text:
    Julia Deweese, Appellee, v. Jacob Husmann, Appellant.

      Nuisances—wiiat does not lar action for damages arising from. It is no bar to an action for the recovery of damages that the plaintiff has made no objection or protest against the creation or continuance of a nuisance from which the injury and resulting damages arose.
    Trespass. Appeal from the Circuit Court of Mason county; the Hon. Guy R. Williams, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Blinn & Covey, for appellant.
    W. E. Stone and Stone & Oglevie, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Julia Deweese recovered a judgment in the Circuit Court of Mason county in the sum of fifty dollars against Jacob Husmann for damages alleged to have resulted to the premises of Deweese by the action of Husmann in so filling his own lot as to set the water back upon the lot of Deweese. Husmann appealed.

The merits of the controversy are so palpably in favor of the claim as made by Deweese that no extended discussion of the case can be of any avail.

The natural course of the water was from the premises of Deweese upon and across the lot of Husmann, who in improving his lot and in building a sidewalk upon the street line thereof, so raised and elevated his own premises, as to overflow the lot of Deweese and cause the damages sued for.

Husmann insists that, because Deweese made no objection at the time the improvements were made and the filling done that caused the overflow, Deweese is now estopped from recovering any damages resulting from the doing of such work.

We do not so understand the rule. “It is no bar to an action for the recovery of damages, that the plaintiff has made no objection or protest against the creation or continuance of a nuisance.” Amer. & Eng. Encyclopedia Law, Second Ed., Vol. 21, page 723.

The damages recovered were moderate in amount and the judgment was right.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Ramsay

license: Public Domain

text:
    Levi Seass, Appellee, v. N. S. Monroe et al., Appellants.
    1. Commissioners oe highways—effect of records of. The records of highway commissioners cannot be varied by parol.
    2. Injunction—when does not lie against highway commissioners. An injunction does not lie to restrain highway commissioners from paying for merchandise lawfully purchased by them where the purchase was duly made and the record of the order to purchase is in conformity to law.
    Bill in chancery. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded, with directions.
    Opinion filed November 17, 1908.
    Harbaugh & Thompson and W. K. Whitfield, for appellants.
    Walter Eden, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Levi Seass filed his bill in chancery in the Circuit Court of Moultrie county against appellants to restrain Fulton and Dolan from paying from the funds of the Town of Jonathan Creek, to Monroe, the sum of $600 for the purchase of one “Jumbo Monroe Eoad Machine.” Injunction was ordered as prayed for in the bill and afterward a motion was made to dissolve the injunction which was heard upon evidence offered by the respective parties. The court refused to dissolve the injunction and this appeal followed.

In his bill for injunction Seass alleged that he was the owner of property liable to asessment for taxes in the town of Jonathan Creek; that John Fulton, L. L. Dolan and A. J. Sexton were the commissioners of highways of said town, duly elected and qualified; that on the 29th day of February, 1908, they made a contract with N. S. Monroe, by the terms of which they agreed to buy from him one “Jumbo Eoad Machine” and to pay him therefor the sum of $600, which agreement was in the words and figures, to wit:

“Feb. 29, 1908, CadweU, HI.

N. S. Monroe, Arthur, Ill.

Please deliver to Jonathan Creek Township at Arthur, county of Moultrie and state of Illinois, on or about the 20th day of March, 1908, one Jumbo Monroe road machine with water tank, two coal boxes, for which the undersigned agree to pay you or order six hundred dollars, settlement to be made cash, order or warrants of roads, as follows, $600 cash.

J. W. Osborn,

Town clerk.

Com. of Highways

f John Fulton. 1L. L. Dolan.”

that the complainant had examined the records of said commissioners of highways and had been unable to find any record of any meeting at which said commissioners had ordered or made such purchase. In the bill it was further alleged that said order for such machine was made without legal authority to bind said town, but that Monroe had filed said contract with the clerk of said commissioners of highways on February 29, 1908, and that (as complainant was informed and believes) said Fulton and Dolan, as commissioners, intended to accept said road machine and pay for the same out of the funds of said town.

In an amendment to said bill it was alleged that said town was not in need of said road machine, and that the purchase thereof was a needless waste of the funds of said town, and in a supplemental "bill it was set up that since the filing of the original bill the commissioners of highways had held a meeting on the twentieth day of March,-1908, and had amended the record of the meeting held on the 29th day of February, 1908, and asking that the complainant might have the same relief as he could have had if the proceedings of March 20, 1908, had not been had.

Upon the hearing it developed that at a regular meeting of the highways commissioners held at the office of the town clerk, when all three of the commissioners were present, a Mr. Monroe was in attendance and submitted a proposition to sell to the commissioners a road machine for $600; that during the discussion concerning the purchase all three commissioners and Monroe took part, and that the order hereinbefore quoted was signed by Fulton and Dolan, a majority of the commissioners, and delivered to Monroe, who gave it to the clerk, with the request made, in the presence of all three commissioners, that he put the order on record.. The clerk placed the order on record, but did not write up the minutes of the meeting until afterward, and when he did so he signed the names of the commissioners thereto, agreeably to a custom to that effect prevailing among such commissioners.

In the record of the proceedings of February 29, 1908, as afterward made tip by the clerk it was recited that “Commissioners purchased one road leveller of the Monroe road machine company as per contract and terms recorded, etc. ’ ’ On the 20th day of March, 1908, at a special meting of said commissioners, at which all three commissioners were present, it was determined that the record of said meeting of February 29 did not fully set forth the proceedings of that date and it was resolved that the record be amended to show the true proceedings of that date in compliance with which resolution the records as amended were made to show that at the meeting of February 29, 1908, an agent of N". S. Monroe was present and proposed to sell to said commissioners one “Jumbo Monroe road machine for $600; that after full consideration it was decided by a majority of said commissioners to accept said proposition; that thereupon it was ordered by the said board of commissioners of highways that the said commissioners of highways enter into a contract with said N. S. Monroe for the purchase of one Jumbo Monroe road machine for the price of $600; that thereupon said commissioners of highways did enter into a contract with said N. S. Monroe for the purchase of one Jumbo road machine for the price of $600.” At such meeting of March 20, 1908, it was resolved ‘ That the president of the commissioners of highways of said town be and he is hereby directed to sign the record of the meeting of the commissioners of highways, held on February 29, 1908, as amended, and also the record of this meeting, and that if he refuses to do so, that a president pro tempore be appointed to sign the record of said meeting of February 29, 1908, as amended and the record of this meeting,” and in pursuance of such resolution L. L. Dolan was elected by a majority vote president pro tempore. The record of March 20,1908, as thus made was signed by all three commissioners and the town clerk. Upon this showing the injunction should have been dissolved. The three commissioners were duly elected and qualified and the meeting of February 29, 1908, was a regular meeting. All three commissioners were present and they, or a majority of them, were competent to enter into the contract involved. They had full control of the minutes of their proceedings and if it turned out that any of their proceedings had been incorrectly transcribed or not transcribed at all by the clerk, it was not only within their province, but it was their duty to see that the records should be so amended or written up as to truthfully and accurately record their acts as such commissioners ; and when so made parol evidence was incompetent to vary them.

There is no equity in appellee’s claims and the decree of the lower court is reversed with directions .to such court to dissolve the injunction and dismiss the bill for want of equity.

Reversed and remanded with directions.


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    Gentry Brothers, Appellees, v. City of Lincoln, Appellant.

      Dubess—when payment made under. The payment of a license fee is involuntary where made in order to enable the parties making the same to do a lawful act and to prevent police interference, and the amount so paid, if illegally exacted, may be recovered where the payment has been made under protest.
    Action commenced before justice of the peace. .Appeal from the Circuit Court of Logan county; the Hon. T. M. Habéis, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Uri Kissinger and Peter Murphy, for appellant.
    S. L. Wallace, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

Gentry Brothers began a suit before a justice of the peace against the City of Lincoln to recover the sum of $40 alleged to have been paid by them to the clerk of said city under protest, and which appellees claimed the city had no right to retain. There was a judgment in favor of Gentry Brothers for the sum claimed and an appeal prosecuted by the city to the Circuit Court of Logan county, where upon a trial before a jury a verdict was returned in favor of said Gentry Brothers for the amount claimed. There was a judgment rendered upon the verdict and the city appealed.

Gentry Brothers own and manage a show which gave an exhibition in the City of Lincoln on the 26th day of June, 1907. At the time there was in force, and had been for some time prior to that date, an ordinance of said city which, among other things, provided that every show or exhibition should pay into the treasury for license fees sums as follows: “For an exhibition of a circus the sum of $35 per day; for an exhibition of a menagerie the sum pf $25 per day; for an exhibition of a circus and menagerie combined the sum of $50 per day; for any show of the class usually known as a dog, pony, monkey or bird show the sum of $10 per day, or $30 for one week or less.”

It seems from the evidence that on the day before the show was to exhibit at Lincoln the mayor was consulted as to the amount of the fee to be paid, when he said to the city clerk that it should be $10 and this amount was stated to Gentry Brothers on the morning of June 26th as the amount which they would have to pay to secure a license. Some controversy arose as to the number of complimentary tickets which appellees should furnish to the mayor or clerk or both of them, and the agent of appellees refusing to meet the suggestions made upon this point tendered and left upon the desk of the city clerk the sum of ten dollars as the amount of the license fee which appellees should pay. This tender was refused by the clerk who at that time issued no license to appellees. Afterward and during the forenoon of June 26th appellees attempted to have a parade upon the streets of the city, when it was forbidden by the chief of police of said city, who refused to allow the parade to start until a license had been procured. The mayor had, in the meantime, announced that he would insist upon a fee of $50 and that he would not direct the issuing of a license for any less sum.

Matters were in this condition and the starting of the parade was delayed considerably, when Gentry Brothers, to prevent further delay, paid to the city the amount of the increased demand, $40, under protest, and this suit was brought to recover back the amount so paid under protest.

The main question for us to determine is whether or not the jury were warranted in finding that the show of appellees came within the class “usually known as a dog, pony, monkey or bird show” for which a license fee of $10 per day only was required to be paid by the terms of said ordinance. Several witnesses testified as to the character of the exhibition given by appellees which, from the evidence, would seem to have consisted mainly of the exhibition of trained animals, including ponies, dogs, pigs, monkeys, elephants, camels and sheep. A careful analysis has been made by counsel for appellant of the terms “circus” and “menagerie” to convince us that under the evidence Gentry Brothers were running a circus, and not a dog and pony show.

We do not, however, regard the question as purely academic, but rather one to be determined by the application or use of common knowledge and understanding. The ordinance provides for a show of the class “usually known as a dog, pony, monkey or bird show” a license fee of ten dollars only shall be required. It was. for the jury to say upon the evidence, whether or not the show in question was one “usually known” as a dog and pony show, and we are not disposed to disturb their finding in that respect.

Appellant contends that’ appellees, under the circumstances, cannot sue for a return of the $40 and argues that the payment was made voluntarily and n'ot under duress.

We think the evidence showed such payment was compulsory and made under such a pressure as to render it involuntary. Appellees had a parade all ready to move and sought to move it when the chief of po-' lice, by force of his station as such officer, forbade and prevented it, and would not allow it upon the streets of the city until the extra $40 had been paid. The extra amount was paid by appellees to enable them to do an act which they had a lawful right to do and to prevent the chief of police from interfering with them in the exercise of such right. Under such circumstances the payment was involuntary. City of Chicago v. Waukesha Brewing Co., 97 Ill. App. 583, and cases there cited.

There is no prejudicial error in this record and the judgment is affirmed.

Affirmed.


text:
    Anna Clifford, Appellee, v. St. Louis & Springfield Railway Company, Appellant.

      Verdict—when not disturbed as against the evidence. A verdict not manifestly against the weight of the evidence will not he set aside on review in the absence of error of law.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Graham & Graham, for appellants.
    Charles E. Selby and W. K. Zewadski, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Anna Clifford brought suit in the Circuit Court of Sangamon county against the St. Louis and Springfield Bailway Company to recover damages sustained by her resulting from the alleged negligence of the servants of the railway company in the management of a motor car while she, Clifford, was in the act of alighting from the car. There was a verdict in Clifford’s favor in the sum of $500, upon which judgment was rendered. This appeal followed.

The sole question urged in this appeal is that the verdict is so manifestly against the weight of the evidence that it should be set aside.

Appellee was a passenger upon one of the cars of appellant at the time of her injury. She testified that after the car had stopped and while she, in company with others, was in the act of getting off the car, the car was started with a lurch or sudden jerk and she was thrown against the back of the car and injured.

Agnes Neerman gave testimony corroborating appellee to the effect that the car was started suddenly while appellee was. in the act of alighting from the car and that she was thrown with violence by the action' of the car.

Appellant’s evidence tended strongly to show that the car was not started with any jerk or sudden movement, and that appellee was not in the exercise of due care for her own safety at the time of the injury, and while it may be that a verdict in favor of appellant could have been sustained upon all the evidence, yet we are not disposed to hold that the verdict is so manifestly or clearly against the weight of the evidence that the judgment should be reversed solely upon that account.

The judgment is affirmed.

Affirmed.


text:
    Fred Collison, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Practice—when manner of selecting jury not ground for reversal. The fact that a defendant is required to examine and pass upon a second panel of four jurors before the same has been accepted by the plaintiff, will not reverse in the absence of a showing of prejudice.
    2. Practice—when modification of special interrogatory proper. A special interrogatory tendered as follows:
    “Could the deceased, while upon the defendant’s right of way, have, by the exercise of due diligence for his own safety, discovered the approach of the train which struck him, in time to have avoided the injury which paused his death?”
    is properly modified so as to read in the following form:
    “Could the deceased, under the conditions shown by the evidence to have existed and which surrounded him, just before and at the time of his injury, by the exercise of the due diligence for his own safety, have avoided the injury which caused his death?”
    3. Evidence—what competent to show train intestate intended, to talce. Nothwitstanding the plaintiff’s intestate prior to the accident which resulted in his death had stated he intended to board a particular train, it is none the less competent for the plaintiff to introduce evidence tending to show that such intestate in fact intended to take another and different train.
    4. Evidence—when bulletins competent. Where the question is as to what train the plaintiff’s intestate intended to take just prior to the accident which resulted in his death, it is competent to introduce bulletins which show that a particular train was scheduled to leave at or about the time of the accident in question.
    5. Trial—when remarlas of judge mil not reverse. Even though remarks of the trial court may have been unwarranted and hasty they will not reverse unless prejudice appears to have resulted.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Cloud & Thompson, for appellant; John G. Drennan, of counsel.
    W. M. Acton and F. M. & H. I. Green, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Fred Collison, as administrator of the estate of Harry Collison, deceased, sued the Illinois Central Bailroad Company in the Circuit Court of Champaign county for the alleged negligent killing of said Harry Collison upon the right of way of said railroad company at Thomasboro, Illinois. A trial was had in April, 1906, and a verdict returned in favor uf Collison, administrator, in the sum of $8,000 upon which judgment was rendered, from which an appeal,was prayed .to this court, which said judgment was reversed in an opinion by this court reported in the 134 Ill. App. 443, and the cause remanded.

At the September term, 1907, of said circuit court said cause was again tried and a verdict returned in favor of said administrator in the sum of $10,000 and judgment entered thereon. From that judgment an appeal has been taken by said railroad company.

We do not deem it essential to make a statement in detail of the case, as the same is set out in full in our former opinion, and it is unnecessary to discuss all assignments of error made by appellant, as many of them relate to matters involved on the former appeal when the case was reversed upon the ground of error in the giving of two instructions for appellee.

Appellant contends that it was error upon the part of the trial court to require the appellant, defendant in court below, to examine and pass upon the second panel of four jurors before the same was examined and accepted by plaintiff, and that section 21 of chapter 78 of the Revised Statutes required the plaintiff to pass upon and accept each panel of four jurors before the defendant could be called upon to do so.

Appellee contends that the practice of the trial court was followed in the selection and impaneling of the jury, and that no harm resulted to appellant from following such practice. Appellant makes no claim that the matter of selecting the jury in any way imperilled or prejudiced appellant’s rights in the selection of the jurors, or that by such practice it was forced to accept an unworthy or objectionable juror, or that by reason of such practice it became necessary to use or employ a peremptory challenge that it would not otherwise have used. In the absence of any claim of prejudice to appellant by reason of such action of the court, we are disposed to hold that there was no reversible error in the ruling of the court upon this feature of the case.

It is next contended that there was error on the part of the trial court in the admission of evidence to the effect that the family of deceased was at his home in Rantoul, Illinois, on the evening that Collison was killed and in the admission in evidence of some railroad bulletins of appellant.

In view of the fact that the deceased was on the way to take a train at Thomasboro at the time of his death, we think it was competent to show that his family, at that time, was at his home in Rantoul, as tending to show what train it was likely deceased intended to take. It is true that deceased had said to others just before his death that he intended to take the train going to Rantoul, but it was still competent for appellee to give additional evidence, which properly tended to show the intention of deceased to return to his home, and appellee was in no way prejudiced by the admission of such evidence.

The bulletins objected to were competent to show that a train scheduled to go toward the home of deceased at about the time he was killed carried passengers who held mileage tickets, in connection with the other evidence that deceased held or had upon his person such mileage.

Appellant next insists that there was error in the action of the court in modifying a special interrogatory proposed by appellant to be submitted to the jury and in stating, while passing upon an objection made by appellee, that he would have sustained the objection earlier if it had been made earlier. The special interrogatory as tendered by appellant, read as follows:

“Could the deceased, Harry Collison, while upon the defendant’s right of way, have, by the exercise of due diligence for his own safety, discovered the approach of the train which struck him, in time to have avoided the injury which caused his death?”

This interrogatory the court modified so that it read as follows:

“Could the deceased, Harry Collison, under the conditions shown by the evidence to have existed and which surrounded him, just before and at the time of the injury, by the exercise of due diligence for his own safety, have avoided the injury which caused his death?”

The interrogatory as first presented, omitted to have the jury take into account the surrounding conditions in determining whether by the exercise of due care Collison could have discovered the approach of the train which struck him, and it was to cure that defect, evidently, that the court prepared the modified form. The modification of the interrogatory seems to us to have been only fair under the circumstances, as the jury may have said that deceased could have seen the train if he took no account of the surroundings, when they could have said (as they did) that deceased could not have avoided the injury which caused his death, under the conditions shown by the evidence to exist and to surround him at the time of his death.

The court’s remark above quoted in passing upon the objection would seem to have been unwarranted and somewhat hasty, but was not of so prejudicial a character as to require extended comment, and certainly not of sufficient moment to warrant a reversal.

This cause was reversed upon the former appeal. because the trial court gave, for appellee, two instructions which this court determined upon that appeal, to have been error. Upon the trial now appealed from neither of the objectionable instructions was offered or given, while the instructions that were given seem to have been fair toward appellant and to have covered every phase of the case necessary to be covered, and as a series to have stated the law applicable to the case with substantial accuracy.

There is no prejudicial error in the record and the judgment is affirmed.

Affirmed.


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    George Zwicky, Appellee, v. Harry P. Morris, Appellant.
    1. Landlord and tenant—what does not release from, obligar tions of lease. Held, that the arrangement in evidence in this case did not operate to release one of the lessees of the obligation of payment provided by the lease.
    2. Landlord and tenant—what does not release from obligar tions of lease. Held, that the evidence in this case did not show a release of one of the lessees from the obligation to pay rent provided by the lease.
    Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    John G. Friedmeyer, for appellant.
    Edward D. Henry and S. A. Wight, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

George Zwicky brought suit in the Circuit Court of Sangamon county against Harry P. Morris, Richard M. Sullivan and S. R. Frankel to recover from them an amount alleged to be due to him (Zwicky) by the terms of a lease. Upon an issue joined as to whether Morris was liable upon the lease the court peremptorily directed a verdict in Zwieky’s favor in the sum of $300.31 upon which judgment was thereafter rendered and this appeal followed.

The evidence adduced upon the trial showed that appellee on May 1, 1905, executed a lease under seal to appellant, Richard M. Sullivan and S. R. Frankel for certain property in Springfield, togethe'r with machinery and fixtures thereon from that date to May 1,1915, at a yearly rental of $1,200, payable six months in advance, $600 May 1 and $600 on November 1, of each year and as an additional rent the lessees were to pay all taxes and special assessments levied or assessed against said property during the term of the lease, and were to keep the property leased, insured in the sum of $4,000 and were to pay water rents and maintain ordinary repairs on the buildings.

Zwicky, in the lease, gave to the lessees the option to buy said premises at any time within ten years from May 1, 1905; the terms of which option need not be stated in this opinion.

Under said lease, the lessees went into possession of the premises on May 1, 1905, and paid $600 rent then due by the terms of the lease. Default was afterward made in the payments provided for in the lease and appellee brought this suit, claiming the balance, to-wit: $300.31, to be due under the lease for rent, taxes, etc., and unpaid.

Appellant makes two contentions, which we deem it important to notice: first, that appellee, after the making of the lease involved, entered into an independent contract with Sullivan for a different rental of said premises and thereby released Morris from all liability under the lease; second, that appellee executed a written release on January 9, 1907, by force of which Morris was released from all obligations under said lease.

It seems from the evidence that about November 1,1905, Sullivan said to appellee that he could only pay rent monthly, i. e., $100 per month, to which appellee consented, after which time Sullivan paid the rent to appellee monthly up to January 2, 1907. This payment of rent after November 1, 1905, was made by Sullivan for all three lessees' and was the act, not of Sullivan alone, but of all the lessees. Morris, in his testimony, says: “Sullivan paid the rent for the three of us, as Frankel was in Chicago.” This arrangement did not constitute an independent contract with Sullivan so as to release Morris from his written lease as claimed by appellant. At most it amounted to a mere assent upon the part of appellee to accept his rent from lessees monthly instead of in advance, as provided for by the terms of the lease. Nor would the fact that Morris had dropped out of the business prior to November 1, 1905, in any way tend to release him from Ms obligation or establish a new and independent relation between appellee and Sullivan, as the lease involved was under seal and was in no legal manner annulled or abrogated.

The contention that Morris was discharged from liability by force of the release dated January 9, 1907, is also without merit. The release upon its face provides that “it shall not take effect until signed by George Zwicky, Bichard M. Sullivan, H. P. Morris and S. B. Frankel.” This release H. P. Morris not only did not sign but he refused to sign it.

There was a clear legal liability resting upon Morris to pay the amount claimed by appellee and the trial court rightfully directed a verdict.

The judgment is affirmed.

Affirmed.


text:
    Eugene Wahl, Administrator, Appellee, v. Eliza J. Jacobs et al., Appellants.
    1. Appeals and errors—of what complaint cannot "be made. A party cannot upon appeal complain of the action of the court taken at his own instance and request.
    2. Administration of estates—section 81 of act construed. Section 81 of the Administration Act was designed by the legislature to give to the administrator a more speedy and less expensive mode for the recovery of assets belonging to the estate which he represents, and is cumulative to the ordinary remedies of detinue, trover and replevin.
    Petition for citation. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    S. H. Cummins, for appellant.

      D. H. Mudge and Barber & Barber, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Eliza J. Jacobs and Andrew J. Jacobs have prosecuted an appeal from an order of the circuit court of Sangamon county affirming an order of the probate court of said county which directed said appellants to deliver to appellee as administrator of the estate of Edward C. Eberle, deceased, property belonging to said estate, which the appellants had refused to deliver to appellee as such administrator, and further ordering said appellants to pay to such administrator all damages he may have sustained as such administrator by reason of the wrongful detention of. said property by appellants.

Appellee, as administrator, filed an affidavit in the probate court of Sangamon county under section 81 of chapter 3 of the Bevised Statutes, in which he set up that appellants had in their possession the property herein involved, which, constituted the entire personal estate of Edward C. Eberle, deceased, and in an amendment thereto stated that such property had never come into his hands as such administrator. In such petition he prayed for citation and for an order directing appellants to surrender and deliver up said property to such administrator. Appellants appeared in such probate court and without objection submitted to a hearing on such petition, claiming, however, that all the property involved in the controversy was their absolute property by force of a gift which they claimed deceased made to them of the property. The probate court found adversely to the contention of appellants and they prosecuted an appeal to the circuit court of said county with the result already stated.

Appellants contend that the circuit court was in error when it submitted the controversy to a jury and when it assumed authority under section 81, and proceeded to try and determine the right of property. Upon the first feature of this contention it is enough to say that the record discloses the fact that it was upon a motion of appellant that the circuit court directed an issue of fact upon the claim of appellants, then made in writing, that the property involved was given to appellants by deceased, in his lifetime, and they are now estopped by their own conduct from challenging the act of the court in so submitting the case.

Upon the second feature of the contention appellants claim that said section 81 of chapter 3 was not designed or intended to give the court any power to hear and determine the question involved, but that such right could only be determined by an action of replevin or other appropriate remedy at law.

Said section 81 provides, in substance, that if any " ° ° administrator shall state on oath to the county court that he believes that any person had in his possession * s ® any goods, chattels, monies or effects belonging to any deceased person, the court shall require such person to appear before it by citation and may hear him on oath, and hear the testimony of such * * * administrator and other evidence offered by either party and make such order in the premises as the case may require.

This section has been held by our courts to give to an administrator a more speedy and less expensive mode for the recovery of the assets belonging to an estate, which he represents, than by detinue, trover, or replevin, and to be a cumulative remedy, in those cases where the administrator seeks to possess himself of estate assets which up to the time of commencing of such proceeding he has never reduced to his possession. Wade v. Pritchard, 69 Ill. 279-281; Mohlke v. People, 117 Ill. App. 595.

The testimony, as to the alleged gift by deceased to appellants, was of so. unsatisfactory a nature that, in our judgment, no verdict could have been sustained other than the one returned.

The judgment is right under the evidence and the record is free from prejudicial error.

The judgment is affirmed.

Affirmed.

The motion to tax the cost of the additional abstract to appellant is allowed.


text:
    Edward D. Keys et al., Executors, Appellees, v. Addie B. Wohlgemuth, Executrix, Appellant.
    1. Wills—what not absolute gift. Held, that under the particular will in question in this case, a particular legatee received not an absolute gift of a specified sum of money but a life interest therein, except to the extent of such portion of such sum as might be delivered to such legatee, under the conditions named in the will, by the trustees appointed to hold the same.
    2. Wills—rights of contingent beneficiary determined. Held, under the provisions of the particular will in question in this case, that the beneficiary designated to receive a portion of a fund left in trust for another in the event of the death of that other, applied only to the particular fund mentioned in the clause by which such contingent interest is given.
    3. Costs—when apportionment of, not disturbed. In proceedings in equity the apportionment of costs is left largely to the discretion of the chancellor and such apportionment will not be disturbed in the absence of an abuse of discretion.
    Bill to construe will. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Alonzo Hoff, for appellant.
    Albert Salzenstein and James H. Matheny, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

The controversy in this case relates to the construetion of the will of Henry Wohlgemuth, deceased, late of Springfield, Illinois, who died on November 11,1905. Said Henry Wohlgemuth, having no wife living, but having three children only, named respectively Henry J., William C,, and Mabel, made his last will and testament in due form in which he made the following provisions: He gave to Mabel, in fee simple, a lot in the city of Springfield, five thousand dollars out of his personal estate, some household goods and a horse, carriage and harness; to William C. he gave in fee simple a lot in the city of Springfield and five thousand dollars to be paid out of his personal estate; and to Henry J. he gave and devised property in the following language:

“Item Seventh: I give and devise to my son, Henry J. Wohlgemuth, lot thirteen (13) in block fourteen (14) in E. lies’ Second Addition to the City of Springfield, Sangamon county, Illinois.

I also give and bequeath to my son Henry J. Wohlgemuth, two thousand dollars ($2,000) to be paid to him out of my personal estate not otherwise specifically bequeathed in this will. I direct that it be held, in trust by my executors, whom I hereby appoint also as trustees for the purposes named in this will, for two years, that it be invested in interest-bearing security and he have the benefit thereof. If the interest and rent he receives be not sufficient for his reasonable fair maintenance, my executors, as such trustees, may, in their judgment, give him part of the principal, should it be necessary so to do, or should he be able to better his condition by paying it all, they will, in their discretion, have power to pay it over to him. In the event of his death if any money or real estate property be left given to him by me, it shall be equally divided between my two children above named and to their heirs. ’ ’

By Item Eighth of said will said testator gave to the trustees named in the will fifty shares of the capital stock of the Farmer’s National Bank of Springfield, together with what other monies, effects, personal property or real estate be held, with power to such trustees to rent the real estate, to make repairs, pay taxes, etc., collect dividends on the bank stock and to sell and assign the bank stock and receive the proceeds thereof, and, if in their judgment it was deemed best, divide the bank stock into fifty parts, giving Mabel twenty shares, William twenty shares and Henry J. ten shares.

By Item Ninth of this will the testator gave power to the trustees to sell or dispose of his homestead, also all other real estate on such terms as they might think for the best interest of his heirs, and divide the proceeds upon the same basis as that given in Item 8 and in Item 9. The testator further directed that all other money or effects or proceeds of his estate from sale of property or otherwise, not specifically set apart in his will, should be divided in like manner, i. e., Mabel two-fifths,- William two-fifths and Henry J. one-fifth.

By Item Tenth and a codicil thereto the testator provided that the sum' of $3,000 be set apart and safely invested in interest-bearing security and the proceeds thereof paid to his sister, Johanna Frauman, so long as she should live, and if necessary for her maintenance an amount out of the principal, not exceeding $100 per annum, be paid, and that the remainder of such $3,000 should be divided between said three children as provided in Item-Ninth.

William C. Wohlgemuth died testate on December 4, 1905, leaving no child or descendants, but leaving Addie B. Wohlgemuth, his widow, to whom he gave and devised all his property, both real and personal, and whom he also named as sole executrix of his will.

Henry J. Wohlgemuth, the other son, died intestate, on December 20, 1905, leaving no widow, but leaving Mabel, his sister (wife of Henry B. Lubbe), as his sote and only heir at law.

Henry B. Lubbe was duly appointed administrator of the estate of Henry J. Wohlgemuth, deceased.

The question to be determined is, what share or part of the estate of Henry Wohlgemuth, deceased, does Addie Wohlgemuth, the widow of William 0. and devisee under his will, take.

Said Addie Wohlgemuth claims that the language in the seventh item of the will, namely, “In the event of his (Henry J.’s) death, if any money or real estate property he left given to him by me, it shall be equally divided between my two children above named and to their heirs,” has relation, not alone to the property bestowed upon Henry J. by such Item Seventh, but applies with equal force to all the other property which Henry J. took under his father’s will, and therefore said Addie would take one-half of such other property as sole legatee of William C.; while Lubbe, as administrator of the estate of Henry J. Wohlgemuth, claims the whole, or the unexpended part of the $2,000 devised to Henry J. by force of the first clause of Item Seven.

The contention of Lubbe that the gift of $2,000 to Henry J. was absolute and not for life, and that the last clause of such Item Seventh was repugnant to the first clause thereof seems to us to be wholly without merit. The gift to Henry J. of the $2,000 is not absolute but qualified. The testator directs that such sum be held in trust by the trustees and invested in interest-bearing securities that said Henry J. may have the benefit thereof; such trustees to give him a part of the principal only in case it should be necessary so to do to provide for his reasonable maintenance; with power upon the part of the trustees to pay all of such sum to him in the event that “he shall be able to better his condition.” This language is too plain to admit of doubt. Until such time came that the executors or trustees did, in fact, deliver to Henry J. such fund, upon the conditions named in said Item Seventh, he was not the absolute owner thereof, and whatever of such sum remained in the hands of the executors or trustees undisposed of and not delivered to Henry J. would Tbe subject to the directions of the testator as expressed in This will.

We hold that under the last clause of such Item Seventh, viz., “In the event of his death, if any money or real estate property be left given to him by me, it shall be equally divided between my two children or to their heirs”, Addie B. Wohlgemuth, as the sole heir to William C. Wohlgemuth, is entitled to one-half of said lot 13 devised to Henry J. and to one-half of what remained of the $2,000 undisposed of at the time of his death.

Addie B. Wohlgemuth contends that she is not only entitled to one-half of the $2,000 undisposed of, mentioned in Item Seventh, but also that she should have one-half of all the property which under the will would have gone to Henry J.; that the last clause of such Item 7, just above quoted, applied to all provisions of the will giving Henry J. any interest in his father’s estate.

We are disposed to think that such words quoted have no reference to any property given to Henry J. other than that mentioned in said Clause 7. The expression of the testator relates solely “to money and real estate.” Under that clause the testator was speaking of or dealing with Lot 13 and $2,000 the interest only of which was to be paid to Henry J. (except upon the happening of a contingency), the seeming expectation of the testator being, as gathered from such Item Seventh, that of such devise and bequest there would be a remainder, and this remainder only was what the testator meant to dispose of by the language quoted. If tbe testator meant more than that why did he employ the words “money and real estate?” In other items of his will he gave absolutely to Henry J. property which was neither money nor real estate and since it must be understood that the testator in the employment of the words “money and real estate” used them in their ordinary sense, no reason occurs to us why the testator would not have used other or different words, as he did in other items of his will, if he meant to devise or bequeath other and different property.

We therefore hold that the sister, Mabel Lubbe, and Henry B. Lubbe, as administrator, should receive all that part of the property and estate of Henry Wohlgemuth devised and bequeathed by him to Henry J. except that named in Item Seventh, viz., one-holf of lot 13 and one-half of that much of the $2,000 as remains undisposed of. We further hold that said Addie B. Wohlgemuth takes nothing in the amount bequeathed to Johanna Frauman, sister of the testator.

Complaint is made by Addie B. Wohlgemuth as to the manner in which the costs of the trial, in the circuit court were apportioned between the parties. Such apportionments in proceedings in equity are left largely to the discretion of the chancellor hearing the cause, and we do not feel that the discretion employed was improperly exercised.

The holdings of the trial court were in substantial accord with the views herein expressed and as the decree was right it will be affirmed.

'Affirmed.


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    Bessie Tiffin, Appellee, v. Hillsboro Coal Company, Appellant.

      Instruction—when peremptory, should he given. A peremptory instruction for the defendant should be given in an action on the case brought to recover for death caused by alleged wrongful act where upon an examination of the whole evidence the Appellate Court is satisfied that there was no evidence in the case upon which a recovery could be based and that the negligence charged in no count of the declaration had been sustained by such evidence.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Montgomery county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed.
    Opinion filed November 17, 1908.

      Amos Miller and Lane & Cooper, for appellant.
    L. V. Hill and Thomas M. Jett, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Bessie Tiffin, as widow of Charles Tiffin, deceased, brought suit in the Circuit Court of Montgomery county against the Hillsboro Coal Company to recover damages resulting to her from the death of her husband, alleged to have been caused by the wilful negligence of the coal company. There was a verdict and judgment in favor of appellee in the sum of $2,500 and the coal company appealed.

The case was tried upon a declaration in which there were five counts: The first count alleged that deceased was in the employ of the coal company doing general work around the top of the coal shaft; that under the law governing mines and miners it was the duty of appellant to keep stationed at the top and also at the bottom of the shaft a competent man to attend to signals for at least one-half hour before hoisting began in the morning and for one-half hour after hoisting coal for the day had ceased; that the deceased was engaged in removing a defective car off the cage at the surface landing at the top of the shaft and while he was so engaged appellant caused the cage on which Tiffin had just been standing to be hoisted and he was caught between the cage and some timbers at the side of the ascending cage and immediately thereafter fell to the bottom of the shaft and was killed; that appellant wilfully failed to so keep competent men to attend to signals and by reason thereof deceased was killed and appellee injured, etc.

The second count is quite similar to the first with the added averments that deceased assisted in removing the defective car from the cage at the request of one Charles McHenry, a vice principal of appellant, and that while deceased was recrossing the cage, assisting in removing the defective car, appellant wilfully and instantly caused the cage to he hoisted at the speed of 1,000 feet per minute, and that by reason of the wilful failure to keep a competent man at the top of the shaft to give signals, deceased was caught,, etc.

The third count sets out that part of the act governing mines and miners that prohibits the lifting or lowering of cages on which men are riding at a rate of speed in excess of 600 feet per minute, except with the written consent of the mine inspector and that while deceased, by the order of a vice principal of appellant was assisting in the removal of the defective car from the cage, and while he was crossing the cage, appellant’s servants caused the cage to be hoisted at the speed of 1,000 feet per minute without the consent of the inspector and wilfully failed to indicate to the engineer that men were riding on the cage and by reason thereof deceased was caught, etc.

In the fourth count that part of the said act is set out which provides that the mine manager shall know that the “top” man and “bottom” man are on duty when men are being hoisted or lowered; that appellant wilfully failed to have a top man on duty at the time of the accident, etc.,, and that appellant caused the cage to be rapidly hoisted, whereby deceased was caught and killed, etc.

The fifth count sets out that part of said act which provides that signals shall be given to the engineer when cages are to be hoisted or lowered, and avers that while deceased was passing over said cage, appellant wilfully failed to observe the statute in regard to signals, and wilfully caused one ring to be given to the engineer, which indicated an empty cage to be hoisted, instead of three rings, which would indicate that a man or men were on the cage; that appellant wilfully failed to give proper signals while deceased was on the cage and so caused the cage to be hoisted at the speed of 1,000 feet per minute and by reason thereof deceased was caught, etc.

Appellant made a motion to take the case from the jury at the conclusion of plaintiff’s evidence, which motion was overruled and exception saved; such motion was renewed at the conclusion of all the evidence which was also overruled and exception taken. In the view we take of the case it is only necessary to discuss this single exception, as an examination of the whole evidence satisfies us that there was no evidence in the case upon which a recovery could be based, and that the negligence charged in no count of the declaration was sustained.

The evidence shows that there were two cages in use in the shaft. Each cage was six or seven feet long and nearly that wide, and ran in separate chambers, which chambers were side by side; that each chamber had a plank wall at each of its sides while at each end, i. e., the part thereof that corresponded with the ends of the cage, there were gates about six feet long and four feet high, made of boards or slats, which gates opened, one to the north and one to the south, and were hung on hinges and were hooked when closed.

Upon the subject-matter of the injury the evidence in substance was as follows: Joseph Clotfelter testified that Tiffin, who was engaged in doing common labor in appellant’s service, was on a cage and on the south side of an empty and defective car, which had been brought up to the surface from below, engaged in moving the car off the cage; that he, the witness, pulled the car to get it off the cage while Tiffin pushed, and by use of a trip kept the car under control; that he saw Tiffin on the north side of the shaft; that he, the witness, after the car was off the cage, gave his attention to the moving of the.car and did not notice Tiffin until he saw him caught between the south end of the cage and some platform timbers about ten or twelve feet above the surface; that during the time he heard McHenry, the top boss, first say to Tiffin ‘1 Stay off the cage,” and then soon after say “Stay on the cage.”

Clotfelter further testified that Tiffin opened the south gate but he did not know who closed either of the gates.

Harrison Easley, the engineer of appellant, testified that when he stopped the cage at the surface, or what is called the lower landing, to distinguish it from another landing about thirty-five feet above the surface called the top landing, he saw Tiffin open the gate, preparatory to taking the car off. That Tiffin and Clotfelter took the car off the north side of the shaft and were going north when he last saw them; that soon thereafter he got a signal to hoist the cage to the top landing and a few seconds later received a signal to stop the cage; that when he started to hoist the cage he started slowly.

Charles McHenry, who had charge of the top works, testified that he saw Tiffin and Clotfelter at the shaft; that they had the gate open; that he, the witness, helped to take the car off the cage; that after that he went to the south side of the shaft and closed the gate; that Tiffin came back from the car, after it had been removed from the cage, to the north side of the shaft and closed the north gate; that he, McHenry, then rang the bell to hoist the cage, and that at the time he gave the signal there was no one on the cage and Tiffin was one foot from the cage outside the gate. McHenry further testified that as he rang the bell Tiffin opened the gate and started across the cage to the south side, just as the cage started to rise; that he then called to Tiffin 6‘Stay off the cage,” but that as soon as he saw Tiffin step on the ascending cage he called to him to ‘1 Stay on the cage;” that Tiffin, in place of staying on the cage, attempted to jump off and was caught between the timber and cage and then fell to the bottom of the shaft. This in substance is the entire evidence as to the manner in which deceased was injured.

The proof is conclusive that Tiffin was not on the cage when the signal to hoist was given. It can serve no good purpose to review the testimony in detail further. The evidence failed to support the charge of negligence alleged in any count of the declaration, and appellant’s motion to take the case from the jury should have been sustained.

The judgment will be reversed with a finding of fact, but the cause will not be remanded.

Reversed.

Finding of facts to be incorporated in the judgment:

We find that appellant was not guilty of any negligence in connection with the death of Charles Tiffin, deceased.


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    F. C. Hamilton et al., Appellants, v. The Vermilion Special Drainage District et al., Appellees.
    1. Drainage—when classification of lands cannot he complained of. A landowner who has been before the court at the time when the lands within the drainage district had been classified and who has acquiesced in the classification so made for a number of years, is not thereafter entitled to object.
    2. Drainage—when use of particular fund illegal. Where drainage commissioners have levied a tax and collected the same in order to create a fund to be used for a particular purpose, it is unlawful for such commissioners thereafter by resolution to divert such fund and to use the same for another and different purpose.
    3. Pleading—what allegations of fraud not sufficient in equity. General allegations of fraud unaccompanied by a specific showing to support them are insufficient in equity.
    Bill in chancery. Appeal from the Circuit Court of Ford county; the Hon. George W: Patton, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Schneider & Schneider, and Small & Brock, for appellants.

      Cloud & Thompson and J. L. Ray, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

Each of appellants, for himself, filed a bill in the Circuit Court of Ford county, against appellees, to compel the commissioners of the Vermilion Special Drainage District to make a new classification of the lands in such district; also to restrain the commissioners from using money that had been raised by taxation for “repairs and expenses” in the extending of line “E” in said district; also to restrain the commissioners from levying assessments, and the treasurer from collecting the same, and that the commissioners be ordered to spread new assessments upon the lands in said district according to their actual benefits. There was a demurrer filed to each bill, which upon a hearing was sustained and the bills dismissed for want of equity at the costs of complainants. An appeal was prayed by each appellant to this court, but as the bills are identical in form and substance they are treated here and determined as one cause.

In said bills it was averred in substance that said petitioners were landowners and taxpayers in said district and that all lands owned by them had been assessed for the construction, maintenance and repair of the system of drainage in said district for more than twenty years; that their lands had been inequitably assessed and they compelled to pay more than their proportion of the cost of the construction and repair; that the district was organized under the order of the County Court of Ford county in August, 1880; that special assessments were levied on all the lands in said district from 1882 upon the lands as first classified up to December, 1903, when a new classification was made and a new assessment levied for the purpose of extending the outlet of ditches then in use in the district. That on July 9, 1907, the commissioners of said district had adopted a resolution to expend $2,000 then on hand and to levy an additional assessment of $14,000 to further drain and improve the lands of the district; that the clerk of said district had caused such assessments to be made and had extended the tax on the basis of the last preceding assessment roll without any material change; that the said sum of $2,000 was by resolution of October 20, 1906, to be expended in extending line “E” a branch, for about one mile beyond the point to which it had been formerly constructed twenty years previously; that the extension of said line “E” would not be of any benefit to the taxable lands in the district or to the petitioners.

It is further alleged in said bills that -other lands, i. e. lands outside of the district, have made connection with ditches in the district and have been materially improved thereby without paying anything for such connection and that said commissioners of the district, although well knowing that such connection had been made, had refused to compel such connecting landowners to pay for such connections as they are required to do under the statute; that the commissioners, in allowing lands outside of the district to drain into the district, and in refusing to reclassify all the lands of the district on an equitable basis were guilty of a fraud upon the petitioners in making them pay more than their proportionate share of the cost, etc.; that the said commissioners had arbitrarily and wholly disregarded their statutory duty by refusing to reclassify the lands of the district.

It is further averred in said bills that in 1903 at a time when it was found necessary to extend an as-, sessment on the lands in the district, the commissioners agreed to make a new classification of the lands, and had made one, but that in doing so had adopted the old basis of classification which was fraudulent, unfair and inequitable; that on October 31, 1906, a levy had been made for a tax of $2,000 for “repair and expenses” in said district, which money had been collected and paid over to the treasurer of the district, and that on July 9, 1907, the commissioners by resolution declared that it was necessary to expend for proposed work in said district the sum of $16,000; that the $2,000 then on hand realized from the levy of October 31, 1906, made for “repairs and expenses” be expended and paid out to do the work of extending said line “E” and that a special assessment be extended upon the classification of 1903 and approved by the county court, to raise the sum of $14,000.

The contentions made by appellants which we deem it necessary to notice are these: That the classification of the lands in the district was unfair and fraudulent and that a new one should be made; that the commissioners had no power to extend the tax of $14,000 to carry on the work proposed; that the commissioners could not rightfully expend the $2,000 realized from the resolution of October 31, 1906, for “repairs and expenses” in extending said line “E”.

Upon the first and second of these claims we entertain no doubt that the ruling of the trial court was right. The lands in the district were first classified in 1880 under the direction and approval of the County Court of Ford county upon which classification all the assessments for money required to do the work in the district up to the year 1903 were extended. In December, 1903, a new classification was made which was in the main the same as the original or first classification, and during all this time appellants acquiesced in what was being done by the commissioners in the district, and took no appeal from either of said classifications as they had a right to do.

In Barber v. Chapman, 127 Ill. 387, which was a proceeding to restrain the collection of a tax extended by the commissioners of a drainage district like the one at bar, the court held that an objection that related to the classification of lands in the district came too late upon such a hearing. The court there said in substance that the law gave the landowners ample opportunity to "be heard touching the classification of lands before a tribunal with ample power to afford him relief, and also gave him the right to an appeal to correct any error shown to exist in the classification. Thus the rights of the landowner, in respect to the classification of lands within the district, were fully and fairly protected.

In the case before us appellants paid their assessments so far as necessary to do the work in the district for a period of twenty years, upon the basis of the first classification, and it would seem that if their lands were wrongfully classified in such first classification they would reasonably be expected, in the exercise of their legal right, to have been heard upon the second classification, and to have corrected upon such second classification any error that may have existed in the first classification.

Appellants argue at great length and aver many times in their bills that the classification was fraudulently made and the assessments inequitable and void. But no sufficient averment of facts is made to show that any requirement of the statute has not been observed in the extending of the taxes, or that any irregularity is involved in the application of any funds, except as to the $2,000 proposed to be used in the extension of line “E”, or to substantiate the charge of fraud in the petition. Such allegations of fraud are general in their nature, with no specific showing of facts to support them.

That the commissioners had power to make the levy of $14,000 for the purpose of further reclaiming the lands of the district, cleaning out and extending ditches, so that all the lands in the district would receive the benefit and protection contemplated when the district was organized and the lands classified, cannot be seriously questioned. The right of the commissioners to do so is not an open question in our state. Reynolds v. Drainage Commissioners, 134 Ill. 274.

Upon the allegations in the bills to the effect that the use of the $2,000 proposed by the commissioners in their resolution would be a misapplication of such fund, we think the trial court erred in dismissing the petitions.

It appears from the allegations in the bills that on the 31st of October, 1906, the commissioners levied a tax of $2,000 upon the lands in the district for repairs, or general use in the district, which said levy had been extended and the amount collected and received by the treasurer of said district, when on July 9, 1907, the commissioners adopted a resolution fixing the total cost of the work then proposed at $16,000. The cost of extending line “E” was fixed at $2,000 and the money then in the treasury which had been realized by force of the resolution of October 31, 1906, was appropriated to do the work bn said line “E.” The purposes for which the $2,000 should be used were fixed and determined by the resolution of October 31, 1906, and those purposes could not be changed or altered by the resolution of July 9, 1907, and the attempted use of that sum on line “E” alone was unauthorized.

It is too clear to require argument that monies raised for a general use in the district or for the benefit of all the lands in the district cannot be so used that a part only of the lands taxed to raise that sum shall be benefited.

The commissioners had power to fix the total cost of the proposed work or improvement at $16,000 and to direct the levy of a tax of $14,000 only, which with the amount on hand would meet the whole contemplated cost. Tet they had no right to apply funds raised for a general use to the specific use of the line “E” so that such line “E” would receive a special advantage over other lands in the district which could receive a benefit only after the tax proposed by the resolution of July 9, 1907, could be extended and collected.

Other matters have been argued here which were not arg’ued in the court below and were not raised by any of the allegations in the bills, and are not entitled to discussion in this opinion.

The decree of the court below is reversed and the cause remanded with direction to overrule the demurrer as to so much of the bills as relate to the unlawful use of the $2,000 and to sustain the demurrer as to all the rest.

Reversed and remanded with directions.


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    Hunter, Allen & Company, Appellants, v. The Village of Exeter, Appellee.
    Municipal cobpobations—when not liable for merchandise. A village is not liable for merchandise which was never bought for nor used by it and which was not in any way contracted for by it or its purchase authorized. Such village, likewise, is not bound by virtue of the principle of estoppel by a showing that the person who ordered such merchandise had previously ordered like merchandise for such village, the bills for which had been paid by such village, unless such showing is accompanied by evidence tending to establish that the prior purchases were made without express authority.
    Assumpsit. Appeal from the Circuit Court of Scott county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    F. C. Funk and J. A. Warren, for appellants.
    J. M. Riggs, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Hunter, Allen & Company sought to recover from the Village of Exeter for some cement alleged to have been sold by said firm to the Village of Exeter in the year 1906. Upon a trial in the Circuit Court of Scott county the court directed a verdict in favor of the village upon which a judgment was afterward rendered and Hunter, Allen & Company appealed.

A fair review of the evidence which was offered to establish the alleged liability upon the part of the village shows that appellants, a firm dealing in cement at “Bluffs,” Hlinois, sold and delivered the cement sued for to one Ed. Funk who at the time of the sale was president of the village board of the Village of Exeter; that said Funk ordered the cement and at the time he gave the order said to appellants that it was for the Village of Exeter; that the cement was delivered by appellants to one Whitlock who said, when he got the cement, that it was for the village; that the cement was charged to the village upon the books of appellants and that Funk, as president of the village board, had, at different times before the sale in question, ordered cement from appellants, which the village board had paid for upon presentation of bills for the same. It is not necessary to go into a consideration of the evidence offered upon the part of the appellee farther than to state that it shows conclusively that the cement sued for was never bought nor used for the village, nor in any way contracted for, nor its purchase authorized, by the village authorities.

Under the showing made, there was no liability upon the part of the village to pay for the cement.

What the witnesses Funk and Whitlock said to appellants or their agents at the time of the sale of the cement, as to the party for whom the purchase was made, was incompetent and without force, as no attempt was made to show any authority, upon the part of either, to bind the village, nor to show that the village ever afterward ratified the purchase.

The doctrine of estoppel invoked by appellants, based upon the claim that Funk made previous purchases of cement for the village which the village paid for, has no application here as there was no showing made that at the time of such purchase Funk did not have full and express authority to make such purchases. It would be carrying the doctrine of estoppel too far to say that because a village paid bills contracted by its agent at a time when he had authority to bind it, it should pay for purchases contracted by him when he had no such authority.

The judgment was right and is affirmed.

Affirmed.


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    Bert Scott, Appellee, v. Parlin & Orendorff Company, Appellant.
    1. Instructions—when error in refusing, which preclude recovery upon particular counts, waived. Any error committed by the trial court in refusing instructions directing the jury to find against the plaintiff on particular counts is waived by tendering at the same time with such instructions, instructions which present the issues of the cause upon the declaration as filed.
    2. Instructions—length of, criticised. In this case an instruction of three full printed pages is criticised as too long, as tending more to mislead than to instruct.
    3. Variance—how objection for, should be made. If there is a material variance between the averments and proof, the party urging such variance should state the same specifically to the court at the time the objection is made.
    4. Trial—when conduct of counsel will not reverse. Notwithstanding the conduct of counsel may he open to criticism, it will not constitute ground for reversal in the absence of a showing of prejudice.
    5. Verdicts—effect of several concurring. Where three juries have passed upon a cause and each found the same way, the Appellate Court will be slow to disturb the third verdict in the absence of prejudicial error.
    Action in case for personal injuries. Appeal from the City Court of Canton; the Hon. P. W. Gallagher, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Page & Wead and C. E. McNemer, for appellant.

      Chiperfield & Chiperfield, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee brought suit in the City Court of Canton against appellant to recover for damages alleged to have been sustained by him through the negligence of appellant. Three trials of the case have been had, upon the first of which a verdict in favor of appellee in the sum of $1,000 was returned which, on motion for new trial, was set aside; upon the second trial a verdict was returned for $4,000 in appellee’s favor and judgment entered for that sum, which was reversed by this court for the misconduct of appellee’s counsel upon the trial; the third trial resulted in a verdict in favor of appellee in the sum of $3,800, upon which judgment has been rendered, from which this appeal has been prosecuted.

Appellee’s declaration consisted of four counts: The first count set up appellee’s claim substantially as follows: That appellant on December 9, 1905, was the owner and operator of a machine shop and machinery used therein and that appellee was employed as a servant in said shop; that in one of the buildings of appellant there was a passage way, and over it and about sixteen feet from the floor was a line of shafting, upon which there were pulleys fastened, which were used by appellant in conveying power by the use of belts, etc., which shaft revolved, while in use, at a high rate of speed; that in his line of duty appellee was called upon to oil certain boxing on such shaft while the same was in motion; that to enable him to perform such duty appellant had provided for appellee’s nse an ordinary frame ladder which was placed in position by appellant so that the lower end of the same was wholly unsecured upon the steel floor of the passageway, which was extremely slippery, and the upper end thereof also left unsecured; that appellant furnished appellee no means of reaching his position in oiling said boxes other than said ladder; that appellant neglected to provide appellee, in the performance of his duties, a reasonably safe place to work; that the ladder for such use was not reasonably safe; that the appellant knew that such place, ladder and appliance in connection with the slippery condition of the floor, was such as to cause said ladder to fall with appellee and injure him; that appellee was entirely ignorant of the danger to which he was so exposed and that he did not have equal means of knowledge with appellant of such danger; that while appellee was engaged in the discharge of his duties under such conditions, and while he was in the exercise of due care for his own safety, said ladder slipped or was struck by a coupling revolving near by and knocked off or away from its support and appellee was thrown with great violence upon the floor and injured, etc.

The second and third counts do not differ so materially from the first count as to require any detailed statement thereof.

The fourth count differs from the three others, in alleging that both appellee and appellant knew and realized the dangers to which appellee was exposed by reason of the conditions involved; that on December 8, 1905, appellee notified appellant that the place was dangerous and unsafe and that appellant promised appellee that it would be made reasonably safe for appellee’s use and the defect remedied; that appellee, in reliance thereon, was induced to remain in such employment; that while so relying upon appellant’s promise and while afterwards acting in the performance of his duties in oiling such boxing, he was injured, etc.

Appellants filed a plea of general issue to all four counts and the three trials hereinbefore mentioned were had.

We do not deem it necessary to discuss at length the issues as presented by either the first, second or third counts, as the case seems to have been tried- upon the theory set up in the fourth count, which presented a claim based upon appellee’s knowledge of the dangerous condition of the place and appliances used, prior to the injury, and his remaining in appellant’s service upon a promise to remedy the defect, which theory was inconsistent with that presented by said first, second and third counts. Appellant, however, made no motion at the conclusion of appellee’s case, or at the close of all the evidence to withdraw said first, second and third counts from the consideration of the jury, but submitted the case to the jury upon the whole declaration, contenting itself by offering instructions to the effect that under the evidence appellee could not recover under the said first, second and third counts of the declaration. These instructions were properly refused for the reason that appellant at the same time also tendered an instruction which the court gave relating, to and covering appellee’s case as “charged in each count of his declaration,” so that even if the said first, second and third counts should have been withdrawn from the consideration of the jury, either upon motion or by instruction, any error in that respect would be deemed as waived by appellant. Kirk & Co. v. Jajko, 224 Ill. 338-343.

Appellant contends that under the fourth count there was such a variance between the proof and allegations concerning Scott’s complaint to appellant as to the alleged unsafe condition of the place no recovery can be sustained. Even if such a variance should be conceded, we do not think that appellant has put itself in such condition that it can successfully urge the objection made. If there was a material variance between the averments and the proof and appellant sought to avail itself of such variance, counsel should have stated to the court at the time the objection was made, in what the variance consisted. This rule is a just one, as it enables the court to pass upon the question intelligently and also enables the plaintiff to so amend his declaration that the objection may be, if proper, overcome or removed. L. S. & M. S. Ry. Co. v. Ward, 135 Ill. 511-516.

This doctrine is not overruled or modified in Republic Iron Co. v. Lee, 227 Ill. 246, cited by appellant. In the latter case in passing upon this question the court held, in effect, that upon such objection being made, the trial court should be made to clearly understand the ground of the same so that it may pass thereon intelligently.

In the case at bar appellant, without intimating in what the variance consisted, made objection or motions to strike testimony “on the ground of a variance between the testimony and the allegations in the declaration.” This was almost the exact language passed upon by the Supreme Court in the Ward case, supra, where Justice Bailey said such an attempt to point out a variance was clearly insufficient.

Appellant next insists that the conduct of counsel for appellee upon the trial was such that a reversal of the judgment should be had. While there is ground for criticism along the line suggested, we do not think that such conduct upon the last trial was of a character so prejudicial as to warrant ns in disturbing the verdict upon that ground alone.

Upon a review of the evidence we think it fairly tended to support the averments of the fourth count of the declaration. Furthermore, the case has been three times tried, and three juries have found the issues in favor of appellee upon the same facts. Under such circumstances and in the absence of prejudicial error, a court of review will be slow to disturb the verdict. Mills v. Larrance, 120 Ill. App. 83.

Complaint is made by counsel for appellant as to the rulings of the court upon the admission and rejection of evidence, the refusal of the court to submit special interrogatories to the jury and the action of the court in the giving and refusing of instructions, hut we find no prejudicial error in any of these respects.

The court gave for appellant nineteen instructions, covering every material feature of its case, and refused twelve others, many of which covered the same ground in substance as that embraced in the instructions given. One of said refused instructions covered nearly three full printed pages, while others so refused covered each two full printed pages. Instructions of such extreme length, in a case like that before us, are more likely to mislead and confuse a jury than to aid them in understanding the law governing the case.

There is no prejudicial error in this record and the judgment is affirmed.

Affirmed.


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    John G. Slater et al., Appellees, v. John A. Taylor et al., Appellants.
    1. Corporations—section 16 of act construed. While this section imposes personal liability upon a director who assents. to the creation of a corporate debt in excess of the amount of the capital stock of the corporation in question, yet imposition of the personal liability thereby provided for is not dependent upon the solvency or insolvency of the corporation at the time the director assents to allowing its indebtedness to exceed its capital stock.
    2. Corporations—extent of liability of director under section 16 of act. When once the suretyship provided for by section 16 of the Corporation Act has been established or created, a liability is established continuing until the indebtedness of the corporation shall be reduced to the amount of the capital stock; this liability arises for the benefit of all creditors of the corporation (if it becomes insolvent) although the corporation may have had other assets at the time of the creation of the directors’ liability.
    3. Corporations—what does not preclude creditor from enforcing personal directors’ liability under section 16 of act. The mere fact that the creditor is willing to accept the notes of the corporation without their indorsement by the directors thereof, does not preclude such “creditor from enforcing the distinct and separate personal liability of such directors imposed by section 16 of the Corporation Act.

      4. Corporations—what does not preclude creditor from, enforcing personal directors’ liability imposed by section 16 of act. Held. that the relations of one of the officers of the bank creditor with the corporation in this case were not of such a character as to preclude such creditor from enforcing the personal liability of the directors of the corporation as fixed and provided for by section 16 of the Corporation Act.
    Bill in equity. Appeal from the Circuit Court of Douglas county; the Hon. Solon Philbbick, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed in part and reversed in part and remanded with directions.
    Opinion filed November 17, 1908;
    modified December 10, 1908.
    Le Forges & Vail, for appellants.
    Eckhart & Moore, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

John G. Slater, Claus D. Greve, Thomas D. Slater, Owen M. Slater, Thomas Greve, Sr., and Anna Slater, partners under the firm name of the Citizens Bank of Garrett, Illinois, and Claus D. Greve, filed a bill in equity in the Circuit Court of Douglas county for and on behalf of themselves as partners and said Claus D. Greve as an individual, and all other creditors of the Garrett Grain and Coal Company, who might become complainants in said suit against John A. Taylor and others, appellants, to recover from appellants, as directors of the Garrett Grain and Coal Company, the amount of the indebtedness of such corporation alleged to have been contracted by such corporation with the assent of appellants in excess of the amount of the capital stock of said corporation.

Such claims are based upon Section 16 of Chapter 32 of the Revised Statutes, which provides that “If the indebtedness of any stock corporation shall exceed the amount of its capital stock, the directors and officers of such corporation, assenting thereto, shall be personally and individually liable for such excess to the creditors of such corporation.”

The issues were closed upon said bill and the causé referred to Guy R. Jones, as a master in chancery, who took and reported the evidence and his conclusions. The cause was heard upon exceptions to such master’s report and a decree rendered holding the directors liable for such indebtedness in excess of the capital stock of the corporation from which the directors have appealed.

In 1902 there was organized in the village of Garrett, Illinois, a corporation known as the Garrett Grain and Coal Company, with a capital stock of $5,000 to engage in the buying and • selling of grain, coal and hay. Such corporation bought an elevator property in said village and engaged in its business of buying and selling, but soon became indebted to the First National Bank of that village in various sums aggregating about $20,000 used by it in purchasing property and in handling grain, etc. This indebtedness was transferred by the officers of said Grain and Coal Company from the First National Bank of Garrett to the Citizens Bank of Garrett and notes made by the president and secretary of the Grain and Coal Company to the Citizens Bank for $19,700, the proceeds of which, together with the proceeds of a check for $300, were used in discharge of the debts owing by the Grain and Coal Company to the First National Bank.

The notes given to the Citizens Bank were made by the president and secretary of the Grain and Coal Company under and by virtue of a resolution of the' Board of Directors of said Grain and Coal Company adopted on the seventh day of March, 1903.

The evidence upon the question of assent by the directors, at different times, to the creating of indebtedness by the corporation in excess of its capital stock is very voluminous and quite conflicting. It is enough for the purposes of this opinion to say that the master in chancery, who took and reported the evidence, and the trial court, who heard the cause, both found that at the times of the incurring of the different items of indebtedness, which formed the basis of the decree, the directors held liable for such several items, by the terms of the decree, assented to the incurring of such indebtedness and we are disposed to hold that such findings by the court and master were not unwarranted by the evidence and that we would not be justified in reversing such decree on that account.

Appellants contend that under Section 16, hereinbefore quoted, even if a director assent to the incurring of an indebtedness in excess of the capital stock of the corporation, he does not make himself liable, if such corporation, at the time the debt is contracted, has property or assets, other than its capital stock, which, if added to the capital stock, is sufficient to meet or pay its then outstanding liabilities; that the object of the statute is not penal but its design is to prevent insolvency and that if the corporation pays its debts no one can complain.

„ We agree with appellant that such Section 16 is not penal in its nature, but we do not think the liability there sought to be imposed can reasonably be held to depend, for its creation, upon the solvency or insolvency of the corporation at the time the director assents to allowing its indebtedness to exceed its capital stock.

Such Section 16 has for its object the creating of a fund in the nature of a security distributable in equity for the payment of all the creditors of a corporation, if its directors assent to the creation of debts against the corporation in excess of its capital stock. “The liability is like that of a surety.” Lewis v. Montgomery, 145 Ill. 30. “The assenting directors become obligated to the extent of the excess over the capital stock, in the nature of sureties.” Woolverton v. Taylor, 132 Ill. 197.

When once this suretyship has been established or created, it would seem to be a liability, continuing until the indebtedness shall be reduced to the amount of the capital stock, for the benefit of all the creditors of the corporation, if it become insolvent, although the corporation may have had other assets at the time of the creation of the directors’ liability. The surety-ship is established by the act of the director in giving his assent to the creation of an indebtedness over and above the capital stock and would not be defeated, in its inception, by the fact that the corporation had property ór assets on hand, other than its capital stock, when the assent was given, any more than it would be ended or abridged after it had once become established, by the acquiring of additional assets by the corporation.

Tn the case at bar the court, in a former decree, found that the corporation was wholly insolvent and in the exercise of its equitable powers, upon evidence that would seem to have fully justified it, properly directed the application of the fund due from these sureties to the payment of all the debts of the corporation.

It is next urged by appellants that appellees are not in position to claim the benefits of such Section 16 because, as appellants claim, appellee, Claus D. Greve, was acting as cashier of the Citizens Bank at the time the indebtedness involved was transferred from the First National Bank to such Citizens Bank, and at that time G-reve told the directors that if they would come over to his bank he would not hold them personally liable for the indebtedness, and would not require them to sign the notes of the company; that the bank of which Greve was cashier “would hold the company alone for the indebtedness, not the individual directors.”

The evidence shows that at the time of the transfer of the business of the corporation to the Citizens Bank the account had grown to such proportions that the First National Bank refused longer to carry the account unless the directors, as individuals, would sign notes for the indebtedness. This they did not do, but transferred the account to the Citizens Bank where the notes of the corporation authorized by the directors were accepted for the amount of the indebtedness. There is some conflict in the evidence as to just what was said between Greve and the directors upon this' subject, but there is no claim made by appellants that Greve or any one else on behalf of the Citizens Bank ever released or attempted to release, or promised to release, appellants from their liability imposed by said Section 16. Nothing whatever seems to have been said upon that subject and whether or not either of the parties knew of the liability imposed by Section 16 could not influence or determine their rights or liabilities under such section. The liability was established by force of a statute and not by virtue of any agreement and we hold that the trial court was warranted under the evidence in finding that Greve did not release or attempt to release appellants from their liability imposed by the statute, but at most, merely agreed that he would not require them to sign the notes of the company.

Appellants next argue that it was error upon the part of the court to allow Greve, who had control of the business of the corporation for a considerable time, to participate in the fund established by virtue of said Section 16; that Greve had mismanaged the aflairs of the corporation and that losses resulted to the corporation while under his control. Greve was duly employed with the assent of the directors to have charge of the affairs of the corporation and the evidence seems to fully justify the claim made by him that,- in respect to his employment, the commission he was to receive for his services and the expending of money by him in and about the conducting of the affairs of the corporation, he acted upon the assent of the directors, with full knowledge upon their parts that the corporation was indebted beyond the amount of its capital stock, and that in so conducting the affairs of the corporation his earnings and expenditures should be chargeable to the corporation.

In respect to such amounts he became a creditor of the corporation and is entitled to the benefits of Section 16 the same as any other creditor. The fact that Greve failed to make the corporation a moneymaking one would not, of itself, deprive him of the right which Section 16 gave him to participate in the fund with all the other creditors of the corporation. Nor would the fact that Greve was acting as cashier of the Citizens Bank at the same time he had control of the affairs of the Grain and Coal Company affect his status as a creditor. The directors employed Greve to take charge of the affairs of the corporation and agreed to the basis of his compensation, etc., with full knowledge upon their part, at the time of the employment, that he was acting as cashier of the Citizens Bank and they are now in no position to claim any advantage upon that account.

We are of opinion that the cross errors are well assigned; that there were mistakes made in computations and that corrections should be made in the decree rendered by the trial court in the following particulars; that the amount found due upon exhibit “23” should have been $2646.77 instead of $486.04 as determined by the chancellor at the time the decree was rendered; that the amount found due upon exhibit “22” should have been $4466.96 instead of $4094.39 as in said decree found; that the amount found due upon account of overdraft should have been $4419.24 -instead of $4050.80 as fixed in said decree; that the amount due on commission account as in said decree stated should have been $573 instead of $525.28 as therein determined, and that the amount due for money advanced as in said decree fixed should have been $912.60 instead of $832.46.

The decree is affirmed in all respects except as to the cross errors. Upon the cross errors the decree is reversed and the cause remanded with directions to the court below to amend and correct the decree to conform to the holdings hereinbefore announced.

Affirmed in part and reversed in part and remanded with directions.


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    A. P. Nave, Appellee, v. Henry Gross, Appellant.
    1. Sales—what essential to recover upon warranty. In order to recover upon an express warranty, it is essential that the vendee show that the merchandise sold and delivered was not at the time of such sale and delivery in conformity with the warranty.
    2. Sales—when recovery cannot he predicated upon implied warranty. The acceptance hy the vendee of an express and written warranty is a waiver of any right to rely or recover upon an implied warranty.
    3. Measube of damages—in action for breach of warranty. In an action for the breach of an express warranty of merchandise, the true measure of damages is the difference between the actual cash value of such merchandise on the day of sale and the cash market value thereof on that date if such merchandise had fulfilled the terms of the warranty.
    Assumpsit. Appeal from the County Court of Piatt county; the Hon. Elim J. Hawbakeb, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.

      W. G. Cloyd and A. T. Pipher, for appellant.
    M. R. Davidson and James L. Hicks, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

A. P. Have sued Henry Gross in the County Court of Piatt county and upon a trial had before a jury Have secured a verdict in his favor in the sum of $600. Judgment was entered thereon and from it Gross appealed.

The suit was based upon the alleged breach of a written warranty made upon the sale of a stallion by Gross to Have at the price of $800. The warranty was in the words and figures, to-wit:

“Atwood, III. March 26th, 1906.

“Having sold my horse Brilliant to A. P. Have, I hereby warrant the horse an average foal getter under ordinary good treatment.

Henry Gross.”

Nave in his declaration as amended, after setting out the warranty in its exact words, averred in sub7 stance that the stallion had, ever since its purchase had “ordinary good treatment” by him and that said stallion was not an average foal getter under ordinary good treatment at the time of delivery, March 26, 1906.

Under the pleadings, as well as under the law, it was incumbent upon Nave to show that at the time of the purchase and the making of the warranty, the stallion was not what he was represented to be by the terms of the written warranty. Furthermore the acceptance by Nave of an express and written warranty was a waiver by him of any right to rely upon or recover upon an implied warranty and it therefore was of the utmost importance to a fair trial of the cause that the jury be accurately instructed as to the meaning and interpretation of such written warranty.

Gross tendered the court several instruction in which he asked the court to tell the jury that under the terms of the warranty it was incumbent upon Nave to prove that the stallion was not a reasonably sure foal getter at the time of the sale to plaintiff, or at the time of the making of the warranty, each of which the court refused to give, but gave instead instructions which omitted altogether any reference to the time when the infirmity, if any, must have existed.

This action of the court could not have failed to prejudice appellant’s cause. Furthermore the first instruction given for appellee was prejudicial to the cause of appellant in omitting all reference to the breach of warranty as alleged in the declaration, and claimed by appellee upon the trial.

For the foregoing reason it is necessary to reverse the judgment and remand the cause for another trial, but as the ease may be tried again, it is right to express our views upon some of the other objections argued by appellant.

Whether or not the stallion had received ordinarily good treatment after the date of the warranty was a question of fact, and if there was that character of treatment given him, which the contract of warranty contemplated, it was then right to permit Nave to prove that during the season of 1906 the stallion was not an average foal getter, as tending to establish that he was not such a foal getter on March 26, 1906. It was competent for either party to give evidence of the stallion’s condition, etc., within a reasonable time both before and after March 1, 1906, which would tend to show that at the time of the sale and warranty he was or was not an average foal getter. The evidence tendered by appellant as to the stallion’s foal getting powers in 1903 was, in our judgment, too remote and was properly excluded.

As to the measure of damages which should be followed in case of recovery, we think the true measure in such a case to be the difference between the actual cash market value of the horse on the date of the sale and his cash market value on that date if he had filled or met the terms of the written warranty.

Other objections have been argued, but we do not Phinb them of sufficient merit to warrant us in extending this opinion.

For the errors hereinbefore stated the judgment is reversed and the cause remanded.

Reversed and remanded.