on the ground that the jurors were not chosen in accordance with law. This contention cannot be sustained for two reasons: First. It is not. shown that plaintiff in error received any injury or that any of his rights were prejudiced on account of the alleged irregularity in the summoning of

the jury. Siebert v. People, 143 Ill. 571. Second. The evidence introduced in support of the challenge to the array and the motion to quash the venire has not been preserved by any bill of exceptions which is shown by the record to have been filed in the cause.

It is next urged that the court erred in overruling the motion to quash the amended information on the ground that each count was not separately verified. There was a proper verification at the end of the amended information which applied to all counts therein and thi.s was sufficient.

The fifth and sixth points relied upon for a reversal are the same in fact and present for consideration the action of the court in overruling the motion made for change of, venue. We have been unable to find anything which purports to be a bill of exceptions preserving this motion and making it a part of the record. The rulings of a. court upon petitions and motions for change of venue can only be reviewed when they are made a part of the record by a bill of exceptions. Schlump v. Reidersdorf, 28 Ill. 68; Bedee v. People, 73 Ill. 320; Heacock v. Hosmer, 109 Ill. 245; Macierz Polska of U. S. of N. A. v. Czarnecki, 272 Ill. 34. However, as this question has been argued very forcibly by both parties, we will consider it in the light of what are concededly the facts. Among other proofs in the record is a notice signed by the attorney for plaintiff in error bearing date July 1, 1918, and addressed to the State’s Attorney notifying the latter that on July 6, 1918, the former would present a petition for a change of venue from the judge of the County Court of Sangamon county in a large number-of cases including the case at bar. There is nothing whatever in the record to show that this notice was ever served upon the State’s Attorney. On the 3rd day of June this case was set for trial by the County Court for July 1. On June 24, plaintiff in error, by his counsel, made a motion for a continuance of the trial of the case until the August term. This motion was overruled. Counsel for plaintiff in error then made a motion to continue said case for one week from July 1, which was granted by the court and the cause continued for one week. On July 8, when the case was called for trial, plaintiff in error, by his counsel, made a motion to quash the special venire, which was overruled and thereupon a challenge to the array was made by plaintiff in error, which was overruled, and also on the same day a motion to quash the amended information was made, which was denied. On July 19, defendant made a motion and filed a petition for change of venue from the judge of the County Court. Two different petitions appear in this alleged record. One appears to have been sworn to by plaintiff in error July 5, 1918, and the other to have been sworn to on July 3, 1918. The first petition above mentioned has attached to it two separate affidavits executed, respectively, by C. I). Canhan and Ed. French as reputable persons. These affidavits were sworn to by those affiants on July 19. The latter petition had attached to it supporting affidavits executed July 3 by Frank M. Scherzinger and George J. Gaa, respectively, as reputable persons. Which one of these petitions and motions was acted upon, we have no means of knowing. The petitions are different in verbiage and are supported by affidavits of different persons. It is also elementary that an application for a change of venue must be made at the earliest moment possible after the knowledge of the fact of the prejudice of the judge becomes known. It is apparent that this knowledge, if it had any foundation, was known to plaintiff in error at or prior to July 1, the date on the notice signed by his counsel heretofore mentioned. After this date two motions for a continuance, a motion to quash the information, a motion to quash the venire and a challenge to the array were made before the judge from whom the change of venue was subsequently sought. It was not until July 19 when the case was actually called for trial that the defendant in error made his motion and presented his petitions for a change of venue to the trial judge. The petitions themselves were executed by plaintiff in error on July 3 and 5, respectively. They were withheld by counsel until all the preliminary motions before the judge were made and passed upon and until the case was actually called for trial. In fact, in one place in the alleged record before us appears the following: “Be it remembered that thereupon the jury Was empaneled in said cause by the court over the objection of the defendant, and counsel for prosecution and for the defendant, asked the following interrogatories of each of the following jurors:—Objection overruled and deft, excepts. Mr. Friedmeyer:—Now, at this time I desire to enter a petition for a change of venue in this case. The Court:—The petition will be denied; To which ruling of the Court the defendant by his counsel then and there duly excepted.” (Bee. p. 111.)

This would indicate that the motion for a change of venue was not made until after the jurors had been examined and passed upon. Neither one of the petitions for the change of venue states when knowledge of the prejudice of the judge first came to plaintiff in error, and are fatally defective for that reason. The informations were filed at the February term of the County Court. The trial was held at the June term of said Court. Section 6 of the Venue Act (J. & A. if 11492) provides that no application for a change of venue after the first term shall be allowed, unless the party applying shall have given to the opposite party 10 days ’ previous notice of his intention to make such application, except where the causes have arisen or come to the knowledge of the applicant within less than 10 days before the making of the application. There are no allegations in either of the petitions sufficient to bring them within the conditions mentioned in this section. There is no proof that any notice whatever was ever served upon the State’s Attorney. All the proof there is on the subject shows that the alleged prejudice of the judge was known to plaintiff in error "much longer than 10 days before he presented his petitions for a change of venue.

The fact that we have passed upon questions raised in the brief and argument by counsel for plaintiff in error, notwithstanding the defective condition of this record, will not be taken hereafter as establishing a precedent that this court will review errors assigned on alleged records of like character in the future. The rules for preparing a court record and bill of exceptions are few and simple. They are established as well for the protection of litigants as for the convenience of the reviewing court. A properly prepared and authenticated record eliminates the possibility of mistakes and fraud therein, and unless a record including the bill of exceptions is thus properly prepared and authenticated,' a reviewing court has no assurance that it has before it a record of the real proceeding. The proper preparation of a record involves not a question of technicality, but the question of the integrity of the record itself.

The judgment of the County Court is affirmed.

Affirmed.