text:
    Charles F. Johnson, Appellee, v. Royal Neighbors of America, Appellant.
    1. Fraternal benefit societies—when false answers in appliear tion will not vitiate certificate. If the agent who obtained the application was the agent of the society and was given by the applicant true answers but filled out the application blank with false answers, the certificate will be enforced against the society.
    2. Appeals and errors—when assignments of error waived. Assignments of error not specifically argued are deemed waived.
    Assumpsit. Appeal from the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed December 7, 1910.
    Rehearing denied January 6, 1911.
    Benjamin D. Smith and J. Joseph Cook, for appellant; Truman Plantz, of counsel.
    Milton McClure, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Charles F. Johnson brought suit to recover on a beneficiary certificate issued to Amelia Johnson, his wife, by the Boyal Neighbors of America; certificate was issued on October 20, 1906, on application made by Amelia Johnson, in which she answered the usual questions asked an applicant for membership. Her application and answers to interrogatories asked are made a part of the certificate by apt and proper reference, and were attached to the certificate.

The following answers were written to interrogatories propounded to her in her application:

“15. Are you now of sound body, mind and health, free from disease or injury, of good moral character, exemplary habits and a believer in a Supreme Being? Yes.”
“16 a. Have you within the last seven years been treated by or consulted any person, physician or physicians in regard to personal ailment? No.”
“19 a. Have you within the last three years used any patent or proprietary medicine? No.”
“h. Have you ever had any local disease, personal injury, illness of any kind' or nature,. serious or otherwise? No.”
“31. Have you ever had any disease of the following named organs, or any of the following named diseases or symptoms? Heart? No. Liver? No. LaGrippe? No. Or any other disease? No.”

On her application a certificate was issued for $1,500 with appellee as beneficiary.

The certificate contained the following paragraphs:

“This benefit certificate is issued and accepted only upon the following express warranties, conditions and agreements.
“Second. That should said application, and each and every part thereof, not be literally true, then this beneficiary certificate, as to the member, the beneficiary or beneficiaries shall be absolutely null and void.
“Third. This certificate is issued in consideration of the warranties and agreements made by the person named in this certificate in the application above referred to and agreement to pay all assessments and dues that may be levied during the time that this certificate shall remain in force * * * and no officer or camp of this society is authorized or permitted to waive any of the laws of this society, which relate to the substance of the contract of’indemnity.”

Appellant refused payment on the ground that the answers were warranties and were false, and by reason of their being false, the policy was void.

At the conclusion of the evidence appellant asked the court to instruct the jury to find for the defendant, which instruction was refused. The jury returned a verdict for appellee upon which judgment was rendered.

In urging a reversal of this judgment appellant insists that the answers to the questions above set forth were warranties and not mere statements, that these answers were false and insured having signed an application containing these warranties the policy, according to its terms, became absolutely void, and that it is immaterial whether insured knew the statements made by her, which they insist amount to warranties, were false or not.

That these answers, as written in the application, were false there can be no controversy.

It is contended however by the appellee and the evidence is uncontradicted that the answers actually made by the deceased were true and correct, and that one George Franer, who filled out this application and wrote down the answers therein, was acting for appellant in organizing camps and securing members for its order, and that he did not put down the true answers made by the deceased. If she made true and correct answers to these questions, but answers different from those made by her were written in the application by an agent or representative of appellant, who was securing members for the order and assisting in the institution of camps, and such agent was employed or working under the direction of appellant, then appellee would not be barred by reason of such acts of the agent or representative.

In Royal Neighbors of America v. Boman, 177 Ill. 27, it is held that if the insured states the true facts, in answering questions to the agent who takes the application upon behalf of the insurer, and that the agent wrote false answers to those questions, the insured is bound by. such acts of the representative of the insurer; that the writing of such false answers by such agent will not bar a recovery unless the deceased at the time he or she signed the application with the apswers as written by such agent fraudulently connived and confederated with him to defraud the insurer; that fraud is never presumed and before a policy can be avoided for these reasons, it is incumbent upon appellant to show a fraudulent collusion and confederation between such agent and the insured to defraud appellant.

The Supreme Court has also held that knowledge of an agent soliciting applications and acting in the interests of the principal must be held to be the knowledge of the principal, that the agent is in duty bound to secure the actual facts and report his information to his principal and where no fraud or intention to deceive on the part of the insured is shown the principal must be bound by such knowledge of the agent, and where true answers are made in an application for insurance the validity of the insurance is not affected by false answers inserted by the agent, although the application may contain a provision that the person taking the application is the agent of the assured. Farrenkoph v. Holm, 237 Ill. 94.

The jury were fully warranted in finding from the evidence in this case that Franer who took the application of the insured was the duly authorized representative of appellant in securing applications for benefit certificates in its order. They were also, justified in finding that the insured disclosed to said Franer the exact conditions and circumstances existing regarding her health and made true and correct answers to the questions in the application but that Franer, notwithstanding the answers and information given him by the insured, wrote the false answers in this application; and we cannot say upon these questions of fact that the verdict of the jury is clearly and manifestly against the weight of the evidence. The verdict, therefore, should not be disturbed by this court.

It is also urged as a cause of reversal that the court erred in permitting appellee to show that after the time of the issuing of this policy by appellant the deceased surrendered to the Court of Honor a benefit certificate for like amount which she had held in that order for six years and permitted that certificate to lapse, that the admission of this evidence unduly influenced the jury in arising at this verdict.

The charge made by appellant of fraud in making the application by the deceased and signing it with the false answers to the questions contained therein presents the question of intention on the part of the deceased to defraud appellant" by securing this benefit certificate in its order. Hpon the question of fraudulent intent, all of the matters and things which tend to support or disprove this issue are competent and the fact that the insured surrendered a certificate for like amount in the Court of Honor upon the issuing of this certificate to her by appellant was proper to be considered in determining the question of a fraud on the- part of the insured and the court did not err in admitting this evidence.

Appellant insists also that the court erred in refusing the instructions asked by appellant directing the jury that if the answers made to the questions as above set forth were false, then there could be no recovery by appellee. These instructions entirely omitted the question whether or not correct answers were made by the deceased to these questions and Franer informed of the true conditions and whether with such knowledge false answers were written thereto by Franer, contrary to the answers made by the deceased, then appellant was bound by snch knowledge of Franer. The instructions did not contain all the elements necessary to entitle appellant to a verdict and for this reason they were properly refused.

Appellant does not make any special or specific assignment of error upon any one or more instructions but his argument is general and is applied to each and all of the instructions and unless the errors relied upon are pointed out in the argument and there insisted upon, we are compelled to hold that if any errors are contained therein all such as are not argued are waived.

We do not find any prejudicial error in the record, and the judgment is, therefore, affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Philbrick

license: Public Domain

text:
    M. E. Merwin, Appellant, v. C. U. Williams, Appellee.

      Vebdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight o£ the evidence unless clearly and manifestly so.
    Judgment by confession. Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    Welty, Sterling & Whitmore, for appellant.
    Livingston & Bach, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

On March 31,1906, C. IT. Williams executed a promissory note for one hundred dollars, payable to the order of M. E. Merwin, with interest at seven per cent. Accompanying this note was a power of attorney in the usual form authorizing confession of judgment. On April 3, 1907, judgment was confessed in the McLean Circuit Court. On motion filed by appellee to set aside that judgment the execution was stayed on April 5,1907, and on the convening of the next term of court appellee was allowed to plead.

A plea of general issue was filed with notice setting forth that the note upon which this confession of judgment was had was a series of notes growing out of an original loan made July 29, 1891; that certain payments had been made upon said note at various times and upon the renewals thereof until $368 had been paid on said original loan, and that this note being one of a series of a renewal of the original indebtedness that the same was tainted with usury and that the note had been fully paid.

Trial was had by a jury, the jury found the issues for appellee, judgment was rendered upon that verdict setting aside and vacating the original judgment and for costs against appellant.

The only question involved in this case is whether the note now in controversy is a continuation and renewal of the original loan made July 29,1891. Appellant insists that the original note was paid off and that, in the succeeding notes which were executed from that time on various occasions, until the execution of the present note, different persons furnished the money and the various notes were made payable to different payees, that the original indebtedness was to Merwin Brothers and the indebtedness represented by the note in question is to M. E. Merwin.

It is not disputed that if this note was one of a series growing out of the original indebtedness and is one of a series given in renewing that indebtedness, then the defense of usury is good as to this note, but the sole contention of appellant is that this is not a renewal of the original indebtedness and is not one of a series of notes given for that indebtedness but that on maturity of each preceding note appellee borrowed money to pay off the old notes and gave new notes to the persons from whom the money was so borrowed, and it is conceded on the part of appellee that if the evidence does not disclose that this is one of a series of notes given for the renewal of the original obligation and of which appellant was fully cognizant, then this note cannot be defeated upon the plea of usury.

M. E. Merwin, the plaintiff in this action, is the wife of one James ft. Merwin, who was one of the firm of Merwin Brothers from whom the original $100 was borrowed. An examination of this record shows that all of the transactions, of the loaning of the first $100 and the securing of the money for the renewals of ■ the first note down to the present note, were conducted and transacted by the said James B. Merwin. That appellee knew no other person than James B. Merwin in any of these transactions, that the use of the various parties to whom the various notes were, made payable and who, it is now claimed, furnished the various sums of money, was the act of James B. Merwin.

The various names used as payees in these notes were Merwin Brothers, P. Wakefield, brother-in-law of J. B. Merwin, G-. Miller, his father-in-law, A. M. Wakefield, his sister-in-law, and M. E. Merwin, his wife. Appellee never saw, knew, or had any transaction whatever with any of these parties.

The record discloses that from the time of the making of the original loan appellee paid to James B. Merwin two dollars per month besides paying commissions and expenses of negotiating the loans together with recording- and executing chattel mortgages securing the same, the last payment having been made in August, 1906.

A careful examination of this record discloses the fact that the changes of names of the payee in these various notes was a concocted scheme of James B. Merwin to cover up and obscure the various transactions in order to deprive appellee of any defense of usury connected with the transaction.

Appellant was served with notice and requested to produce his books relating to this entire transaction in court upon trial. They were not produced and after various excuses as to why they could not be produced, he arrived at the conclusion they were destroyed by fire, but by whom, when and where, he did not know; he was unable to tell.

It is impossible to reach any other conclusion on this record than that arrived at by the jury in their verdict, that James B. Merwin was the principal in this transaction, that it was a deliberate scheme concocted and carried on by him through all of the various transactions.

The case of Funston for use, etc., v. Shirey, 151 Ill. App. 22, is in almost all respects identical with this.

Numerous criticisms are made concerning the instructions given and refused by the court in the trial of this cause, but upon a careful examination of those instructions we do not find the trial court committed any error in giving or refusing instructions and this judgment is the only one that could possibly be rendered in this case. There being no error in the trial below, the judgment is affirmed.

Affirmed.


text:
    Charles Cole, Appellee, v. Fred E. Schweer, Appellant.

      Fisheries—who not entitled, to release eatoh. Notwithstanding a catch is made hy a trespasser, a stranger to the owner of the riparian rights is liable for damages if he wilfully releases the catch made.
    Appeal from the Circuit Court of Cass county; the Hon. Gut R. Williams, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    Milton McClure, for appellant.
    J. Joseph Cooke, for appellee; A. A. Leeper, of counsel.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellee herein was engaged in the fishery business along the Illinois Eiver. Through his employes he placed a seine in the body of water known as Wood Slough; this body of water had never been meandered by the government. It is conceded that the Beardstown Fish Company owned all of the land covered by this slough or body of water with the exception of the southeast quarter of the northwest quarter and the southwest quarter of the northwest quarter of section 35, town 19 north, range 12, Cass county. That portion of Wood Slough which was contained within the boundaries of the southwest quarter of the northwest quarter of section 35 was known as “No-Man’s Land” or Bradley tract; and the southeast quarter of the northwest quarter, of said section 35, at the time of the injury complained of was owned by Christie & Lowe and was known as the Christie & Lowe tract.

The record discloses that appellant and the Beards-town Fish Company had been in the habit of seining in the waters on the Christie & Lowe tract and were notified by Christie & Lowe that they must discontinue seining that body of water until some arrangement was made concerning it, either by rental or purchase of the fishery rights therein.

The Beardstown Fish Company, through T. K. Condit, entered into negotiations for the purchase of this tract of land from Christie & Lowe, but no deed of conveyance had been delivered to them and they had not obtained the fishery rights in these waters at the time of the injury complained of. After negotiations to purchase the Christie & Lowe tract had been begun and before any deed or contract had been delivered by Christie & Lowe to Condit for the benefit of the Beardstown Fish Company, appellee on the twenty-ninth day of January, 1909, by his employes, cast his seine in the waters included within the boundaries of the land owned by Christie & Lowe, and “No Man’s Land.” Appellant had then secured no fishery rights from Christie & Lowe. There is some conflict in the evidence as to whether or not in placing the seine, making the haul, some portion of the seine passed through or was in a portion of the waters on the land owned by the Beardstown Fish Company. There is also a conflict in the evidence as to the amount of fish gathered in the seine by the haul made by the employes of appellee. After the seine had been placed and the attempt at landing made, the employes of appellee, owing to its being so late in the day, decided to leave the fish in the seine until the following morning. The employes of the Beardstown Fish Company and appellant were present, watched the haul by appellee, and made no claim or complaint that it was being hauled through any portion of the' waters of the Beardstown Fish Company. After the seine had been made secure so as to retain the fish until the following morning appellant with other members and stockholders of the Beardstown Fish Company and who were then negotiating for the purchase of the Christie & Lowe tract of land, during the evening of the twenty-ninth of January took a boat, went into the waters of either Christie & Lowe or “No Man’s Land,” lifted or moved the seine, so made secure by appellee, and thereby freed and released from the seine the fish containd therein. At the time that these fish were released, they were not upon the land of the Beards-town Fish Company and were not in any waters or upon any land over which the Beardstown Fish Company or appellant had any greater right than did appellee.

Appellee brought his action against.all of the members of the Beardstown Fish Company for damages for releasing and permitting to escape the fish which he had caught and then held captive confined within his seine. Before the trial was finally concluded, appellee dismissed his suit as to all defendants except appellant herein. The trial below resulted in a verdict against appellant and in favor of appellee for $500 and it is to reverse this judgment this appeal is prosecuted.

In the trial court the only justification relied on for the act of appellant in releasing the fish was that he claimed to have the exclusive fishery right within all of the waters of Wood Slough with the exception of “No Man’s Land,” and that at least a portion of the captive fish were caught in the waters of the Beardstown Fish Company.

The questions as to where the seine was first placed by appellee and whether any part of the haul was made within the waters over which appellant or the Beardstown Fish Company owned the fishery right and the question of the amount of fish contained in the seine were questions of fact as was also the question whether appellant or the Beardstown Fish Company owned the exclusive fishery rights in these waters and the burden of proof was upon appellant to establish these facts by the evidence.

The deed from Christie & Lowe to Condit for the benefit of the Beardstown Fish Company had not been delivered and they had received no conveyance for the land designated as the Christie & Lowe tract; neither had they secured any right of fishing there. Lowe, who conducted the negotiations for the sale of the Christie & Lowe tract, is positive in his evidence that the Beardstown Fish Company had no fishery rights in these waters ■ prior to the conveyance to Condit. They had no ground of complaint or right to interfere with appellee in dragging the waters of Wood Slough upon the Christie & Lowe tract, and appellee, having cast his seine and confined therein the fish from these waters and made the seine secure in waters in which appellant or the Beardstown Fish Company had no interest or right whatever, neither appellant nor the Beardstown Fish Company had any right to interfere therewith, and while appellee may have been a trespasser upon the land or waters of the Christie & Lowe tract, neither appellant nor Beardstown Fish Company occupied any better position, and at the time these fish were released from the seine appellant was also a trespasser in the waters sn which these fish were confined and secured by appellee and he had, neither for himself nor the Beardstown Fish Company, any right to release from the seine the fish confined therein. While it may be conceded that appellee was a trespasser in regard to Christie & Lowe, this fact gave appellant no right to interfere with or release the fish confined within appellee’s seine. Scott v. Bryson, 74 Ill. 420; State v. House, 65 N. Car. 315; State v. Shaw, 60 L. R. A. 481.

The Supreme Court of this State has held in the People v. Bridges, 142 Ill. 30, that fish in streams or bodies of water are always classed by the common law as ferae naturae, in which the riparian proprietor or owner of the soil covered by the water, although he may have the exclusive right of fishing, has at best a qualified property therein and this is wholly divested the moment the fish escape to other waters. None of the fish claimed to have been taken by appellee in his seine were ever in the possession or confined in any way by appellant or the Beardstown Fish Company and. if they were captured in waters over which the appellant or the Beardstown Fish Company did not have the absolute riparian rights, then they have no right to complain óf the capture of these fish; and in this case the jury determined by its verdict that the fish were not entrapped in the seine or caught within the waters over which either appellant or the Beardstown Fish Company had any control.

Appellant insists that the instructions given on behalf of appellee are erroneous in that they do not contain all the elements necessary to be determined in his favor before a recovery can be had, yet they direct a verdict; and it is insisted that the error consists in the fact that the instruction omits all question as to whether the fish were held captive in the seine in waters upon the lands of the Beardstown Fish Company.

Appellant’s plea sets forth that a part of the fish were confined and held captive in waters within the boundaries of the lands of the Beardstown Fish Company, and by reason thereof he was justified in releasing all the fish confined within the seine. No question was raised concerning the legal sufficiency of this plea; but replication was filed denying the fish or any part thereof were confined or held captive within the waters of the Beardstown Fish Company.

Waiving all question as to the legal sufficiency of this plea, there is no competent evidence in the record to sustain the plea.

The witnesses who testified on this question had no personal knowledge of the exact location of the line between the northwest quarter and the southwest quarter of section 35, and this was the north line of the waters of the Beardstown Fish Company. The witnesses knew this line only as it had been pointed out to them or they had been told where it was by others.

The burden of proof was on appellant to establish this plea by competent evidence showing the fish were when released south of the north line of the Beards-town Fish Company; this he failed to do and without evidence to support the averments of this plea it was not necessary that the question as to where the fish were confined be contained in the instructions of appellee in order to permit a recovery. Appellant did not attempt to submit this question to the jury by any of his instructions.

The evidence in this case fully justified the finding of the verdict herein and fully warranted the jury in finding that the fish herein confined in the seine were not caught in the waters of appellant or the Beardstown Fish Company or in any waters upon which they had the exclusive right of fishing. There is no serious error in any of the instructions given or refused by the trial court and there being no reversible error in this record, the judgment below is affirmed.

'Affirmed.


text:
    Jared Davis, Appellee, v. J. T. Osborn, Appellant.

      Insurance—when insured not liable for failure to obtain consent to assignment of policies. If the insured upon selling the property-covered by insurance likewise contracts to assign the policies covering the same he is not liable for the loss occasioned by fire before the consent to the assignment has been obtained from the company.
    Action in case. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed.
    Opinion filed December 7, 1910.
    O. M. Jones and Acton & Acton, for appellant.

      Rearick & Meeks, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action on the case by appellee against appellant to recover alleged damages occasioned by loss by fire, of a stack of merchandise purchased of appellant, upon which stock appellant held certain insurance policies and which he contracted and agreed to assign to appellee as a part of the transaction. Before a transfer of these policies could be made it was necessary to obtain the consent of the insurer. This consent was not secured by appellant, and for that reason the assignment and delivery of the policies by him to appellee was not effected; the loss occurred before the policies were forwarded to the insurer to obtain consent to the assignment.

This action is based upon alleged negligence upon the part of appellant in failing* to procure the proper assignment of these policies to appellee prior to the time of the fire. The trial below resulted in a verdict against appellant for $4,250, and it is to reverse that judgment this appeal is prosecuted.

The record in this case discloses that prior to June 29, 1908, Osborn owned a stock of merchandise and fixtures at Collison, Illinois; on June 29th, he sold this stock of merchandise and fixtures to appellee, and as a part of the contract of sale and transfer of said stock of merchandise appellant agreed to assign to appellee certain insurance policies which he held upon the stock of merchandise, amounting to $4,500.

As to the method of consummating the transfer of these policies from appellant to appellee, inquiry was made of the insurance agent through whom the policies were obtained at Allerton, Illinois. On July 3rd, after the information was obtained as to the manner of making this transfer, appellant signed an endorsement on said policies transferring all his interest therein to appellee. The transfer of the stock of merchandise and fixtures was effected on June 29th and appellee then took possession. After the assignment of these policies by appellant, they were, with the knowledge of appellee, placed and permitted to remain in the safe in the store where the stock of merchandise and fixtures were located. Before the policies were sent to the insurance company requesting consent to the transfer and while the policies were in the safe in appellant’s store a fire occurred on the night of July 4th and the stock of merchandise and fixtures were destroyed.

Appellee brought this suit to recover from appellant the amount of the loss on account of alleged negligence by appellant in failing to procure the consent of the insurance company to the assignment of the policies from appellant to appellee, and the only damage proven in this case is the amount of the loss occasioned to appellee by reason of the fire.

Upon the facts shown by this record there was no contract of insurance made by appellant with appellee. Appellant did not contract to procure insurance on this stock for appellee but sold and agreed to assign to appellee the insurance policies, which he then held upon the stock of merchandise, and the conditions of the policies, concerning which the contract was thus made, provide no assignment could be made by appellant to appellee without the consent of the insurer, and there is no evidence in this record that, even had the policies been sent to the insurer, consent would have been given to the assignment. Appellee knew that the consent of the insurance company had not been obtained and that without this consent there was no valid assignment of the policies and if he desired to protect himself against loss by fire in the meantime it was his duty to have secured other insurance upon this stock of merchandise. Brant v. Gallup, 111 Ill. 487.

The recovery in this case is sought to be had upon the theory that the contract made by appellant with appellee to assign these policies was a contract for insurance and under the agreement made appellant can be held responsible for a failure to procure the consent of the insurer to the assignment of the insurance upon appellee’s stock after the transfer to him, but no such effect can be given to the contract made by appellant with appellee. The only contract made was a contract of sale and these insurance policies were included as a part of the property sold by appellant to appellee. Dodd v. Jones, 137 Mass. 322; Warvelle on Vendors, section 15, chapter 35.

The only damage that appellee could possibly have recovered against appellant would have been the amount that appellee would have been required to pay in securing policies of like amount upon this stock of merchandise and there is no proof as to any such ■damage in the record. Dodd v. Jones, supra.

Upon this record no recovery can be had against appellant and the trial court erred in not sustaining the motion to direct the verdict in favor of appellant. The clerk is hereby directed to enter in the judgment of this court the finding of fact that appellant did not contract with appellee to procure for him insurance upon this stock of merchandise.

The judgment of the trial court is reversed.

Reversed.


text:
    People of the State of Illinois, ex rel. Fred E. Latch, State’s Attorney, Appellant, v. William H. Whitaker, Appellee.
    1. Pleading—when failure to carry bach demurrer not error. The failure of the court to carry hack a demurrer sustained to the first defective pleading is not error in the absence of a motion requesting that such demurrer be so carried back.
    2. Pleading—when erroneous sustaining of demurrer to particular counts of information harmless. Notwithstanding it may have been error for the court to sustain a demurrer to certain counts of an indictment such error is harmless if all of the questions arising upon the record were properly presentable under another count of the information as to which no demurrer was sustained.
    3. Pleading—function of replication. The office of a replication is to reply to the issues of fact presented by the plea either by matter of estoppel, denial or by confession and avoidance.
    4. Pleading—when demurrer to replication to pleas filed to information to try title to office properly sustained. A demurrer to a replication filed in such an action is properly sustained where such replication admits the facts set forth in the pleas and does not attempt to traverse these facts but only avers that the facts set forth in the pleas do not justify the conclusions of the defendant that they present a legal title to the office in question.
    5. Costs—when judgment improper. No judgment for costs can be rendered against the plaintiff in an action brought in the name of the People and upon authority of the People.
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    Fred E. Latch, for appellant; Walter C. Headen and George B. Rhoades, of counsel.
    James W. & Edward C. Craig, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

By leave of the Shelby Circuit Court, information was filed on June, 1909, against William H. Whitaker, requiring him to show by what warrant of law he held and exercised the office of master in chancery in Shelby county. This information was filed by the State’s Attorney in the name of the People of the State of Illinois without naming a relator. The information consisted of two counts, demurrer was filed to each count and sustained as to the second and overruled as to the first count. Appellée, Whitaker, then filed his pleas, setting1, forth by what right he held said office. The first plea set forth an appointment of John W. Tantis as master in chancery on the third day of June, 1907, which order provided that said Tantis should hold said office for the term of two years, extending until the first day of the June term, 1909, of said court; that the term of said Tantis expired on the third day of June, 1909, two years from the date of his said appointment, and that on June 5,1909, the term for which John Tantis was appointed having expired, the then presiding judge of said court, Honorable A. M. Bose, appointed appellee as master in chancery for the term of two years; that he thereupon filed his bond and took and subscribed the oath as required by the statute.

The second plea set forth that on the 21st day of June, 1909, the Honorable A. M. Bose, who was then the presiding judge of the Shelby Circuit Court, entered an order upon the records of said court removing John W. Tantis, who was then pretending to act as master in chancery for the reason that he did not possess the necessary qualifications for filling said office and thereupon appointed appellee as master in chancery for a period of two years from that date; that appellee thereupon filed his bond and oath and duly qualified as such master.

The third plea sets up substantially the. same matters as the first, showing the expiration of the term of office of John W. Tantis and the appointment of appellee on the fifth day of June and further, that on the seventh day of June Honorable Truman E. Ames, presiding over said court, entered an order therein reciting that an attempt had been made to appoint appellee as master in chancery contrary to law and reciting that the said Yantis’ term did not expire until the first day of the June term; that the first day of said June term was on the seventh day of June and reciting further that Whitaker did not possess the kind of qualifications necessary for the office. The order appointing W. H. Whitaker on the third day of June was set aside but no appointment of John W. Yantis was then made, the order merely reciting that he was then the legal master in chancery of said county.

Later, on the said seventh day of June, the said Honorable Truman EL Ames entered another order finding that the official term of John W. Yantis expired on that day and reappointed him for the term of two years and that afterwards on the twenty-first day of June, 1909, the Honorable A. M. Bose, then presiding in said court, entered an order removing said Yantis and appointing appellee master in chancery of said court to succeed John W. Yantis; and that after the said appointment on the twenty-first day of June, as aforesaid, appellee duly filed his bond and oath of office and duly qualified as such officer, and each plea ending with the usual absque hoc.

The people, by the State’s Attorney, filed a replication to the pleas of appellee, setting forth substantially the same orders of court as those set forth in the pleas, and the substance of the reply to the pleas in this replication is, that on the fifth day of June, 1909, at the time of the appointment of appellee as master in chancery by the Honorable A. M. Bose, John W. Yantis’ term of office had not expired and that he was then an elector, residing in Shelby county and was the duly qualified master, and that no order of removal was made at that time, consequently the appointment of appellee on June 5th was illegal.

To sustain appellant’s position in this matter he relies upon the order of appointment of John W. Tantis on June 3, 1907, which provided that his term of office should extend for the term of two years and until the first day of the June term, 1909. The statute authorizing the appointment of the master in chancery only authorizes his appointment for the term of two years and the court by its order could not increase this term of office, and this appointment having been made upon June 3, 1907, the term expired June 3, 1909, and John W. Tantis was not the master in chancery of Shelby county on June 5, 1909, at the time of the appointment of appellee. There is no provision for a master in chancery holding until his successor is elected and qualified, but the term of office is for a specific term of two years and at the- time of the appointment of Whitaker on June 5, 1909, the office of master in chancery in Shelby county was vacant.

The replication further set forth the order of the Honorable Truman E. Ames removing said Whitaker from the office of master in chancery on the seventh day of June and the appointment of said John W. Tantis and the qualification of the said Tantis under said appointment.

It also sets forth the order of June 21st reappointing appellee as master in chancery of said court but avers that there had been no order entered after June 7th removing said Tantis from his appointment of that date and avers further, that the Honorable A. M. Rose, who made the appointment of appellee on June 21st, was not then and there the judge of the said June term, but on the said twenty-first day of June was presiding over said court and did make said order, and also avers the due qualification of appellee under and by virtue of his appointment on the twenty-first day of June, 1909, and further that on the seventh day of July, 1909, appellee appeared in the said circuit court and presented a new bond under and by virtue of his appointment of June 21,1909, and that thereupon on the eighth day of July, at said June term, the court entered a nunc pro tunc order, directing that the said bond should be filed as of date June 21, 1909, and denies that the plaintiff holds the office by any other right, etc.

Demurrer was filed to this replication and sustained by the court.

The people elected to stand by their replication and judgment was rendered quashing the writ and it is from that judgment this appeal is prosecuted by the people.

Appellant insists that the replication presented a good and sufficient answer to this plea and further insists that if the replication was bad that the pleas of appellee were bad and the demurrer should have been carried back to the first defective pleading. In answer to the contention that the demurrer should have been carried back, no motion was made by appellant to have the demurrer carried back to the pleas and without such motion or request on the part of appellant the court did not err in failing to carry the demurrer back. People v. Central Union Telephone Co., 192 Ill. 307.

Upon the further contention that the court erred in sustaining the demurrer to the second count of the information it is sufficient to say that all of the questions arising on this record and all of the questions raised were properly presentable under the first count of the information and it is immaterial that the court sustained a demurrer to the second count. People ex rel. v. Cooper, 139 Ill. 461.

Upon the assignment of error that the court erred in sustaining the demurrer to the replication, the office of a replication is to reply to the issues of fact presented by the plea either by matter of estoppel, denial or by confession and avoidance. The replication filed admits the facts set forth in the pleas and does not attempt to traverse these facts but only avers that the facts set forth in the pleas do not justify the conelusions of appellee that they present a legal title to this office and on these facts appellant arrives at the conclusion that the facts do not show a legal title to the office. If the contention of appellant is correct, he should have demurred to the pleas and not replied thereto.

The facts set forth in the pleas show that on June 5, 1909, appellee was duly appointed master in chancery of Shelby county, that on the seventh day of ' June he was removed from said office by the then presiding judge of said court, and that John W. Tantis was thereupon appointed; that Tantis continued in this office as master in chancery until the twenty-first day of June, 1909, when he was removed by an order which recited that he did not possess the qualifications necessary to properly discharge the office and upon his removal appellee was thereupon appointed; that he thereupon filed his bond and duly qualified as such master; consequently on the date of the filing of the information herein, June 30, 1909, appellee was de jure master in chancery of Shelby county, and he is now the de jure master in chancery of Shelby county, and the replication admitting these facts presented no issue and the demurrer was properly sustained thereto, and the court below committed no error in its judgment quashing the writ and information.

This action being brought in the name of the people and upon authority of the people, no judgment for costs can be rendered against it.

The judgment is affirmed.

Affirmed.


text:
    M. C. James, Appellant, v. J. W. Plank, Appellee.
    1. Statutory law—section 3 of chapter 132 in relation to sureties construed. Section 3 of chapter 132 which fixes the time within which a claim shall be filed against an estate in order to prevent a release of the surety is not amended by the amendment made to section 70 of chapter 3 of the Administration Act.
    2. Suretyship—when surety not discharged. Failure to file & claim against the estate of a deceased person within one year after the issuance of letters does not discharge a surety upon the obligation of such deceased person as the statute in relation to sureties does not require that such a claim should be filed except within two years from the date of the issuance of such letters.
    Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    Jambs L. Loar, for appellant.
    J. E. Morrison, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellant, M. 0. James, executed with B. W. Mathews in his lifetime the following note:

“$200.00 McLean, Ill., January 8, 1908.
One year after date we promise to pay to the order of J. W. Plank Two Hundred Dollars with interest at 6 per cent per annum, from date, if not paid when due. Value received.
(Signed) B. W. Mathews,
M. C. James.”

Mathews was the principal maker of this note and James signed it as surety. The principal maker died on February 26, 1908. Letters of administration were issued on his estate March 5, 1908. The note was filed as a claim against Mathews’ estate May 17, 1909, more than one year after/ letters of administration had been granted upon the estate. The claim was objected to and disallowed by the administratrix for the reason that it was not presented against the Mathews’ estate within one year after the granting of letters of administration as required by the statute.

On August 19, 1909, appellee commenced his action to recover the amount due upon the note against appellant.

The declaration contains one special count and the common counts. Appellant filed a plea of general issue and one special plea, setting forth that he was surety upon the note, that Mathews was the principal maker; that Mathews had died; that letters of administration were granted upon his estate on March 5, 1908, and that appellee refused and neglected to present the note against said estate as a claim until May 17, 1909, more than one year after the letters of administration were granted, and that by reason thereof the defendant was relieved and discharged from the payment of the note, etc.

To this special plea a demurrer was filed and sustained by the court. Appellant elected to stand by his plea and judgment was rendered against him for the amount of said note, and it is to reverse that judgment this appeal is prosecuted.

Paragraph 7, section 70 of chapter 3 of the Revised Statutes concerning administration provides that no claim shall be allowed against an estate unless presented within one year after the granting of letters of administration, with certain exceptions. This claim was not presented within one year from March 5, 1908, the date of the granting of letters of administration, and in consequence thereof all rights against the estate so far as this note was concerned were lost and appellant insists that by reason of the failure of appellee to file his claim within one year as required "by the statute that he as surety is released from payment of the note and that the court erred in sustaining the demurrer to his special plea.

Section 3 of chapter 132 of an act in force July 1, 1874, provides that where the principal maker of a note dies the note must be presented against the estate of such principal maker within “two” years from the date of the granting of letters of administration, otherwise the surety shall be discharged. Appellee insists that he complied with this statute by filing the note as a claim against the estate of the principal maker on May 17, 1909, which was within the two years after the granting of the letters of administration and that by reason, thereof the surety is not discharged and that he is entitled to recover the amount of this note from appellant.

At the time of the passage of the act in force July 1, 1874, regarding sureties requiring the owner or holder of a note to present it against the estate of the principal maker within “two” years after the granting of letters of administration upon his estate, section 70 of chapter 3 of the administration act permitted claims to be filed against an estate and participate in the assets any time within two years after the granting of the letters of administration. This section of the administration act was amended by the act now in force, on the first day of July, 1903, so that all claims not filed against an estate within one year after the granting of the letters of administration shall not participate in the assets of the estate, except under certain exceptions; but section 3 of chapter 132 was not amended. These acts are not in conflict and it cannot be held that the amendment to the act concerning administration of estates which reduces the time for filing claims against an estate from two years to one year repealed section 3 of chapter 132 by implication. While it may have been the intention of the Legislature to require a claim to be filed against an estate within the time required by law for so filing it or the surety should thereby be discharged, they did not so amend the law. Section 3, chapter 132, fixes the time within which a claim shall be filed against an estate in order to prevent a release of the surety, and we cannot hold that the amendment to the administration act also amended section 3 of chapter 132 by changing the time limit of two years to one year without invading the province of. the legislature.

Appellant strenuously insists upon the application of the general rule of law that where a principal is discharged the surety is released and insists that by reason of the neglect or failure of appellee to file his claim against the estate of Mathews, deceased, within one year and thereby being denied the right to share in the proceeds of Mathews’ estate and thereby releasing the estate from further liability the surety is reT leased, but this principle of law has no application where the release of the principal occurs by operation of law. People v. White, 11 Ill. 342.

The right of appellee to proceed against appellant was not lost by failure to file his claim against the Mathews’ estate within the one year. Villars v. Palmer et al., 67 Ill. 204.

The court properly sustained the demurrer to this plea and there being no error in the record, the judgment is affirmed.

I'Affirmed.


text:
    Herbert W. Morehouse, Appellee, v. Edwin Winter, Appellant.
    1. Brokers and factors—when party occupies relation of broker to transaction. A party acting as the agent of both borrower and lender and whose only interest in the transaction is that of a commission, is, in law, a broker.
    2. Brokers and factors—when broker not personally liable. Where an agent or broker acting for other parties discloses the principal and gives to the parties for whom he is acting full knowledge of the circumstances and conditions surrounding the transaction, no liability exists against the broker.
    Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the May-term, 1910.
    Reversed.
    Opinion filed December 7, 1910.

      Rearick & Meeks and Edwin Winter, for appellant.
    J. B. Mann, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellant was a broker in the business of securing and placing loans upon real estate, and had been engaged in this business for a number of years at Dan-ville, Illinois.

On January 5, 1909, a party representing himself to be one Greorge Miller came to the office of appellant and stated he was about to purchase a farm near Armstrong, Illinois, then owned by one Courtney; that he was to pay $135 an acre for the farm, which consisted of eighty-three and a fraction acres, further representing to Winter that he would pay cash for the farm but was buying it for a son and wanted to repair and otherwise improve the place, and for this purpose would need $3,000 and desired to obtain it through Mr. Winter. Appellee Morehouse, a physician and surgeon at Danville, whose office was upon the same floor in the Temple Building with Winter’s, had for a number of years been loaning money to various parties through appellant, and under an arrangement between Morehouse and Winter it was agreed by them that in all loans so made by Winter for Morehouse the papers should be executed in the name of Winter and assigned to Morehouse without "recourse; the reason assigned for this was that Morehouse did not desire the public to know that he had money to loan.

■ After the conversation with Miller, Winter proceeded to the office of Morehouse and informed him that one Miller was about to purchase the Courtney farm and desired a loan of $3,000. Morehouse was familiar with the location of this land and after some few inquiries of Winter informed Winter that he would furnish the money and would even furnish an amount up to $5,000 on this farm, if it was desired. Winter, thereupon, reported to Miller that he could furnish the money for him. Miller then left Winter’s office for the stated purpose of going to Armstrong and securing an abstract for the farm from Courtney. On the following Friday Miller returned to Winter’s office with Courtney, the owner of the land. Courtney then informed Winter that he had sold the farm to Miller for $135 per acre and requested Winter to prepare the papers necessary for the transfer, saying that there was a notary public at Armstrong and it would be unnecessary to bring his wife down to execute the papers. The deed transferring the farm from Courtney and wife to Miller was then prepared by Winter; the exact amount of the consideration was left blank on account of a controversy between Miller and Courtney as to the exact number of acres. Appellant was then requested to have the abstract brought down to date; Miller left the office ostensibly with the intention of going to Lafayette, Indiana, to secure the money to pay for this farm, saying he would meet Courtney at Armstrong, pay for the land, get the deed, and return to Winter’s office on the following Monday.

In the meantime appellant went to Morehouse, informed him fully of the contemplated transaction, that Courtney, the owner of the land, had been in with Miller and of the conversations had between them.

On Tuesday, January 12th, Miller returned to the office of Winter with the deed which Winter had prepared; the deed bore the name of Courtney and his wife and bore a certificate of acknowledgment before a notary public at Armstrong, with the notary’s seal attached. While Miller was in Winter’s office More-house entered the office; he was then informed by Winter that the gentleman then there was Miller who was negotiating this loan, and Morehouse remarked, “He looks like a substantial farmer.”

At the time of the preparation of the mortgage Winter informed Miller what Morehouse had said about loaning more money on this land. Miller remarked that he did not want to go heavily in debt but he would be willing to take $500 more, and the mortgage was accordingly made for $3,500, the note and mortgage were executed by Miller, placed on record and the note properly endorsed by Winter to Morehouse without recourse in accordance with their previous understanding.

Before the note and mortgage were delivered to Morehouse it was learned that Miller had not purchased the Courtney farm and that Winter and More-house were the victims of a confidence game. After ascertaining this fact, Winter then tendered the papers to Morehouse; he refused to accept them and demanded the return of his money, and to recover from Winter this action is brought.

The judgment below resulted in a verdict against appellant for $3,500 with interest from the time of the commencement of the action, and it is to reverse that judgment this appeal is prosecuted.

The substance of the facts as above set forth is admitted by all parties to this transaction and the only difference being as to the exact language used in the various conversations which took place between More-house and Winter.

There is no contention, however, that Winter did not disclose to Morehouse the fact that it was represented to him by Courtney and Miller that Miller had purchased the Courtney farm and that Miller was the principal who was borrowing the money from Morehouse, for which a mortgage was to be executed by Miller upon the premises so bought from Courtney, and the facts being virtually admitted, the only question remaining is one of law as to the liability of Winter to Morehouse by reason of this transaction. The fact being fully established that Winter was acting as the agent of both Miller and Morehouse and the only interest he had in the matter was the compensation of a broker’s commission of two per cent, which was paid to him by Miller, he was, therefore, what is known in law as a broker. Saladin v. Mitchell, 45 Ill. 79.

The rule of law is too well established to admit of serious controversy, that where an agent or broker, acting for other parties, discloses the principal and gives to the parties for whom he is acting full knowledge of the circumstances and conditions surrounding the transaction, no liability exists against the broker, and the rule applicable thereto is fully set forth in Walker v. Cross, 160 Fed. Rep. 372; Drennan v. Bunn, 124 Ill. 175, and Bailey v. Galbreath, 100 Tenn. 599.

This doctrine has been adopted and followed by the decisions in numerous other states and must now be held to be the rule of law applicable to actions similar to the case at bar.

Winter, having fully disclosed to Morehouse that Miller was the principal who was making this loan and informed Morehouse with whom he was dealing, of all of the information possessed by Winter regarding this transaction, and having taken the mortgage to himself as trustee and made himself the payee in the note under the established custom and usage as previously requested by Morehouse, Winter acted in good faith throughout this entire transaction with Morehouse and was guilty of no act that could render him liable to repay this money to Morehouse. From the conclusion reached herein, it is unnecessary to pass upon any other questions raised upon this record.

The court below should have directed a verdict for appellant. The clerk will enter in the judgment of this court the finding of fact that appellant was a broker acting as the agent of both Miller and More-house, disclosed his principal to Morehouse and gave Morehouse all of the knowledge and information he, Winter, possessed as such broker.

The judgment of the trial court is reversed with finding of fact.

Reversed.


text:
    Henry Stodgell, Defendant in Error, v. Charles H. Garnett et al., Plaintiffs in Error.

      Injunctions—when, to restrain collection of judgment, proper. If a plaintiff in an action promises the defendant that he will dismiss such action and the defendant relying on such promise gives no attention to the suit, a judgment obtained therein by the plaintiff is fraudulent and its collection will be enjoined by á court of equity.
    Bill for injunction. Error to the Circuit Court of Hancock county; the Hon. John A. Gbay, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    Samuel Naylor, Jr., for plaintiffs in error; John W. Williams and John D. Miller, of counsel.
    Charles J. Scofield and J. Paul Califf, for defendant in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by defendant in error against plaintiffs in error to enjoin the collection of a certain judgment rendered by the Circuit Court of Hancock county in favor of Charles H. Garnett, plaintiff in error, against Stodgell, defendant in error.

The action in which the judgment was rendered was originally commenced before a justice of the peace upon a note which had signed thereto the names of defendant in error, Stodgell, his wife, Elizabeth Stodgell, and a brother, George H. Stodgell. The suit was originally commenced by plaintiff in error, Charles H. Garnett, against the persons whose names appear upon said note. No service was ever had upon George H. Stodgell, who was the principal maker of said note.

Upon the trial before the justice of the peace, judgment was rendered against Henry Stodgell and his wife, Elizabeth Stodgell, for the amount of said note. Henry Stodgell prosecuted an appeal to the Circuit Court. While his appeal was pending in the Circuit Court, defendant in error contends that in several conversations had with plaintiff in error, Charles H. Gar-nett, the said Garnett informed defendant in error that he would appear in the Circuit Court and dismiss the said suit as against defendant in error.

Upon the appeal to the Circuit Court no summons from that court was served upon the said George H. Stodgell and before trial was had therein Elizabeth Stodgell, wife of defendant in error, died. An administrator was appointed for her estate; her death was suggested upon the record; her legal representative not being a proper party in this action the suit abated as to her.

Defendant in error insists that while the said cause was pending in the Circuit Court of Hancock county plaintiff in error, Charles H. Garnett, became satisfied that the note was a forgery so far as it related to the name of Henry Stodgell and that Henry Stodgell never signed the said note or authorized anybody to sign it for him, and being so convinced, Charles H. Garnett informed defendant in error that he need not take any more notice of the said suit and that upon the next day he would appear in said court and dismiss it. If -this promise was made defendant in error, he had a right to rely on such promise. Wierich v. De Zoya, 2 Gilman 385.

At the time defendant in error alleges this conversation took place plaintiff in error gave to defendant in error a certain writing which defendant in error, without then reading it, relied upon as an agreement to dismiss the suit, but instead thereof, the paper was a notice that plaintiff in error would appear in the said court of Hancock county on a certain day and ask for an order dismissing the appeal.

Defendant in error, relying upon the alleged statements of plaintiff in error, did not go near the said Circuit Court but on the contrary relied upon the alleged promise of plaintiff in error that the same would be dismissed. Plaintiff in error in accordance with said writing appeared in the Circuit Court and obtained an order dismissing the appeal and denies that he had made any such statement to defendant in error.

Defendant in error was not aware of the existence of said judgment for nearly ten months after its rendition and was first informed thereof upon notice by the sheriff of the issuance of an execution on the judgment and demand for payment.

Upon a hearing the chancellor rendered a decree setting aside the judgment and granted a perpetual injunction restraining Charles H. Garnett from attempting in any manner to collect the judgment.

If this conversation occurred as insisted upon by defendant in error then defendant in error had the right to rely upon such promises to dismiss the suit, and a failure to further appear in court and defend the action was not negligence on his part. Cassidy v. Automatic Time Stamp Co., 185 Ill. 431; How et al. v. Mortell et al., 28 Ill. 478.

Where a judgment has been obtained by fraudulent representations, deceit or other fraudulent means a court of equity has power to set the same aside and grant a new trial. How v. Mortell, supra; Owens v. Ranstead, 22 Ill. 161; Wierich v. De Zoya, 2 Gilman. 385.

Defendant in error insists that the note upon which suit was so brought was forged and that the same had never been signed by him or authorized. It is unnecessary for this court to pass upon the question whether or not the said note was so forged or not. The only question presented by this record and by this cause is whether or not a fraud was practiced upon defendant in error by which he was induced to refrain from making any defense to said note, and upon this question the chancellor found in favor of defendant in error. The decree rendered by the chancellor set aside the judgment and granted defendant in error a new trial in the action at law on said note and permits defendant in error to make whatever defense he may see proper in that action.

The question as to whether or not plaintiff in error is entitled to recover upon said note is not an issue in this cause; and we are of the opinion that the finding and decree is fully warranted hy the evidence and that the same is correct and that the court properly set the judgment aside and ordered a new trial in that cause.

There is no error in the record in this cause and the decree is affirmed.

Affirmed.


text:
    Ekke Bohlen, Appellant, v. Anna Whitehouse et al., Appellees.
    This case Is controlled by the decisions in Walters v. Stacey, 122 Ill. App. 658.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Montgomery county; the Hon. A. M. Rose, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    H. C. Stuttle and Hill & Bullington, for appellant.
    Lane & Cooper and T. A. Gasaway, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action commenced before a justice of the peace for damages by reason of the alleged trespass of stock belonging to appellees upon the farm of appellant. The trial below resulted in a judgment against appellant for costs.

Appellant and appellees were the owners of adjoining farms. The line between their farms was one hundred. and sixty rods long-; a hedge fence was on the division line.

Section 3 of chapter 54 of Hurd’s Eevised Statutes is as follows:

“When two. or more persons shall have lands adjoining, each of them shall make and maintain a just proportion of the division fence between them.”

By agreement or arrangement between them, the then owners of the land, appellant assumed charge of the north half of this fence and appellees of the south half; thereafter appellant cut from this hedge numerous large trees and branches and used them as posts. Under the statute it became the duty of appellant to maintain one half of this division fence.

The only questions involved upon this record are whether there was any agreement or arrangement be- ■ tween appellant and appellees regarding the portion of this fence each should maintain, also whether' appellees’ stock went upon the premises of appellant through that portion of the division fence which it was the duty of appellant to maintain.

The trial below was had without a jury and the trial court found the issues for the defendant and rendered judgment accordingly and he was fully warranted in finding that this was a division fence, and that it was appellant’s duty to maintain the north half thereof; that the stock of appellees went upon said premises through that portion of this division fence which appellant was required to maintain. The trial court properly applied the law to the facts as found by it.

The question regarding the duty of adjoining land owners in relation to division fences was before this court in the case of Walters v. Stacey, 122 Ill. App. 658, and the rule as therein expressed is applicable to the case at bar.

Appellant insists the court erred in refusing to hold as the law certain propositions submitted by him,.

The first proposition was upon the theory that if the fence through which the stock passed in going upon appellant’s farm, was the fence of appellees, then the plaintiff could recover; this proposition omitted the question as to whether appellant was bound to maintain said fence.

The second proposition was upon the theory that if the plaintiff used any portion of his land along this division fence for the pasturing of stock, then it became the duty of appellees to maintain the entire fence along that portion of the land where stock was so pastured.

The third proposition asked the court to hold that if the appellees’ stock trespassed upon appellant’s premises through a fence which the defendants had repaired, then the law presumes that the fence which appellees so repaired was appellees’ fence.

Neither of these propositions contained a correct statement of the law applicable to this case and they were properly refused.

There being no error in this record, the judgment of the lower court is affirmed.

Affirmed.


text:
    Earl Cox, Appellee, v. The Chicago & Alton Railroad Company, Appellant.
    Fibe communicated by locomotive—When judgment reversed with finding of facts. A judgment against a railroad company will be reversed with a finding of facts in its favor where the jury with their general verdict rendered special findings supported by the evidence to the effect that the engine in question was equipped with the latest and most approved methods of arresting and preventing the escape of fire, and also to the effect that such engine was skillfully handled.
    Action in case. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed with finding of fact.
    Opinion filed December 7, 1910.

      Kirby, Wilson & Baldwin, for appellant.
    J. Marshall Miller, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by Earl Cox to recover from the Chicago and Alton Railroad Company for the loss of corn standing in the field along and adjacent to the right of way of the railroad company.

The declaration contains two counts; the first count charges negligence in permitting dry grass, weeds and combustible materials to accumulate and grow upon the company’s right of way and by means whereof a fire starting and originating in the said right of way was thereby communicated to the field of said Cox, by reason whereof his corn was damaged and destroyed.

The second count of the declaration charges negligence in a failure to properly equip and provide the latest methods and devices for arresting and preventing the escape of fire from the engine of the railroad company and in carelessly and negligently handling and operating the said engine of the railroad company, and that by reason thereof fire damaged and destroyed certain corn then standing in the field, property of said Cox.

The jury returned a general verdict in favor of Cox and upon special interrogatories submitted by the railroad company the jury found that the engine was properly equipped with the latest and most approved appliances for the arresting and preventing of the escape of fire; it also found that the engine was not negligently or carelessly handled and operated by the servants of the railroad company. The general verdict returned by the jury fixed the damages at $206.25 and $25 as a reasonable attorney’s fee. Judgment was rendered on the verdict, and to reverse that judgment this appeal is prosecuted.

The special findings of fact by the jury entitled aplant to a judgment upon the second count of the declaration, notwithstanding the general verdict of the jury, and if the verdict of the jury can he upheld in this case it must be alone upon the charge of negligence contained in the first count of the declaration, that charge being that it was the duty of appellant to keep its right of way free from dry grass and weeds so that fire from a locomotive engine and train would not by means of such dry grass and weeds spread and be communicated therefrom to the field of corn of appellee, but not regarding that duty appellant negligently suffered large quantities of dry grass and weeds to accumulate, etc., by means whereof fire emitted and thrown from a certain locomotive engine then and there ignited the dry grass and weeds and spread and was communicated to and upon the field of corn of the plaintiff.

The record in this case discloses that on October 15, 1908, at about 12:05 p. m., a passenger train passed along the field of appellee on appellant’s right of way and that the fire was seen about twenty minutes after the train had passed. The fire was first discovered by one Frank Tally who was husking corn at that time in a field on the west of the Cox farm, then being farmed by one Trotter. Tally says that when he discovered the fire it was then so close to him he had to get into his wagon and get out as fast as he could. The fire was then burning in both fields of corn. Tally says when he discovered the fire it was half way across the field. It was then a quarter of a mile away from the railroad. He did not see the fire start. After leaving the corn field Tally with two or three other parties, after fighting the fire, went down to the right of way of the railroad. The fire had been and was then burning upon the right of way of the railroad company, but the record in this case does not disclose and there is no proof that the fire originated upon appellant’s right of way. None of the witnesses were able to say where the fire started or that it started upon the right of way. When the witnesses reached the right of way it was burning in both the field and the right of way and was then burning on the right of way as a back fire; and while it has been held sufficient that a fire starting or being discovered almost immediately or soon after the passing of a railroad train upon the railroad right of way, where there is no proof of any other means by which the fire might have reasonably been communicated, this is sufficient to raise the presumption and make a prima facie case that the fire was communicated by fire escaping from the engine, but we are not aware and are not disposed to hold that such fact is sufficient to raise the presumption or make a prima facie case that the fire originated upon the right of way of the railroad company and was then communicated to the adjoining fields. The presumption is just as great and just as reasonable that the fire originated in the adjoining field as that it originated upon the right of way and the plaintiff in this case being required to prove the specific charge of negligence in the first count of his declaration by a preponderance of the evidence that the fire originated on the right of way and from that right of way was communicated to the adjoining field.

The fact that the jury in this case found that the engine was equipped with the latest and most approved methods of arresting and preventing the escape of fire and was skillfully handled, disposes of the allegation that the fire was negligently and carelessly permitted to escape from this engine and under the verdict of the jury in this case, although the fire may have been communicated to the field by fire escaping from the engine, unless this fire originated in the dry grass on the right of way of appellant, there can be no recovery in this case and appellee has failed to establish that fact by any evidence in this record.

The judgment must therefore be reversed and the clerk will enter in the judgment herein a finding that the evidence fails to show that the fire originated on the right of way of appellant.

Reversed with finding of fact.


text:
    Frank Haynes, Executor, Appellant, v. William H. McDonald, Appellee.
    This case is controlled by the decision in Haynes v. McDonald, 158 Ill. App. 294.
    Appeal from, the Circuit Court of McDonough county; the Hon. George W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    Elting & Hainline, for appellant; Don P. Pennywitt, of counsel.
    Flack & Lawyer, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellant against appellee to recover rent alleged by appellant to be due the estate of his testator, Josiah McDonald, from appellee by reason of the demise of certain premises to appellee by Josiah McDonald in his lifetime.

The premises were demised for one year and before the expiration of the year appellant’s testator died, and the land which he had demised in his lifetime to appellee was devised by his will to various parties or was inherited by his heirs by descent. The manner in which it thus passed from the testator is immaterial for the determination of this cause.

Appellant does not aver in his declaration that under the terms of the demise any time was fixed or determined when the rent should be paid but relies for a recovery wholly upon section 94, chapter 3 of Hurd’s Revised Statutes, and the determination by the appellant executor that in his opinion it was for the best interest of the estate to use this rent for the payment of debts against the estate of testator.

The identical questions involved in this case were involved in the case of Haynes, Executor, v. W. A. McMcDonald, 158 Ill. App. 294, and the facts and circumstances in this case being identical with the facts in that case, and the law applicable thereto the same, this case is controlled by what is there said, and the judgment is, therefore, affirmed.

Affirmed.


text:
    Fannie Fern Howell et al., Appellees, v. City Gas & Electric Company, Appellant.

      Contracts—when terminated by death. A personal contract between two parties is terminated by the death of one of them.
    Action in case. Appeal from the Circuit Court of Edgar county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    S. I. Headley and W. H. Clinton, for appellant.
    H. S. Tanner and Frank J. O’Hair, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellees were the owners of a residence property in the city of Paris, Edgar county, Illinois; appellant was the owner of a public heating plant in that city. During the lifetime of one J. W. Howell, who was the testator of appellees, connections were made from the pipes of the heating plant with the pipes in the residence of said Howell, and heat was furnished until his death. After his death appellees, feeling that they were not able to pay for thus heating the house, about October 1st, went to the office of appellant and informed it that appellees were the only persons occupying the house, and it being a very large house they did not wish to pay for the heat while the house was occupied only by two persons, and informed appellant that they were expecting or wanted to secure roomers and as soon as they obtained roomers would want to use the heat again, but until such time requested appellant to turn off the heat.

The pipes of appellant were laid from the heating plant in the streets of the city of Paris, and connected with pipes on the property of its customers but in the case at bar the evidence does not disclose who owned the pipes from the property line at the street up to the valve and union joint where connection was made with the pipes leading to the radiators in the house of appellees. There was no basement in the house. This valve was located under the floors of the house. A connection known as a union joint was used to connect these pipes; it was located some four to six inches from the valve by which the heat was turned on and off and was between the valve and the pipes which connected with the radiators in the house. The system was a hot-water plant and appellant had furnished hot water through its pipes to the house of appellees. The hot water system required a return pipe through which the water, after circulating through the radiators, was then conducted back to the plant of appellant. This return pipe also had a union joint, which connected this return pipe with the pipes of appellees. On this return pipe was also a valve located about the same distance from the union.

The request made of appellant by H. H. Howell, one of the appellees, was that the hot water should be turned off only temporarily. Appellant sent one of its servants to the house; he-crawled through a small opening in the foundation of the house to the point where the valves were located and closed both pipes by turning the valves as tight as they could be turned. This was the usual and customary method of making a temporary cut-off of the hot water. By turning the valve on the supply pipe the hot water was prevented from going into the pipes and by turning the valve on the return pipe the water was prevented from returning from the radiators and pipes in the house to the plant. The pipes and radiators in the house were thus left filled with water.

After the hot water was cut off as requested by appellees, appellees then moved from the greater portion of their house and used stoves in the rooms occupied by them, leaving that portion unoccupied without any heat whatever. The pipes were left in this condition, cold weather came on and the water in the pipes froze, bursting the pipes and water escaping therefrom damaged the furniture and walls of appellees’ house and this action is brought to recover for such damage.

The declaration in this case charges that the reason appellant shut the heat off from appellees’ property was that the contract.to furnish the same had expired and appellees had informed appellant that they would no longer continue to take the heat. It is insisted by appellant that the charge in the declaration being that the contract between appellees and appellant- had expired and that appellees would not renew said contract for another season is not sustained by showing that appellees went to appellant and informed it they desired to discontinue the use of the heat temporarily. Upon this contention it is sufficient to say that the contract originally having been entered into by and between appellant and the testator of appellees and being a contract between testator and appellant, upon testator’s death the contract was terminated by reason of the death of one of the parties, and that the contract having been thus terminated, proof that appellees did not further desire to continue the same at that time is sufficient to meet this allegation in the declaration.

The contention that the original contract was made with the father of appellees in his lifetime and that no contract having ever been made with appellees for furnishing heat, and for that reason appellant is not liable, is without merit.

Appellant insists that as only one of appellees requested, that the heat be shut off, therefore, there is no right of recovery by the other appellee. This contention is also without merit. Appellees each had an undivided interest in the premises and a request by one is sufficient to authorize a recovery by both even if there was no specific appointment or request that H. H. Howell act for both, his action could afterwards be adopted and ratified as was shown to have been done in this case by submitting to having the heat turned off by appellant.

The proof is that after the damage had been done and a plumber secured to stop further damage, that upon a disconnection of the unions upon the feed and return pipes, it was discovered that the valve which appellant had attempted to close upon the feed pipé was insufficient to make a complete closing of this pipe and after the unions were disconnected and the pipes drained it was found that water continued to run through this valve; that the water in the pipes which escaped into the rooms was warm water and the jury were fully warranted from the evidence in this case in finding that the appellant herein had not shut off or turned off the hot water heat as requested by appellees, and the failure to effectually shut off this water was the cause of the water escaping and causing the damage to appellees’ house and furniture, and that it was the duty of appellant herein at the time of the turning of this valve to know and ascertain that the water was so completely and sufficiently shut off that it could not circulate into or through the radiators or pipes in appellees’ house.

No complaint is made of the instructions given or refused in this case and the only question raised upon the record in this court is as to whether or not the evidence is sufficient to sustain this verdict and we cannot say the verdict is manifestly and clearly against the weight of the evidence and unless we are so convinced the judgment should not be disturbed.

The amount of damage recovered is not excessive under the evidence and there being no prejudicial error in this record, the judgment below is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Edwin Baum, Plaintiff in Error.
    1. Dram-shops—when records competent. Upon failure to produce' the original stamp or license issued by the government upon proper notice, the record of the government showing the issuance of such stamp or license is competent.
    2. Dram-shops—when indictment sufficient. Held, that the indictment in this case charging the conduct of a saloon in anti-saloon territory was not insufficient in that it did not specifically set forth how and upon what conditions the township in question became anti-saloon territory.
    3. Dram-shops—when sufficiency of indictment not saved for review. Held, that in the state of the record in this case the sufficiency of the indictment was not saved for review.
    4. Instructions—refusal of cautionary. While it is proper in certain cases to give instructions of a cautionary character it is not reversible error to refuse a cautionary instruction although it could very properly have been given.
    Prosecution for unlawful sale of intoxicating liquors. Error to the Circuit Court of Macon county; the Hon. William G. Cochran, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed December 7, 1910.
    C. E. Schroll, for plaintiff in error.
    W. E. Redmon, for defendant in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

Plaintiff in error was indicted by the grand jury of Macon county, indictment consisting of six counts. The first five counts charged plaintiff in error with the illegal sale of intoxicating liquors in anti-saloon territory and the sixth charged him with keeping a place where intoxicating liquors were sold within anti-saloon territory.

The trial resulted in a verdict finding defendant guilty on the first, second, third and sixth counts of the indictment. The court rendered judgment on the verdict, fining plaintiff in error one hundred dollars on each of the first, second and third counts and seventy-five dollars on the sixth count, and ordered that he he confined in the county jail twenty days as a part of the judgment on the sixth count, and that he stand committed to the county jail until all fines and costs were paid, or otherwise discharged, etc., and that the sheriff close the place of business until defendant give bond in the sum of $1,000 as required by statute.

Plaintiff in error prosecutes this writ of error • to reverse that judgment.

The record in this case discloses that plaintiff in error was the keeper of what was known as a soft drink parlor in the city of Decatur at No. 142 Merchant street; that in the basement of this place of business was fitted up a bar and at least two witnesses testify that they purchased whisky over this bar in the basement of plaintiff in error’s place of business.

For the purpose of protecting him against Federal interference and prosecution he obtained a government license or revenue stamp for the sale of intoxicating liquors at that place. This license or stamp was taken in the name of the “Metropolitan Club” with plaintiff in error as “proprietor.” Two witnesses testify positively to having purchased whisky at this place and paid for the same. Plaintiff in error was served with a notice to produce his revenue stamp or license upon the trial; he failed to do so, and the records of the issuing and granting of this license or stamp to the Metropolitan Club with plaintiff in error as proprietor as shown in the office of the Internal Revenue Collector at Springfield, Illinois, was offered in evidence. This record was objected to and the only objection made to its introduction was, because it did not properly describe plaintiff in error as a keeper of a soft drink parlor in the city of Decatur. The original revenue stamp being in possession of or control of defendant, his failure to produce it authorized the admission of the best evidence possible on the part of the people, and this was the record; plaintiff having failed to produce the original'stamp or license upon proper notice given to him, the records were properly admissible in evidence to show the issuance of this stamp to the Metropolitan Club with plaintiff in error as proprietor.

Plaintiff in error offered no evidence whatever upon the trial of the case and insists that the evidence on behalf of the people is not sufficient to warrant a conviction. The record in this case fully justifies the finding of the jury and the judgment is fully warranted by the evidence.

Plaintiff in error complains of the refusal of an instruction which was intended as a cautionary instruction concerning the weight of evidence to be given the parties employed for the purpose of securing evidence against plaintiff in error in this cause. While it is proper in certain cases to give instructions of a cautionary character, it is not reversible error to refuse a cautionary instruction although it could very properly have been given and there was no error in the refusal of this instruction complained of in this case.

Plaintiff in error insists that the indictment is not sufficient in that it does not specifically set forth how and upon what conditions the Decatur township became anti-saloon territory and that the averment in the indictment that it is anti-saloon territory was a mere conclusion of the pleader and was not sufficient to support a verdict. Regarding this matter it is sufficient to. refer to the statute concerning the sale of intoxicating liquors in anti-saloon territory. Paragraph 41, chapter 43, Hurd’s Revised Statutes, fully covers this question. But even if plaintiff in error’s contention could be sustained, he is in no position to raise that question on this record for the reason no motion for a new trial or the ruling of the court thereon is preserved in the hill of exceptions; neither is any exception preserved in the record or bill of exceptions to the ruling of the court in denying the motion for a new trial, nór does the record or the bill of exceptions contain any exception to the action of the court in overruling the motion in arrest of judgment, nor is there any exception preserved in the record or bill of exceptions to the judgment rendered by the court in this cause. The only exception preserved either in the record or the hill of exceptions is an exception to the verdict returned by the jury, and there are, therefore, no questions properly presented in this record for the consideration of this court and the judgment below is affirmed.

Affirmed.


author: Mr. Presiding Justice Baker

text:
    Board of Education of the City of Chicago, for use of Chandler Lumber Company, Defendant in Error, v. Aetna Indemnity Company, Plaintiff in Error. Board of Education of the City of Chicago, for use of Chandler Lumber Company, Defendant in Error, v. United Surety Company, Plaintiff in Error.
    Gen. Nos. 15,352 and 15,363.
    Consolidated for Hearing.
    1. Bonds—when enforced for benefit of subcontractor. Notwithstanding the absence of a statute requiring a hoard of education to take a bond for the protection of subcontractors, if a bond he taken conditioned for the prompt payment of all claims for labor and material, it will be enforced for the benefit of a subcontractor.
    2. Bonds—what not defense to action upon. In an action at law upon a bond it is no defense that the beneficial interest is in another or that the plaintiff when he recovers will be hound to account for the proceeds to another.
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 3, 1911.
    Statement by the Court. In the Municipal Court the plaintiff recovered,,in an action of the fourth class, a judgment against the ¿Etna Indemnity Company for $18,900 debt and $721.25 damages and costs, and in another action of the same class, a judgment against the United Surety Company for $18,100 debt and $825 damages and costs. In both cases a jury was waived, and most of the facts stipulated. Each defendant sued out a writ of error and the cases have here been consolidated for hearing.
    Yiggo F. Olsen entered into two contracts in writing with the Board of Education of Chicago, each for the carpenter work of a school building. Each contract contains the provision that the party of the first part (Olsen) ‘1 shall promptly make payments to all persons supplying said party of the first part labor and materials in the prosecution of said work.” Contemporaneous with the execution of said contracts Olsen gave a bond for one building in the penal sum of $18,900, with the ¿Etna Company as surety, and another bond for the other building in the penal sum of $18,100, with the United Surety Company as surety. These respective bonds recite the making of the contract between Olsen and the Board of Education, and make the contract and specifications a part of the bond. The condition of each bond is that, if Olsen shall perform his contract, etc., and, ‘1 shall promptly make payment to all persons supplying him with labor or materials in the prosecution of the work provided for in said contract,” then the obligation to be void, otherwise to remain in full force and effect. The Chandler Lumber Company furnished lumber to Olsen, which was used by him in the construction of each of said school buildings, and Olsen was indebted to said Lumber Company for lumber .furnished to him and used in the building specified in the bond of the .¿Etna Company in the sum of $721.25, and in the further sum of $825 for lumber used in the building specified in the bond of the United Surety Company.
    Fyffe & Adcock, for Ætna Indemnity Co., plaintiff in error.

      Ira C. Wood, for United Surety Company, plaintiff in error; Edmund D. Adcock and Ira C. Wood, of counsel.
    Adams & Froehlich, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

There is no statute requiring the Board of Education to take a bond from a contractor for work on a school building, conditioned to secure payment for labor or material furnished to such contractor. But the contracts between Olsen and the Board provide that he shall make prompt payment to all persons supplying him with labor or materials in the prosecution of the. work called for by his contract. The condition of each of the bonds is that Olsen shall perform the contract, etc., and,1 2 shall promptly make payment to all persons supplying him labor or materials in the prosecution of the work provided for in said contract.” The real meaning of the parties is that the obligors contract to perform the condition of the bond under the conventional sanction of a penal sum. The claims of the Lumber Company are for lumber furnished to Olsen and used in the prosecution of the work provided for in his contracts with the Board of Education, and fall clearly within the very letter of the condition of the bonds. To hold the bonds in question valid and binding is only to compel the obligors to do the thing they bound themselves to do. The distinction between these cases and Spalding Lumber Co. v. Brown, 171 Ill. 487, and Searles v. City of Flora, 225 id. 167, is, that in those cases the bonds contained no condition that the obligors should pay for labor or materials furnished to the contractors, and in these cases the bonds contain such conditions.

We do not think that the contention, that because there was no statute requiring the Board of Education to take a bond for the protection of subcontractors, the condition for their protection in the bonds in question cannot be enforced for the benefit of the Chandler Company, is tenable. City of St. Louis v. Von Phul, 133 Mo. 561; Knapp v. Swaney, 56 Mich. 345; Smith v. Bowman, 88 Pac. Rep. 687.

The instruments sued on being under seal, only the obligee can maintain an action at law on them; but it is no defense that the beneficial interest is in another, or that the plaintiff when it recovers will be bound to account for the proceeds to another.

We find no errors in the rulings of the court on questions of evidence nor on the propositions of law submitted by the respective parties.

The judgment in each case will be affirmed.

Affirmed.