text:
    Robert V. McAllister, Appellee, v. Elmer Robinson et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Coles county; the Hon. John H. Mabshat.t., Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    Statement of the Case.
    Bill by Robert V. McAllister, complainant, against Elmer Robinson and others, defendants, for partition of certain premises owned as tenants in common by complainant and one of the defendants whose husband, the other defendant, occupied the premises as a tenant. From a decree finding that the lease expired March 1, 1917, and ordering delivery of possession at that time, defendants appeal.
    The tenant’s occupation of the premises began under an oral lease for one year, terminating March 1, 1913, for a rental of $400, for one-half of which he gave his note to complainant for one year, at the maturity of which and termination of the year’s tenancy he paid the note and gave a note for a like amount for another year, repeating the transaction' until March 1, 1916, when complainant refused to release at the same rent. By arbitration the rent for the ensuing year was fixed at the same amount and a new note for $200 was given to complainant for his half of the rent for that year. Bill for partition was filed averring termination of the tenancy March 1, 1917. Defendants’ answer stated that the tenancy was from year to year and that no written notice had been served.
    Abstract of the Decision.
    1. Landlobd and tenant, § 88

      —when tenancy from year to year is created. A tenancy from year to year is created where the tenant is permitted to hold possession of land after termination of his lease without any new agreement and without failing or refusing to pay the rent, and he does not claim adversely to his landlord.
    2. Landlobd and tenant, § 87*—when tenancy from year to year is not created. Where a tenant under an oral lease for a year at an agreed rental gave his note therefor payable at the end of the year, when he again entered into an oral lease for another year at the same rental, for which he gave his note payable as before, and renewed the transaction for several years, until at the end of the last year the landlord refused to release at the same rental and, on arbitration, the rental was fixed for the ensuing year by the arbitrators and the tenant gave his note therefor payable at the end of that year, held that the last lease was a special contract for that year, at the rental agreed upon, terminating at the end of the year, and was not a tenancy from year to year, and the tenant was bound to deliver up possession at that time without notice to quit.
    3. Pabtition, § 54*—when evidence in suit for is at variance with answers. Where a brother and sister were tenants in common of certain real estate in possession of the sister’s husband as a tenant under a lease from her brother, to whom one-half of the agreed rental was paid, held, in a suit for partition brought by her brother against her and the husband in which their respective answers alleged that the husband was a tenant from year to year of the whole premises, that her testimony that her husband was a tenant from year to year of her undivided half in the premises could not be considered as an admission binding upon plaintiff, as no such issue was raised by the answers.

      Albert C. and Ben F. Anderson, for appellants.
    Charles C. Lee, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Arthur Lehman & Company et al., Appellees, v. Thomas Slat and Antoniga Slat, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded with directions.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Bill by Arthur Lehman & Company and others, complainants, against Thomas Slat and Antoniga Slat, defendants, to subject certain real estate purchased in the name of the defendant Antoniga Slat, wife of the other defendant, to the executions of certain judgments secured by complainants against the latter defendant on the ground the deed to her of said premises was made for the purpose of defrauding his creditors. From a decree in favor of complainants, defendants appeal.
    J. E. Hogan, for appellants.
    George T. Wallace, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Creditors’ suit, § 24 —what judgment is' sufficient to sustain a creditor’s hill. A judgment secured before a justice of the peace is sufficient to sustain a creditor’s bill.

2. Husband and wipe, § 147*—when earnings of wife are not subject to claims of creditors of husband. Since the Act of 1869 the earnings of a wife realized from keeping boarders with the consent of her husband will be considered her own personal property and, as a general rule, protected from subsequent creditors of her husband.

3. Husband and wipe, § 151*—when property of wife may not be claimed by her as against husband’s creditors. Where a wife permits her husband to use her property as his own in his business she cannot interpose her claim thereto as against his creditors.

4. Husband and wipe, § 151*—when purchase by wife of property from own funds is fraudulent as to all of husband’s creditors. Where a debtor secured credit from certain creditors in the purchase of a stock of goods in his mercantile business upon their faith in his claimed ownership of a certain certificate of deposit in a bank, which was in fact owned by his wife and was later used in the purchase of certain real estate in her name, held that if the purchase of such real estate was a fraud as to one creditor giving credit upon the faith of the debtor’s apparent ownership of the certificate it was a fraud as to one not knowing of the certificate but giving faith to his apparent ownership of the purchased stock of goods.


text:
    John Lutz, Appellee, v. P. T. B. Matheny, Appellant.
    1. Appeal and error, § 1682*—when error in overruling demurrer to declaration is waived. Pleading over waives error, if any, in overruling demurrer to a declaration.
    2. Bills and notes, § 479*—what defense may not be first raised on appeal. A defense that a renewal note was a release of an indorser upon the original note not raised by plea cannot be raised for the first time on appeal.
    3. Bills and notes, § 360*—what defense must be pleaded specially. A defense that an indorser was discharged by an extension of time to the principal debtor must be pleaded specially.

      4. Bills and notes, § 360

      —what are necessary averments in plea of discharge of indorser by extension of time. A plea of a discharge of an indorser by extension of time to the principal debtor must aver not only that the plaintiff promised to extend the time for a valuable consideration but also that the agreement was for a definite period without the consent of the defendant.
    5. Bills and notes, § 412*—when purchaser of note has burden of proof to show talcing in good faith without notice. In an action by the purchaser of a note given for a gambling consideration against the payee, who indorsed same without recourse, where the declaration alleged and the proof showed these facts, held that the burden of proof was upon plaintiff, under sections 59 and 52 of the Negotiable Instruments Act (J. & A. 1f1i 7698, 7691), to show that he took the note in good faith and without notice of its infirmity.
    6. Bills and notes, § 207*—what is effect of indorsement of note without recourse. An indorsement without recourse does not release the indorser from the warranty that the note is valid and legal.
    7. Bills and notes, § 215*—when payee indorsing note without recourse not released from warranty as indorser. A contemporaneous contract made at the time of the indorsement without recourse of a note by the payee thereof and delivery of same to a purchaser who had no knowledge of the illegality of the note that the purchaser, if the note was not paid, would make no effort to recover the consideration paid by him for said note from the payee, and would save and keep him harmless from any attempt by the maker to recover the value of the note or by any one else to obtain recourse of any kind from the payee, held not to have the effect of releasing the payee from his warranty as an indorser.
    Appeal from the Circuit Court of Champaign county; the Hon. Fbankhn H. Boggs, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    H. Leonard Jones and Francis T. Carson, for appellants.
    Fred B. Hamill, Walter B. Riley and Acton & Acton, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellee recovered a judgment against appellant for the sum of $2,432 in an action of assumpsit in the Circuit Court of Champaign county. The action is based upon the liability of appellant as an indorser upon a promissory note for the principal sum of $2,400, executed by one W. A. Lachenmyer, March 19, 1912, payable to the order of appellee one year after date, with interest at 7 per cent, per annum.

The declaration consists of a single special count and the allegations thereof are, in substance, that said Lachenmyer, on said date, executed said promissory note and delivered the same to appellant; that the consideration of said note was money won by appellant from Lachenmyer by gambling and was void under the laws of the State of Illinois; that on June 28, 1912, appellant, well knowing that the note was void for the reason aforesaid, and for and in consideration of 1 Eegal automobile, 1 automobile top, 1 wind shield and 1 speedometer of the value of $1,200, delivered by appellee to appellant, and in further consideration of the sum of $1,000 paid by appellee to appellant, appellant indorsed without recourse and delivered to appellee said note; that after said note became due and after the maturity thereof, said Lachenmyer renewed the same with appellee by executing and delivering to him a renewal note dated April 2,1913, wherein said Lachenmyer, one year after date, promised to pay to the order of himself $2,400 value received, with 7 per cent, interest per annum from the date until paid, and which said note was indorsed on the back thereof by said Lachenmyer, and thereupon appellee canceled and returned to said Lachenmyer the original note first mentioned; that after the execution and delivery of said renewal note, appellee transferred and delivered the same to one Sherfy for the sole purpose of bringing suit thereon, but the full beneficial interest of said note at all times remained in appellee; that in the suit brought on said renewal note in the Circuit Court of Champaign county, the plaintiff failed to recover, because the consideration of the note was for money won at gambling, and that the judgment in the Circuit Court was affirmed by the Appellate Court [190 Ill. App. 443]; that by reason of section 65 of the Negotiaable Instruments Act (J. & A. [[ 7704), appellant became liable to pay to appellee the amount of the original note with interest thereon.

Appellant filed a general and special demurrer to the declaration on the ground that it failed to allege that at the time of the indorsement and delivery to appellee by the defendant of the original note, he, appellee, was then and there without knowledge or notice that the said note was made for the consideration of money won by gambling, and that the declaration failed to aver, in substance or in fact, that the plaintiff was an innocent purchaser in good faith, without notice and for value of the original note. The demurrer was overruled and thereupon appellant filed five pleas, the first of which was a plea of the general issue and the other four special pleas. The second plea avers that the note sued on was executed by Lachenmyer and delivered to appellant for the sum of money therein mentioned, upon the consideration of money won by appellant from Lachenmyer by gambling with cards, and that the same was indorsed by appellant without recourse and that appellee then and at all times since had full knowledge and notice as to the consideration for which said note was given by Lachenmyer to appellant, wherefore by force of the statute, etc., the said supposed promise of appellant to appellee and the said supposed indorsement were and are wholly void. A demurrer to this plea was sustained.

The third plea avers that appellee, at the time of the indorsement and delivery of the note to him by appellant, had full knowledge that the consideration of the same was for money won by defendant Lachenmyer by gambling; that the consideration for the indorsement and delivery of said note by appellant to appellee was the payment of $1,000, and the delivery of said articles of personal property mentioned at the agreed valuation of $900; that there was a contemporaneous agreement between appellant and appellee as follows:

“Articles of Agreement.
“Made and entered into this 29th day of June A. D. 1912, by and between P. T. B. Matheny of Champaign, Illinois, party of the first part, and John Lutz of Champaign, Illinois, party of the second part.
“Whereas, the party of the first part has this day sold to the party of the second part a certain promissory note dated March 19, A. D. 1912, said promissory note being for Twenty-four Hundred ($2400.00) Dollars, payable to the order of P. T. B. Matheny one year after date of making for value received with seven per cent, interest per annum from date until paid, signed by W. A. Lachemnyer for and in consideration of One Thousand ($1000.00) Dollars in cash and one automobile, Begal make, taken by the party of the first part at a consideration of Nine Hundred ($900.00) Dollars.
“Now in consideration of the said party of the first part accepting said automobile and Hundred Seventy-five ($1000.00) in cash in full consideration for the above described note, the party of the second part does hereby agree to take said note without any recourse whatsoever on the party of the first part, P. T. B. Matheny, and if said note is not paid by W. A. Lachenmyer the party of the second part agrees that he will make no effort of any kind to recover the consideration paid by him for said note from the party of the first part and that he will save and keep harmless the said party of the first part from any attempt of W. A. Lachenmyer to recover from said party of the first part the value of said note and that he will save and keep him harmless from the attempts of any party whatsoever to obtain recourse of any kind from said party of the first part.
“Witness our hands and seals this... .day of...... A. D. 1912.
Johh Lutz, Jr., (Seal)
Party of the second part.
P. T. B. Mathbhy, (Seal)
Party of the first part.”

The plea further avers that by the terms of said contract appellee released appellant from all liability whatever by reason of the indorsement and delivery of said note.

The fourth plea, after setting out that appellee had full knowledge of the consideration for which said note was given and the contract mentioned in the third plea, avers that by reason of the indorsement and delivery of said note, the payment of said money and delivery of said property and the making of said contract, appellant and appellee, as to the entire transaction between them, were in pari delicto and the said sale of said option, privilege or chance of recovering or attempting to recover upon said note by suit or otherwise by appellee against said Lachenmyer was and is void.

The fifth plea is similar to the third plea with the exception that it does not set out the contract in hcec verba.

It is first urged that the court erred in overruling the demurrer to the declaration. This error, if any, was waived by appellant pleading over thereto.

It is also contended that appellant was released from his liability as indorsor on the note sued on, for the reason that appellee took from the maker a new note extending the time of payment for the definite period of one year and canceled and surrendered the note sued on to Lachenmyer without appellant’s consent. The rule undoubtedly is that if the holder of a note takes from the maker a new note payable at a future time in the place of it, and surrenders the old note to the maker, there is an extension of the time of payment which will release an indorser on the old note, who does not consent. 8 C. J. sec. 636, p. 431, and cases cited. A note given in renewal is supported by the consideration of the original note and is a sufficient consideration for an extension of time. Joseph Wolf Co. v. Bank of Commerce, 107 Ill. App. 58; 8 C. J. sec. 352, p. 217. Appellant, however, filed no plea in the court below raising this defense, and we cannot consider it here for the first time. If an indorser is defending on the ground of an extension of time to the principal debtor as a discharge, such defense mnst be pleaded specially, and the plea must aver not only that the plaintiff promised to extend the time for a valuable consideration, but also that the agreement was for- a definite period without the consent of the defendant. Commercial Loan & Trust Co. v. Mallers, 237 Ill. 119; 8 C. J. sec. 1215, p. 930.

The sixth-and seventh instructions given on behalf of appellee were as follows:

“6. The court instructs the jury that the fact that the defendant Matheny sold the note in question to the plaintiff and indorsed said note without recourse does not relieve the defendant from liability on said note under said indorsement unless the jury believes from the evidence in this case that the plaintiff did in fact know that the said note was given for gambling, at the time said note was purchased by the plaintiff.

“7. The court instructs the jury that the burden of proving by the evidence that the plaintiff in this case, John Lutz', had notice, at the time the defendant Matheny sold him the note in question, was given for a• gambling consideration, rests upon the defendant. ’ ’

Section 59 of the Negotiable Instruments Act (J. & A. ft 7698) provides that every holder is deemed prima facie to b'e a holder in due course, but when it is shown that the title of any person who has negotiated the instrument was- defective, the burden is on the holder to prove that he, or some person under whom he claims, acquired the title as a holder in due course. Section 52 of said Act (J. & A. if 7691) defines a holder in due course and provides that he is such a holder, as has taken the instrument under four conditions. The fourth condition is as follows: “(4) That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

There is no controversy but that the consideration for the note was illegal and the note void. The declaration filed by appellee avers these facts to be true and bases the liability of appellant as indorser upon them, and the proof also establishes them. Under these circumstances the burden of proof was upon appellee to show that he took the note in good faith and without notice of its infirmity. Hide & Leather Nat. Bank v. Alexander, 184 Ill. 416; Merchants’ Loan & Trust Co. v. Welter, 205 Ill. 647; Justice v. Stonecipher, 267 Ill. 448. In the case of Justice v. Stonecipher, supra, in construing sections 59 and 52 of said Act, the court said: “It is apparent when the section is read in connection with all the other sections in that article, that it means to place the burden upon the holder to prove that he, or some person under whom he claims, comes within the provision of the fourth clause of the statutory definition of a holder in due course, that is, that the burden is then upon him to show that at the time the instrument was negotiated to him he had no notice of any infirmity in the instrument or defect in the title 'of the person negotiating it.” Under the circumstances in this case the burden of proof was upon appellee to show that he had no notice of the infirmity of the note.

Upon this theory the court also erred in sustaining the demurrer to the second plea which averred, in substance, that the note was void for the reason that the consideration thereof was for money won at gambling, and that at the time it was indorsed by appellant and .delivered to appellee the latter had full knowledge of these facts.

The fourth instruction given for appellee told the jury that the written contract signed by appellant and appellee did not of itself have the legal effect of releasing the defendant from any liability under the warranty made by the plaintiff by virtue of his indorsement. It is claimed by appellant that this contract was a complete release of any liability on his part as indorser and that the instruction is erroneous.- We cannot agree with this contention. An indorsement without recourse does not release the indorser from the warranty;that the note is valid and legal. And if appellee took the note without knowledge of its illegality, the contract did not have the effect of releasing appellant from his warranty as indorser.

The fifth instruction is erroneous for the reasons already stated. There was no reversible error in the rulings of the court upon the admission of evidence. For the errors indicated, the judgment is reversed and cause remanded.

Reversed and remanded.


text:
    Hannah L. Whyers, Appellee, v. City of Quincy, Appellant.
    1. Municipal cobpoeations, § 1107

      —when question of fact whether walk remained in dangerous condition sufficient length of time to charge city with notice. In an action to recover damages for personal injuries sustained by a fall on a city sidewalk, alleged to have become so old and worn that it was so smooth, slick and slippery from age, wear and. usage that pedestrians could not secure a safe foothold thereon and was dangerous to persons walking thereon, held that the question whether the walk had remained in such condition for such length of time as to charge the city with notice was one of fact.
    2. Municipal cobpoeations, § 1107*—when question for jury whether sidewalk is dangerously defective. Whether a particular stone flagging sidewalk, slippery with age and usage, was dangerously defective, held to be a question of fact for the jury, in an action against a city to recover damages for injuries due thereto.
    3. Municipal cobpoeations, § 1107*—when contributory negligence of pedestrian slipping on walk is question for jury. Whether plaintiff, in an action against a city, to recover damages for injuries due to a slippery sidewalk, was contributorily negligent in wearing shoes the heels of which were more or less worn, making her more liable to slip, and whether such fact contributed to the injury, held to be questions of fact for the jury.
    Appeal from the Circuit Court of Adams county; the Hon. Albebt Akebs, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    John G. Wheelock and John T. Inghram, for appellant.
    John E. Wall, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an appeal from a judgment recovered by appellant against the City of Quincy in the sum of $500, in an action on the case for personal injuries, resulting from a fall on a sidewalk on October 5, 1915. The negligence charged in the declaration was that the city maintained a sidewalk constructed of stone flagging, which was so old and worn that it had become so smooth, sleek and slippery from age, wear and usage, that pedestrians could not secure a safe foothold thereon and it was dangerous to persons walking thereon, by reason whereof appellee, while in the exercise of due care, slipped and fell thereon, and was injured.

The testimony of the witnesses for appellee described the stone where the accident happened in various ways, such as “smooth, sleek and slippery,” “smooth as ice,” “slick in places,” “slick as glass,” “slick and slippery,” etc. The evidence tends to show that the stone had been used for over thirty years and that similar accidents had happened at the same place. It was a question of fact whether it had remained in such condition for such length of time as to charge the city with notice. Whether a particular stone flagging sidewalk, slippery with age and usage, is a dangerous defect is a question of fact to be determined by the jury. O’Brien v. City of St. Paul, 116 Minn. 249 [2 N. C. C. A. 1]; Latell v. Cunningham, 122 Minn. 144; Lyon v. City of Logansport, 9 Ind. App. 21; Cromarty v. City of Boston, 27 Mass. 329; City of Denver v. Hickey, 9 Colo. App. 137; Smith v. City of Tacoma, 51 Wash. 101; Morton v. Smith, 48 Wis. 265.

It is argued that appellee was guilty of contributory neglig'ence because she wore shoes, the heels of which were more or less worn, thus making her more liable to slip. Whether appellee was guilty of negligence in wearing shoes in the condition shown by the evidence, and whether such fact contributed to the injury, were also questions of fact for the jury.

No other questions are presented for our consideration and the judgment will be affirmed.

Affirmed.


author: Mr. Justice Eldbedge

text:
    William C. Hood, Appellant, v. George B. Christie, Appellee.
    (Not to he reported in full)
    Appeal from the Circuit Court of Schuyler county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action by William C. Hood, plaintiff, against George B. Christie, defendant, to recover under a written contract between plaintiff and defendant and one other, whereby defendant agreed to pay certain drainage assessments for plaintiff which might thereafter be levied against plaintiff’s land then owned by him in consideration of the conveyance to defendant by plaintiff of a certain portion of plaintiff’s land. From a judgment for plaintiff for $193.07 only, for an assessment levied prior to a sale of the land to a third person, upon trial before the court without a jury and a stipulation of facts, plaintiff appeals and defendant filed cross errors.
    The contract provided that whereas Christie, Hood, Lowe and others were the owners of about 6,000 acres of swamp land in Schuyler county, and it was the intention of a majority of said owners to reclaim the same by. the construction of levees, ditches, etc., and Hood had conveyed to Christie and Lowe a certain 15 acres of land therein described, therefore, in consideration of said conveyance, Christie and Lowe agreed that in case a drainage district should be organized, they would pay for said Hood or his heirs all assessments which might be levied against any lands then owned by Hood; and if such work should be done by mutual consent of the owners without the organization of a drainage district, they would pay the proportionate share or shares of said Hood which might be charged to any lands in said territory then owned by him; provided, however, that the agreement to pay such assessments or proportionate share of said Hood should not be construed as a covenant running with said lands, but was made expressly personal to said Hood and his heirs.
    Abstract of the Decision.
    Covenants, § 4

      —when personal covenant discharged by conveyance not revived by reconveyance. Where defendant for a consideration agreed to pay for plaintiff and his heirs all drainage assessments which might be levied upon plaintiff’s land then owned by him, and the contract provided that it should not be construed as a covenant running with the land but as personal to plaintiff and his heirs, and plaintiff thereafter sold and conveyed said land, which later was reconveyed to him, held that, under the terms of such agreement, defendant was liable only as to assessments levied prior to plaintiff’s conveyance of the land, and that his liability was not revived by plaintiff’s repurchase of them.
    Plaintiff conveyed all his land by warranty deed July 24, 1914, at which time assessments against same amounted to $193.07. The purchaser reconveyed the land by quitclaim deed to plaintiff March 25, 1916. Subsequently another assessment for $101.65 was levied against the land. Upon defendant’s refusal to pay either assessment, plaintiff paid both and brought this action.
    B. O. Willard, for appellant.
    Glass & Bottenberg, for appellee.

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

   Mr. Justice Eldbedge

delivered the opinion of the' court.


text:
    Milford Martin by Otis F. Glenn, Guardian, Appellant, v. Mattoon Journal Company, Appellee.
    (Not to Tbe reported in full.)
    Abstract of the Decision.
    1. Libel and slander—defamatory effect of insinuations. Insinuations may be as defamatory as direct assertions, since the effect and tendency of the language used and not its form is the criterion.
    2. Libel and slander—how defamatory imputation may he inferred. A defamatory imputation may be inferred from odious comparison.
    3. Libel and slander, § 102

      —what is effect of demurrer to declaration for libel. A demurrer to a declaration for libel admits the publication of the alleged libelous matter, that the words were false and published maliciously and the meaning supplied by an innuendo.
    Appeal from the Circuit Court of Coles county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded with directions.
    Opinion filed October 11,1917.
    Statement of the Case.
    Action by Milford Martin, by Otis F. Glenn, his guardian and next friend, plaintiff, against the Mattoon Journal Company, defendant, to recover damages for libel. From a judgment for defendant upon demurrer to the declaration, plaintiff appeals.
    Craig & Kinzel, Barr & Feirich and Martin & Glenn, for appellant.
    Bryan H. Tivnen and James W. & Edward C. Craig, for appellee.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

4. Libel and slander, § 100 —when declaration in action for libel presents good cause of action. On demurrer to a declaration for libel, averring that the murderer of plaintiff’s mother had killed her in a most malicious, brutal and depraved manner, detailing same; that he was a most wicked, depraved, vicious, immoral and vile person, a liar, burglar, thief, convict and murderer, and so known generally in the community and State and United States, at the time of the publication complained which stated that plaintiff had applied for and been granted permission to spring the trap at the execution of the murderer and that “this is a perverted idea of revenge, which should not be countenanced by civilization, and places the young man on a plane little higher, if any, than that of the murderer,” held that the declaration presented a good cause of action.


text:
    Everett Smith, Appellee, v. County of Logan, Appellant.
    State’s Attorney—what is salary of in counties of not less than 80.000 and not more than 51,000 inhabitants. The salary of State’s Attorneys under that part of section 1 of the Act in force July 1, 1912, fixing and providing for the payment of the salaries of State’s Attorneys (J. & A. U 5674), relating to counties of not less than 30.000 and not more than 51,000 inhabitants, is $3,500, inclusive of the amount payable out of the State treasury under the law.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed with final judgment in this court.
    Opinion filed October 11, 1917.
    Covey & Woods, for appellant.
    McCormick & Murphy and Beach & Trapp, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

The population of the county of Logan, as shown by the last federal census taken in 1910, was 30,216. Appellee was elected State’s Attorney in said county in 1912 and qualified and acted as such until December, 1916. In 1912 the Legislature passed an act fixing and providing for the payment of the salaries of State’s Attorneys, which became enforced July 1st of that year. This act was amended in 1913, but for the purpose of this case the amendment is immaterial.

Section 1 of this Act (J. & A. 5674) provides as follows: “That there shall be allowed to the several State’s attorneys in this State, hereafter elected, for services to be rendered by them, the following annual salary, to-wit: To each State’s attorney in counties not exceeding 30,000 inhabitants, the sum of $100.00 per each 1,000 inhabitants and major fraction thereof, the said salary to be in addition to that now provided by law to be paid by the State: Provided, however, that the maximum sum to be paid any State’s attorney in any such counties shall not exceed the sum of $2,500.00 per annum.

“To each State’s attorney in counties containing not less than 30,000 inhabitants and not more than 51,000 inhabitants, the sum of $3,500.00 per annum; to each State’s attorney in counties containing not less than 51,000 inhabitants and not more than 100,000 inhabitants, the sum of $5,000.00 per annum in the aggregate, which sum shall include the salary which is to be paid out of the State treasury as now provided by law; to each State’s attorney in counties containing not less than 100,000 inhabitants and not more than 250,000 inhabitants, the sum of $6,000.00 per annum; to each State’s attorney in counties of more than 250,000 in- . habitants, the sum of $10,000.00 per annum. The population of all counties for the purpose of fixing salaries as herein provided shall be based upon the last federal census immediately previous to the election of State’s attorney in each county.”

Section 3 (J. & A. ft 5676) in part provides as follows: “The salaries of the State’s attorneys, excepting that part which is to be paid out of the State treasury as now provided by law, shall be paid out of the county treasury of the county in which the State’s attomey shall reside, in quarterly annual installments on the order of the county board on the treasurer of said county.” Section 5 (J. & A.-ft 5678) provides for the repeal of all laws or part of laws in conflict therewith.

Logan county comes within that class of counties containing not less than 30,000 inhabitants nor more than 51,000 inhabitants. On December 10, 1912, the Board of Supervisors of Logan County passed a resolution directing the county clerk to issue orders to the State’s Attorney for his “salary as fixed by the Legislature.” Until September 5, 1915, appellee received orders for his salary from the county clerk in the sum of $875 quarterly, which is equal to the sum of $3,500 a year, and in addition thereto he received out of the State treasury the sum of $100 quarterly, thus drawing a salary of $3,900 per annum.

The board of supervisors at its June meeting in 1915, passed a resolution, reciting that appellee had been drawing out of the county treasury the sum of $875 quarterly, whereas he was only entitled by law to the sum of $775 quarterly, and directing that thereafter he should only be paid out of the county treasury the sum of $775 quarterly; and also directing that in case appellee' refused to refund the excess amounts theretofore paid to him, such excess should be retained out of the salary to become due to him until the county treasury had been reimbursed for such excess payments. Appellee refused to refund any part of the salary he had received out of the county treasury and refused to accept any orders thereon for any less sum than $875 quarterly, and drew no salary from that time on.

In January, 1917, appellee sued the county in as-sump sit to recover the sum of $5,250, being six quarterly payments of $875 each, and also for interest thereon. The declaration consists of the common counts and a special count to which appellant filed a plea of the general issue. By agreement the cause was heard before the court without a jury. The court rendered judgment against appellant for $5,250, but refused to include any interest on the deferred payments. On the action of the court in refusing to allow interest, appellee has filed a cross error.

It is the contention of appellant that appellee, as State’s Attorney, was entitled to a salary in the gross sum of $3,500 per annum, which should include the $400 paid by the State, thus making the amount the county should pay, $3,100. Appellee contends that under the proper construction of the statute he was entitled to receive $3,500 per annum from the county in addition to the $400 he received from the State.

It is apparent from the language used in the sections quoted that that part of the Salary Act of 1872 (J. & A. ff 5599), which provides for the payment of the State treasury to State’s Attorneys of the sum of $400 per annum, was not intended to be repealed by the Act of 19Í2 (J. & A. TJ 5674 et seq.), and that all State’s Attorneys in any event shall still receive this amount from the State treasury.

The sole question is whether the $3,500, the amount fixed as the salary of thé State’s Attorney in the class of counties to which appellant belongs, is inclusive or exclusive of the $400 paid out of the State treasury. In the first class of counties mentioned in section 1 (J. & A. 5674), the amount paid out of the State treasury was exclusive until the combined amount paid by the county and State equaled the sum of $2,500, when it became inclusive. In the class of counties having the next higher population than that to which appellant belongs, the $400 paid by the State is included in the aggregate salary. In the succeeding classes of counties, nothing is said as to whether the amounts of the salaries stated shall include or exclude the amount paid by the State. While the intention sought to be expressed in regard to the salaries of State’s Attorneys in the classes mentioned in the second paragraph of section 1 (J. & A. 5674), is very inartificially set forth by the language employed and is not free from doubt, still we are of the opinion that the words used therein, “in the aggregate, which sum shall include the salary which is to be paid out of the State treasury as now provided by law,” apply to each of the classes of counties enumerated in the second paragraph of said section, as this would include all the counties in the State with the exception of those mentioned in the class provided for by the first paragraph of the section. This reasoning is supported somewhat by the language of section 3 (J. & A. 5676), which provides that the salaries of all State’s Attorneys shall be paid out of the county treasury except that part thereof which is to be paid out of the State treasury, thus implying that the amount of the salaries of all State’s Attorneys shall include the amount paid by the State except those otherwise expressly provided for in the act, viz., those mentioned in the first paragraph of section 1, while they remain under a maximum of $2,500.

The evident intention of the Legislature was to attempt to fix the salaries of the State’s Attorneys of the different counties approximately commensurate with the volume of work which the duties of their office would impose upon them. This would depend largely upon the population of the respective counties. In order to arrive at this result, as near as may be, the Legislature divided the counties of the State into five classes according to population and fixed the compensation of the State’s Attorneys at a certain amount in each class. The first class mentioned in the act embraced all counties having not to exceed 30,000 population. Out of the one hundred and two counties in the State, sixty-one fall within this class. There is, however, very great variation in the population of these sixty-one counties, the population of some being as low as 7,000, and the Legislature probably had this in mind when it fixed the compensation of State’s Attorneys in this class in the manner in which it did. No fixed amount of salary is provided for in this class of counties, but the amount thereof is dependent upon the population of each county. But, as the provision therefor had to be general and apply to all the counties alike in the same class, and as under the provision that the State’s Attorney should receive $100 for each 1,000 inhabitants would in some of the very small counties make the compensation of the State’s Attorneys thereof unreasonably small, there was apparent reason that such salaries should be in addition to the $400 paid by the State.

No such reason would apply to the larger counties in the other classes, and likewise there could be no apparent reason why the salaries of the State’s Attorneys in counties containing not less than 51,000 inhabitants and not more than 100,000 inhabitants should include the salary paid out of the State treasury, and the salaries of the State’s Attorneys of the counties of the other classes mentioned in the second paragraph should exclude it. As to the first class of counties only is there any provision in the act that the salary shall be in addition to the amount paid by the State. The act fixes the salary for State’s Attorneys, in the class to which the county of Logan belongs, at $3,500, and it must be held that this amount includes the $400 paid yearly by the State.

The suit was defended by appellant in good faith and there was no vexatious delay on its part, consequently the court did not err in refusing to allow interest, and the cross error is overruled.

The proofs show that there is actually due appellee from appellant the sum of $3,650. Judgment will therefore he entered in this court in favor.of appellee and against appellant for the sum of $3,650, and against appellee for costs.

Affirmed with final judgment in this court.


text:
    Joseph King and Emma F. King, Appellants, v. Uriah T. S. Rice, Trustee. William E. Harpster et al., Appellees.
    Equity, § 146

      —when Mil is multifarious. Where a bill alleged a sale of certain lands, part of a larger tract, by complainants to one defendant who was to pay the purchase price therefor upon a mortgage for a larger amount then existing upon the entire tract, and supposed to be held by another defendant to whom such purchase price was paid and who executed and filed a release of the mortgage as to the lands sold, leaving the remaining lands only subject to the mortgage, and also the execution by complainants of a new note and mortgage upon the remaining lands to include the supposed remaining indebtedness secured by the original mortgage and an additional loan, the old mortgage to be released and the new one filed to replace it, and alleged further that the old mortgage had never been released and was held by another of the defendants, together with the new mortgage, without any credit thereon for the payment made by the purchaser of the small tract, held that the bill was multifarious, as it included two distinct transactions requiring separate decrees and separate defenses.
    Appeal from the Circuit Court of Moultrie county; the Hon. Géokoe A. Sentee, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Henley & Douglas and E. J. Miller, for appellants.
    F. M. Harbaugh, for appellee William E. Harpster.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an appeal from a decree entered in the Circuit Court of Moultrie county sustaining a demurrer to the amended bill, of complainant and dismissing the same for want of equity.

The bill was filed by Joseph King and Emma P. King, his wife, and it is averred therein that Joseph King on December 9, 1912, was the owner of a certain tract of land containing 65 acres; that on January 17, 1909, they executed a mortgage or trust deed thereon to secure a loan for $2,500, evidenced by a note for said amount, payable to the order of themselves at the office of said Bice, bearing interest at the rate of 6 per cent, per annum, the principal payable January 1,1914, and the interest payable semiannually, secured by 10 interest notes; that on December 1, 1912, complainants contracted to sell 16 acres of said land to one William Harpster and on December 9, 1912, executed and" delivered to said Harpster a warranty deed therefor; that the price agreed upon for said conveyance was $2,000, which Harpster agreed to pay to King by paying the same on the aforesaid mortgage or trust deed, thus reducing said mortgage indebtedness to $500; that Harpster filed said deed for record and went into possession of the lands and has remained in possession thereof from thence hitherto, claiming to own the same by virtue of said conveyance; that Harpster attempted to comply with his undertaking in regard to paying the said $2,000, and went to the office of said Bice and paid to the latter the said sum of $2,000, on or about December 17, 1912, and thereupon Bice executed and delivered to Harpster a partial release of said trust deed, the said release purporting to release the said 26 acres of land from the lien of said trust deed and purporting to leave said trust deed on the remaining 39 acres, owned by King, which said partial release was filed for record; that on December 9, 1912, complainants went to Bice and arranged to borrow an additional $400 from him and arranged also to pay the remaining $500 of the $2,500 note and mortgage, on which said Harpster had claimed he had paid $2,000 and thus release in full said $2,500 mortgage or trust deed; that Bice consented to make said loan of $400 and release in full said $2,500 mortgage or trust deed so as to remove the lien thereof from the 39 acres owned by King, being the remainder of his land which had not been conveyed to said Harpster; and to accomplish this they arranged with Bice to execute a new note and mortgage for $900, securing the same by giving a new mortgage on said 39 acres of land, and that they executed said note for $900 and the mortgage securing the same; that $500 of the consideration mentioned in said $900 mortgage and note represents the remaining $500 of the consideration in said $2,500 mortgage, so that said two mortgages, so far as $500 of the consideration in each is concerned, represent one and the same debt; that when they executed the $900 note and mortgage, Bice promised and agreed to release in full said $2,500 mortgage and trust deed and they, relying on said promise, gave said second mortgage as aforesaid; that thereafter they never received any notice to pay any interest on the $2,500 note and mortgage which they believed had been released and paid in full; that in the month of July, 1913, they learned that said $2,500 mortgage had not been released and that Bice was insolvent and did not have said $2,500 note and mortgage in his possession at the time complainants gave him said $900 note and mortgage, and that Bice had not released said $2,500 note and mortgage and was not the owner nor the agent of the owner nor in possession of said note or mortgage when Harpster paid him the said $2,000; that since the financial failure of Bice they have been informed that the State National Bank of Mattoon has in its possession said $2,500 note and mortgage, and claims to be an innocent purchaser thereof for value prior to the time Harpster paid said $2,000 thereon, and said bank claims the full lien of said $2,500 note and mortgage; and said bank also claims to be the owner and holder of said $900 note and mortgage and claims the benefit of the full amount of said $900 lien thereunder against said 39 acres of land, thus claiming a double lien for the same debt; that one Miller claims to have some interest in said $2,500 trust deed and note; that said bank claims that Bice had no authority to make said partial release of said $2,500 mortgage or trust deed and that the same is null and void; that Bice has been adjudged an involuntary bankrupt, and one Powell has been appointed trustee of his estate; that if it be a fact that Bice was without authority to execute said partial release and receive said $2,000 from Harpster, then complainant King has never received the purchase price for the 26 acres of land conveyed to Harpster, and that the latter owes him $2,000, the price therefor with lawful interest thereon from the date of said deed; that said Harpster has since incumbered said 26 acres of land by placing a mortgage thereon to secure the sum of $2,480; that the court should find that the $2,500 note and mortgage or trust deed is paid in full and that the same is a cloud upon the title of complainants to said 39 acres of land, and the same should be released, canceled and removed; that said tract of land should be cleared of all incumbrances except the $900 mortgage aforesaid, and that all of the other pretended liens and claims of the defendant are but clouds upon the title of complainants; that all of these matters and controversies were occasioned by the payment by said Harpster of the purchase price of the land so purchased by him from complainants, to the said Bice as aforesaid, and that all the matters alleged constitute one and the same subject-matter, being occasioned as aforesaid; that both mortgages are long past due and the bank is threatening to foreclose them, thus incurring large sums in costs against complainants by such foreclosure suit; that said Harpster has refused to obtain a credit of $2,000 on said $2,500 note and mortgage or trust deed from the bank, from Miller, from Bice,, or his trustee in bankruptcy, or from any other source, although he agreed to pay said $2,000 on said mortgage at the time of said transaction above named; that not having paid said $2,000 as aforesaid and complainant King not having received any credit for said $2,000, it became and was the duty of said Harpster to pay complainant King said $2,000 in cash in lieu of paying the same on said mortgage indebtedness, which he has failed to do, but the said Harpster refuses to pay to complainant King said $2,000 or any other sum and has refused to remove any of said clouds or liens or reduce said mortgage indebtedness on complainant’s land; that he permits said $2,500 trust deed or mortgage to remain a lien thereon for its full face value contrary to his agreement with complainant, who is entirely without remedy in the premises to compel the said Harpster to secure credit for said $2,000 on said $2,500 mortgage or trust deed; that the acts of said Harpster and of the other defendants have resulted in a cloud being left on complainant’s land for $2,500, the same being the trust deed or mortgage for said amount, and complainants will necessarily be involved in a large number of suits and litigations and in a multiplicity of suits on account of said transactions, as well as suffer irreparable loss and injury, unless they are permitted to maintain this bill against all the parties connected with said transaction so as to get the rights of all the parties therein adjusted, so far as pertains to the title to said 39 acres of land.

The demurrer was sustained to the bill on the ground that it was multifarious. It is apparent upon the face of the bill that it involves two complete and different transactions: First, the sale of the 26 acres to Harpster for the sum of $2,000, which the latter agreed to pay upon the indebtedness evidenced by the trust deed and note for $2,500; second, the transaction between the complainants and Bice wherein the new loan for $900 and the mortgage securing the same were involved. Harpster had nothing to do with this last transaction between complainants and Bice. He is not concerned in it in any way. His only obligation to complainants is to pay the $2,000 for the purchase price of the land purchased by him from them in accordance with his agreement. Complainants have a distinct remedy against Harpster and a distinct remedy against .Bice. If the allegations in the bill are true that Harpster, in consideration for the conveyance to him of the tract of land mentioned, agreed to pay the purchase price of $2,000 therefor on the indebtedness of complainants, evidenced by the $2,500 note and trust deed, and has failed to do so, so that complainants have failed to receive credit for the same on said indebtedness, then the remedy of complainants against Harpster is by a bill to foreclose their vendor’s lien on the land conveyed for the purchase price thereof. Koch v. Roth, 150 Ill. 212; Croft v. Perkins, 174 Ill. 627; Blomstrom v. Dux, 175 Ill. 435; Lewis v. Shearer, 189 Ill. 184. By their subsequent transaction with Bice they stand to lose $500 by being compelled to pay that sum twice, that amount of the same indebtedness being embraced in both the $2,500 note and trust deed and the $900 note and mortgage. Their remedy against Bice is by an appropriate action based upon the fraud alleged.

The bill cannot be sustained upon the theory that it is brought to remove a cloud from the title to the land nor upon the theory that it is necessary to save a multiplicity of suits. The grievances complained of are too remote and distinct from each other. They are independent and would require separate decrees and separate defenses. First Nat. Bank of Lincoln v. Starkey, 268 Ill. 22.

The bill is multifarious and subject to demurrer on that ground, and the decree of the Circuit Court must therefore be affirmed.

Affirmed.


text:
    In the Matter of the Estate of Charles Morefield, Deceased. Nellie Hilton and Stella Porter, Appellees, v. John Morefield, Administrator, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBbide, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Final report by John Morefield, as administrator with the will annexed of the estate of Charles More-field, deceased, and objections to the report filed by Nellie Hilton and Stella Porter, two of the decedent’s heirs, objectors, that the administrator had not charged himself in the report with the amount of a certain note executed by him as principal and the decedent as surety which had been paid by his mother, since deceased, as executrix of the will of the decedent. From an order sustaining the objections on appeal from an order of the County Court sustaining them, the administrator appeals.
    Arthur Fitzpatrick, for appellant.
    E. E. Dowell, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

Appeal and error, § 1751 —when judgment affirmed for insufficiency of record. "Where on objection to the final report of an administrator with the will annexed that he had not charged himself in the report with the amount of a note on which he was principal and the deceased was surety, and which the executrix of the will of the deceased had paid, the record contained no evidence of the will or its contents and did not purport to contain all the evidence, held that the judgment sustaining the objection should be affirmed.


text:
    Angelo Alpe, Appellee, v. Superior Coal Company, Appellant.
    1. Evidence, § 399*—when medical testimony does not invade province of jury. In an action to recover damages for personal injuries, where there was no conflict in the evidence and no contention made but that plaintiff’s injury was incurred at the time and in the manner alleged, and the only question was as to the relation between the injury and the subsequent condition of the injured member, answers to questions asked of medical witnesses as to the cause of such condition held proper, and not an invasion of the province of the jury.
    2. Evidence, § 444*—when medical testimony as to subjective symptoms is incompetent. Evidence of subjective symptoms given by a physician who has not treated the injured person, but has made an examination to enable him to testify on a trial as to his condition, is incompetent.
    3. Appeal and error, § 1489*—when admission of incompetent evidence is harmless error. Where a physician was allowed, over objection, to testify to subjective symptoms from an examination by him of an injured person whom he had not treated for the purpose of testifying on a trial, and there was no contention or proof to the contrary of such testimony, held that the evidence, while incompetent, was but cumulative and not of sufficient importance to justify a reversal.
    4. Appeal and error, § 1709*—necessity of making reference in argument to place where errors appear. Unless reference is made in argument to the abstract or record where alleged errors appear, they will not be considered.
    5. Damages—when evidence as to possibility of cure of injury is speculative. Evidence by a physician, in response to a question what, if any, additional treatment could -be given with a view to relief and cure of an alleged injury, that amputation might or might not relieve it, field to be purely speculative and should have been stricken out on motion.
    6. Damages, § 244

      —when admission of speculative testimony as to possibility of cure of injury is harmless error. The speculative testimony of a physician, as to what could relieve or cure an alleged injury, that amputation might or might not, held not prejudicial to defendant, in an action to recover damages for such injury, where another physician testified without objection, in effect, that amputation was the only relief for the injury.
    7. Damages, § 122*—when verdict for personal injuries is not excessive. Verdict for $7,500 held not excessive, where plaintiff was 27 years old, strong and healthy prior to the injury, received $2.62
    a day as wages, was in a hospital for several months on account of the injury, and as a result thereof had lost the total use of his right leg and had suffered a great deal of pain.
    8. Damages, § 244*—when failure to give proper instructions on is not reversible error. Instructions, in an action to recover damages for personal injuries, that the jury should fix the damages from all the facts and circumstances in evidence, should properly confine the facts and circumstances to the evidence in regard to the elements of damage, but failure to do so is not prejudicial where the damages awarded are not excessive.
    Appeal from the Circuit Court of Macoupin county; the Hon. Fbaiík W. Btjbtojsf, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 11, 1917.
    Edward C. Knotts, for appellant.
    J. H. Murphy and Thomas Rinaker, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

The declaration in this case consists of a single count wherein it is charged that appellant, on November 5, 1915, and prior thereto, was a corporation and owned and operated a coal mine in Macoupin county and had prior to that time elected not to be bound by the Illinois Workmen’s Compensation Act; that appellee on said date -was employed as a company man, working on the night shift in said mine under the direction of a foreman named Kelly, who had charge of said shift; that Kelly was operating, on the east side of the bottom of the shaft, a certain motor to which was attached an empty car; that he directed appellee to go between the motor and car for the purpose of uncoupling the same; that appellee, pursuant to said order, went between the motor and car and, while attempting to uncouple the same, Kelly negligently caused the motor to run against the car attached to it, by reason whereof the right" leg of appellee was caught between the car and motor, crushing and bruising the same and injuring the nerve in said leg, etc. The only plea was that of the general issue. Appellee recovered a verdict of $7,500, and to reverse the judgment rendered thereon this appeal is prosecuted.

On the day of the accident appellee entered the mine about 4:30 o ’clock in the afternoon and was ordered by Kelly, the night boss, to accompany him on a motor attached to an empty car, which latter was being taken to a place in the mine where there was a “bad order” car, for the purpose of unloading the “bad order” car into the empty car attached to the motor. When the motor with the empty car arrived at the place where the “bad order” car was, Kelly directed appellee to uncouple the motor "from the empty car and appellee stepped between the empty car and the motor and, while attempting to uncouple, the same, Kelly backed the motor so that appellee’s leg was caught between it and the empty car, resulting in the injury complained of. Appellee’s statement of the facts surrounding the accident is more or less corroborated by two other witnesses. Kelly was the only witness who testified on behalf of appellant upon this question, and whether he was guilty of negligence in backing the motor was a question of fact for the jury to determine. As appellant had elected not to come under the Workmen’s Compensation Act, the question of appellee’s contributory negligence is eliminated.

Immediately after the injury, appellee was taken to his boarding house and was treated by Doctor Benner, who found some bruises and contusions upon the leg. Doctor Benner continued to treat appellee for a period of 9 days, at which time he could get about on crutches. Doctor Benner did not consider the injury a serious one and testified that, when he stopped treating appellee, he expected he would be entirely recovered in 2 or 3 weeks. Eleven days after the last visit of Doctor Benner, appellee entered St. Francis hospital in Litchfield and remained . there under the care of Doctor Colt for 3 months and 12 days. When he left, he was able to walk on crutches, and Doctor Colt testified that at that time he considered that he had practically recovered. After leaving the hospital, the entire right leg began to shake and jerk, which condition soon became very pronounced and incessant. In March, 1916, he consulted Dr. Van Wormer, who subsequently cut into the limb below the knee and stretched the nerve, which relieved the twitching and jerking for a short time, but the condition soon returned and became worse and has remained so since that time. The evidence for appellee tends to show that the jerking and shaking condition of the leg is caused by a lesion in the anterior tibia nerve at the point of the injury.

The error assigned, most strenuously argued in this court, is that the trial court permitted certain questions to be asked of and answered by medical witnesses as experts, which it is insisted were improper and prejudicial to appellant, for the reason that these witnesses were allowed to testify to ultimate facts in the case, thus invading the province .of the jury. Doctor Van Wormer, in answer to a question as to what is the cause of the condition that appellee is now in, to which a general objection was made, answered: “I would say it was due to the injury. ’ ’ In answer to a hypothetical question, to which a general objection was made, he stated: “I would attribute it to traumatic injury.” When asked what traumatic injury he meant, he answered: “To the injury that he received at the time of the accident.” And again he was permitted to testify in answer to substantially the same question: “I would attribute it to the injury. To the accident. To the same injury referred to in the former question.” Dr. Lockwood was asked to state what was the cause of the jerking and pain from his examination of the limb and from what he observed after that time, and answered, over a general objection which was overruled, that it was due to irritation of the nerve—injury would produce irritation of the nerve. And again in answer to a hypothetical question, stated: “I think it due to an injury to the nerve.” Doctor Denby, in answer to a similar hypothetical question, stated that in his opinion the twitching and pain which now exist are due to the injury.

There is no conflict in the evidence and there is no contention made but that appellee’s leg was injured at the time of the accident, and that the injury was caused by being caught and squeezed between the bumpers of the 2 cars. None of the questions to which the alleged objectionable answers were given related to the cause of the injury, but to the relation between the injury and the subsequent condition of the leg. In the case of City of Chicago v. Didier, 227 Ill. 571, it is stated in the opinion: “There is some apparent confusion in the authorities on the question as to whether, in such cases as this, a medical expert may be asked his opinion as to whether the physical conditions of the injured party are the result of the injuries complained of. Where there is a conflict in the evidence as to whether the plaintiff was injured in the manner claimed, it is not competent for witnesses to give their opinion on that subject; but where there is no dispute as to the manner of the injury, and the question is as to whether certain physical conditions were caused by the injury complained of, and the determination of the question involves a special skill or trade, or a knowledge of science that does not come within the experience of laymen possessing the education or knowledge common to those moving in the ordinary walks and engaged in the ordinary occupations of life, then persons possessing the special knowledge, skill or science may give their opinions on the subject. Appellant contends that the inquiry should be as to whether the injury might have produced the physical conditions, and not whether it did produce them. Expressions will be found in some cases tending to support that view, but the weight of authority in this State, as well as in other jurisdictions, does not support appellant’s contention.” Many of the prior decisions in this State and of other jurisdictions are reviewed, and the conclusion above quoted has been followed in numerous subsequent cases. Chicago Union Traction Co. v. Roberts, 229 Ill. 481; Fuhry v. Chicago City Ry. Co., 239 Ill. 548; Schlauder v. Chicago & S. Traction Co., 253 Ill. 154; Kelleher v. Chicago City Ry. Co., 256 Ill. 454; Wheeler v. Chicago & W. I. R. Co., 267 Ill. 306; Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71; Heineke v. Chicago Rys. Co., 279 Ill. 210. In the case of Fuhry v. Chicago City Ry. Co., supra, appellee was injured by a collision between 2 cars on appellant’s street railway, on one of which she was riding as a passenger. Doctor McDonald, a witness in that case, was asked this question: “To what do you attribute the condition of nervous hysteria that this woman is suffering from, in view of your treatment and what you have learned of her case? To what physical condition do you attribute it?” He answered, over objection, as follows :

“Due to the injury that she received in her head and the concussion and nervous shock at that time.” The court in commenting upon this testimony said: “It is insisted that while it was competent for the witness to have expressed the opinion that the collision in question might or could have produced the condition he found, it was not competent for him to state that it did do so, the determination of that question being the province of the jury. The question was put to the witness as an expert. It is admitted that appellee had received injuries in the collision. The witness had described them. He knew and had described her subsequent physical condition. The question did not relate to the cause'of her injuries. It concerned the relation between her injuries and her subsequent condition. Its object was to obtain the witness’ opinion as to whether the condition could, would or did result from the injuries. The question whether it did so result was for the jury to determine, but, being one not within the knowledge of men of ordinary experience, the opinions of the physicians having knowledge of that subject were proper to be considered and did not invade the province of the jury. It is immaterial whether the witness testified that the injury might or could cause the condition or that it did cause it.” It is apparent that under the facts as they appear in the case at bar it was not error to admit the evidence complained of.

Doctor Denby stated that, objectively, he could not determine the amount of pain appellee was suffering, but from his manipulations he determined that the right leg, as compared with the other, was the more sensitive but that he did not come to this conclusion independent of his actions. A motion was then made by appellant to have the answer excluded, which was overruled. Evidence of subjective symptoms, given by a physician who has not treated the injured person but has made an examination to enable him to testify on a trial as to his condition, is incompetent. Greinke v. Chicago City Ry. Co., 234 Ill. 564; Chicago & E. I. R. Co. v. Donworth,, 203 Ill. 192. But in this case there neither is nor was any contention or proof that the condition of the right leg did not canse appellee pain and was more sensitive than the other. This evidence, while incompetent, was but cumulative and not of sufficient importance to justify a reversal of the judgment. Fuhry v. Chicago City Ry. Co., supra; Greinke v. Chicago City Ry. Co., supra; Casey v. Chicago City Ry. Co., 237 Ill. 140.

It is urged that it was error for the court to permit Doctor Denby to a question put to him as to.what, if any, additional treatment could be given with a view to relief and cure of the alleged injury, to answer, “Amputation of the leg might or might not relieve it.” No reference is made in the argument to the page of the abstract or record where this testimony may be found, and as we have repeatedly held that unless reference is made to the abstract or record where alleged errors appear, they would not be considered. This evidence was purely speculative and should have been stricken out on motion. However, appellant could not have been prejudiced thereby for the reason that Doctor ,Van Wormer, both on direct and cross-examination, testified without objection that the only thing that could be done to relieve the condition of the leg was to sever the nerve and that would cause the loss of the use of the limb, which in turn would necessitate its amputation, and appellant makes use of this testimony of Doctor VanWormer to support the argument that it was the duty of appellee to have his leg amputated and thus reduce the damages. Counsel for appellant in his argument uses the following language: “Taking the testimony of appellee’s witness, Doctor W. W. Van former, his attending physician, as to the future cure or relief, all that is required to cure the twitching is to amputate the limb, either above or below the knee. That being true, it was the duty of appellee to have the limb amputated and effect a cure. But appellee has not seen fit to have this done, evidently preferring to appear before the jury with the leg twitching, in the hope of arousing sympathy and thereby increasing the amount of the damages, if any were awarded. ’ ’ It thus clearly appears that the testimony of Doctor Denby complained of could not have had a tendency to enhance the damages in the eyes of the jury, and in no other way could it have been harmful to appellant.

Appellee was a young man, 27 years of age, weighed about 175 pounds when he was injured and before which time he had always been strong and healthy. He worked at the mine as a company man and received $2.62 a day. The evidence tends to show that he has lost the total use of his right leg and he has since the accident suffered a great deal of pain. Larger verdicts for similar injuries have been sustained, and under the circumstances as they appear, including the time of employment which appellee has lost, we are of the opinion that the damages are not excessive. Elgin, J. & E. Ry. Co. v. Raymond, 148 Ill. 241; Chicago & G. T. Ry. Co. v. Spurney, 197 Ill. 471; Chicago City Ry. Co. v. Wilcox, 138 Ill. 370; City of Chicago v. Loebel, 228 Ill. 52; Pierson v. Lyon & Healy, 243 Ill. 370; Wilcke v. Henrotin, 241 Ill. 169; Biggs v. Peoria & P. U. Ry. Co., 182 Ill. App. 613; Cunningham v. Illinois Cent. R. Co., 179 Ill. App. 505.

Two instructions given for appellee are complained of as being erroneous. They are as follows:

(3) “The court instructs the jury that it is not necessary or proper for the plaintiff in this case to produce witnesses to testify as to the amount of damages he should recover from the defendant, but that, if the jury shall find a verdict for the plaintiff, then it is the duty of the jury to fix the amount he shall recover, from all the facts and circumstances in evidence.”

(4) “The court instructs the jury that if you shall find a verdict in this case in favor of the plaintiff, then it becomes your duty to fix by your verdict the amount of damages the plaintiff shall recover.

“And the court further instructs you that such damages should be an amount sufficient under the evidence to compensate the plaintiff for the injury or injuries, if any, which the evidence shows he has sustained. And in fixing such amount you have the right and should take into account so far as may be shown by the evidence, any loss of time he sustained and any diminished capacity hereafter for labor resulting from the neglect of the defendant company alleged in the declaration, and any pain and sufferings he may have undergone or may hereafter undergo by reason of such injury or injuries, if any, and the permanence of such injury, if any permanent injury is shown by the evidence, and from all the facts and circumstances in evidence you should fix the amount of damages at such sum as will reasonably compensate the plaintiff for such injury or injuries, .if any, he may be shown to have sustained.”

The criticism of these instructions is that they permit the jury to fix the damages from all the facts and circumstances in evidence without any reference or limitation to the evidence bearing upon the question of the damages sustained. They would have been more accurate if they had confined the facts and circumstances in evidence to the evidence in regard to the elements of damages. But it could only have been shown that they had been prejudicial to appellant if the verdict had awarded excessive damages. The verdict not being excessive, appellant was not prejudiced. Similar instructions have been approved. In the case of Illinois Cent. R. Co. v. Cole, 165 Ill. 334, an instruction concludes as follows: “And you should allow to him as damages such sum as * * * from all the facts and circumstances in evidence, will be a fair and just compensation to him for the injuries so sustained. ’ ’ A similar instruction was sustained in West Chicago St. R. Co. v. Johnson, 180 Ill. 285.

There is no reversible error in the record and the judgment will be affirmed.

Affirmed,


author: Mr. Justice Thompson

text:
    Robert A. Pritchard, Trustee, et al., Appellees, v. Arthur W. Fruit et al., Appellants.
    1. Assignments fob benefit of cbeditobs—when creditor selling property of debtor on execution loses rights under trust deed. Where a debtor assigned his property to a trustee for the benefit of all his creditors, one of whom, prior to the assignment, instituted an attachment suit against certain of the debtor’s real estate which he prosecuted to judgment, and sale on execution issued on the judgment was had, and a deed was issued, held that the sale under the attachment not only extinguished the judgment but at the same time relinquished all rights the creditor might have had under the trust deed, as all such rights were for payment of such creditor’s debt and same no longer existed after the sale and deed in the attachment proceeding.
    2. Mobtgages—when decree for sale of interest of principal debtor before resorting to interest of sureties is proper. A decree directing the sale of the interest of the principal debtor before resorting to the interest of his sureties, held not erroneous, in a suit to foreclose a mortgage given to secure notes signed by the holder of a life estate in the mortgaged property as principal and by the owners of the fee as sureties.
    3. Execution, § 196

      —what rights are acquired by judgment creditor purchasing equity of redemption. A plaintiff in execution purchasing thereunder property which is subject to a prior mortgage obtains only the title of the mortgagor and must redeem from such mortgage in order to render his equity of redemption available.
    4. Execution, § 193*—when grantee of land sold under is not entitled to rents and profits. Under Rev. St. 1916, ch. 80, par. 1, sec. 4 (J. & A. T| 7039), relating to the recovery of rent when land has been sold under a judgment, and possession is refused, after demand, until demand in writing by the grantee in a sheriff’s deed of a life estate sold on execution is made, the grantee is not entitled to receive the rents and profits arising from the estate.
    Appeal from the Circuit Court of DeWitt county; the Hon. Geobge A. Sentel, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    W. F. Gray, for appellant George Caruthers.

      L. O. Williams, George J. Smith, Leonard W. Ingham and Herrick & Herrick, for appellees.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Arthur W. Fruit, one of the defendants, herein, in 1907 became the owner of a life estate in about 500 acres of land by devise from his father, Edmond W. •Fruit, and the children of said Arthur W. Fruit were the owners of the fee in said premises.

Subsequent to 1907, Arthur W. Fruit became involved financially and on November 22, 1909, he borrowed $25,000, to be repaid November 22, 1914, and secured the payment of the same by giving a mortgage, signed by himself and five of his seven children, covering their interest in the said 500 acres of land, to Bobert A. Pritchard, trustee. The principal sum of $25,000 was evidenced by 27 promissory notes which were transferred to and are now owned by parties who are complainants in this suit.

On July 12, 1911, Arthur W. Fruit borrowed an additional sum of $3,250, due one day after date, and secured the payment of this sum by a mortgage on said premises, signed by himself and all the children who signed the first mortgage and also Nellie U. Fruit, who had become of age since the giving of the first mortgage. This note and mortgage were given to William J. Marvel and by him assigned to Eliza YanOrdstrand, one of the complainants.

On October 23, 1911, George Cáruthers, one of the parties to this suit, started an attachment suit against said Arthur W. Fruit and levied upon the lands in question herein, his levy not being limited to the life estate of Arthur W. Fruit. That suit was begun to recover the amount of a judgment rendered in the State of Mississippi for a deficiency found to be due on a strict foreclosure of a real estate purchase money mortgage, on which purchase $2,500 had been paid.

On November 16, 1911, Arthur W. Fruit and the children who had joined in the mortgages above mentioned executed a deed of trust for said 500 acres of land to George K. Ingham, the purposes and conditions of the trust being that said Ingham should take charge of the lands, collect the rents and profits, pay the current expenses and repairs on the land and apply the balance on the indebtedness of said Arthur W. Fruit, and, when such indebtedness was paid, then the trust was to be dissolved; the indebtedness referred to in said trust deed included the indebtedness to said Gorge Caruthers and provided for the payment of the same, together with the other indebtedness of said Arthur W. Fruit.

On November 22, 1911, Ingham, the trustee, borrowed $3,000, and on Aiigust 31, 1912, he borrowed $1,000, which sums were used in carrying out the terms of the trust deed.

In May, 1914, George K. Ingham died and Walter H. Mills was appointed his successor in trust, and the executrix of Ingham paid over to Ms successor in trust all the proceeds of said trust property on hand at the date of the death of said Ingham, leaving the notes for said loans made by Mm unpaid.

On June 24, 1913, the said George Caruthers recovered a judgment in the attachment sMt in the Circuit Court of DeWitt county against Arthur W. Fruit for $6,235.46, and an order for the sale of the property attached, and on August 2, 1913, the interest of said Arthur W. Fruit in the lands in question was sold to said Caruthers at a sheriff’s sale on an execution issued on said judgment for the amount of the debt, interest and costs and no redemption was made from said sale.

On February 20,1916, a sheriff’s deed was demanded and delivered to said Caruthers for said premises and it was filed for record by said Caruthers in the recorder’s office of said county.

On March 10, 1915, 4 months after the first mortgage was due and about 4 years after the second mortgage was due, bills were filed in the Circuit Court of DeWitt county to foreclose the mortgages herein-before described.

The children of Fruit filed answers to the original bills of complaint and filed cross-bills setting forth that they signed the notes and mortgages as security and not in fact as principals, and asked the court to compel the complainants in the original bill to exhaust the life estate of their principal, Arthur W. Fruit, in said lands before appellants should be compelled to pay any of the indebtedness. Caruthers answered the original bills and filed his cross-bill, asking the court to compel the complainants in the original bill to collect their indebtedness out of the estate of the children of Arthur W. Fruit, claiming that he held the life estate by virtue of his having procured a judgment against Arthur W. Fruit in the attachment proceedings, sold the land on execution and secured a sheriff’s deed therefor.

The two foreclosure suits above referred to were consolidated by an order of court and a decree entered in the consolidated cause on June 16, 1916, which decree found, among other things, that the judgment of George Caruthers was merged in said sheriff’s deed to said George Caruthers and thereby the judgment has become and is fully satisfied, and also found that the fee simple title of said premises could not be sold to pay said judgment in favor of said George Caruthers, and that said judgment could only be paid from the rentals derived from the aforesaid lands or by money borrowed thereon by the trustee or his successor by the terms and provisions of said trust deed.

The decree further ordered that the said Walter H. Mills, as trustee, pay over to the said George Caruthers the amount of all moneys remaining in his hands after paying to Alice A. Ingham, as executrix, the amount borrowed by George K. Ingham, as trustee, being the sum of $4,000 and interest, out of the sum now in his hands as trustee, after holding back a sufficient sum to pay all obligations and liabilities now existing against said Walter H. Mills as trustee, and upon said payment being made to said George Caruthers that he deliver to said trustee the receipt of him, the said i George Caruthers, for the amount so paid to him by the said Walter H. Mills, as such trustee; the decree further reserved for the future consideration and determination of said court all questions as to the right and possession of the mortgaged premises and the rents, income and profits arising therefrom during the redemption period in the event said premises should he sold under said decree.

Caruthers appeals from this decree and contends that the deed of trust given by Fruit and his children to Ingham and to Walter H. Mills as trustees should have been enforced for his benefit. He repudiated the provisions of the trust deed by refusing to accept its provisions after it was made, and by proceeding to attempt the collection of his judgment by attachment and his action in causing to be sold, under the execution in the attachment suit, the life estate of Arthur W. Fruit and in bidding therefor his entire judgment, interest and costs. The sale under the attachment not only extinguished his judgment, but at the same time relinquished all rights he might have had under the deed of trust aforesaid, because all such rights were for the payment of what Fruit owed Caruthers when the deed of trust was executed, and which debt no. longer existed after the sale and deed in the attachment proceeding.

It is further contended by Caruthers that the fee in the mortgaged premises, should be sold first in order to satisfy the mortgage indebtedness before resorting to the life estate of Arthur W. Fruit therein. The indebtedness secured by the mortgages was the indebtedness of Fruit, and his children signed the notes and mortgages as sureties only. There is no error in the decree directing the sale of the interest of the principal debtor before resorting to the interest of the sureties.

The title which Caruthers secured by the deed issued to him in the attachment suit was the title to the life interest of Arthur W. Fruit in the premises above mentioned, subject to the two mortgages hereinbefore described. These mortgages were on record against the lands attached when the levy was made. By purchasing the land at the execution sale for the full amount of his judgment, Caruthers exchanged his entire claim for the equity of Arthur W. Fruit in the lands sold. “Such a purchaser is, by the sale, substituted to all the rights of the mortgagor in the premises, but to nothing more. The sale is of the equity of redemption, and the purchaser takes it with the burden, and he is supposed to fix the price he pays at the sale, with reference to the incumbrance ón the property, and subject to which he purchases. He no doubt deducts from the value of the property the amount of the mortgage debt, and then regulates his bid with reference to the value abové the incumbrance. * * * On such a sale, the purchaser has notice of the incumbrance, and expects to get back his money on a redemption, or to acquire the equity of redemption, and, by discharging the lien, to become the owner of the fee. * * * The principal of caveat emptor applies in such sales, and the purchaser must be bound by his acts unless misled by fraud. And, having purchased under the' execution, the obligation was upon plaintiffs in execution, if they desired to render their equity of redemption available, to redeem from the mortgage.” Finley v. Thayer, 42 Ill. 350; Vanscoyoc v. Kimler, 77 Ill. 151; Roberts v. Hughes, 81 Ill. 131. There was no error in the decree ordering that the purchase by Caruthers was subject to the two mortgages sought to be foreclosed and in refusing to order the title to the fee, which was in the children of Arthur W. Fruit, who executed said mortgages as sureties only for their father, to be sold before the sale of the life estate of Arthur W. Fruit.

Appellees, under an assignment of cross errors, insist that the court erred in ordering the trustee to pay all the amount in' his hands over the amount borrowed by Ingham, trustee, and interest thereon to Caruthers." The fund in the hands of the trustee Mills does not appear to have been made up of rents and profits arising out of the life estate of said Arthur W. Fruit subsequent to the time the sheriff’s deed was issued to Caruthers in the attachment proceeding. After he received his sheriff’s deed in the attachment suit, he was entitled to possession of said premises under his deed and entitled to the rents and profits therefrom, but not until after demand in writing in accordance with the statute. Hurd’s Rev. St. 1916, ch. 80, par. 1, sec. 4 (J. & A. 7,039). Therefore, said decree, in so far as the same provides for the payment of any sum to Caruthers out of the fund in the hands of the trustee, should be modified for the reason that until after demand in writing has been made by Caruthers, subsequent to the issuing of the sheriff’s deed, he is not entitled to receive the rents and profits arising out of the life estate of Arthur W. Fruit, and it does not appear from this record that such demand has been made.

He is not entitled to the benefit of the provision made for him in the trust deed for the reason that he has elected to pursue his remedy in attachment and has fully satisfied his claim, and thereby relinquished any rights he may have had under said deed of trust.

There being no proof of any such demand, the decree, in so far as it directs the payment of any sum, out of the fund in the hands of the trustee, to Caruthers, will be reversed and the cause remanded.

Reversed and remanded.


text:
    Thomas B. Jack, Appellee, v. A. L. McConkey et al., Ryland B. Shaw, Appellant. Ryland B. Shaw, Appellant, v. Thomas B. Jack et al., Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Macon county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1917. Certiorari dismissed by Supreme Court.
    Affirmed.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    Statement of the Case.
    Bill of interpleader by Thomas B. Jack, complainant, against A. L. McConkey, T. E. McConkey and Byland B. Shaw, defendants, and cross-bill by Byland B. Shaw, cross complainant, against Thomas B. Jack, A. L. Mc-Conkey and T. E. McConkey, cross defendants, as to a certain contract between A. L. McConkey and Byland B. Shaw for an exchange of certain lands on the part of the former for certain master’s certificates of purchase and other property on the part of the latter, the certificates being deposited with complainant pending acceptance by shaw of an abstract of title to the lands offered in exchange, T. E. McConkey being made a party defendant to the bill as claiming ownership of the certificates. From a decree enforcing the contract in favor of Shaw and against A. L. McConkey and ordering the latter to pay to the former $320.66 as damages on account of certain misrepresentations made by McConkey to Shaw and ordering enforcement of such order of payment by sale of the certificates, and payment by each of one-half of the costs, defendant and cross complainant, Shaw, appeals.
    The lands involved were 320 acres in Adams county owned by T. E. McConkey, for whom A. L. McConkey acted as agent and 200 acres in Marion county owned by one Titus Springer; also a certain automobile, a domino factory and the certificates of purchase owned by Shaw of certain lots in Decatur, all of which were to be exchanged for the McConkey lands. Deeds for the lands and the automobile and domino factory were exchanged, and the certificates of purchase were held by complainant to await Shaw’s acceptance of the abstract of the McConkey lands. Across these lands was a 200-foot strip for purposes of a levee, outside of which were several acres subject to overflow, represented by McConkey to Shaw on inspection to be 3, but in fact much more. The decree found the value of the excess land, if same had been as represented, to be $244.16 more than their value as existing, and same, with interest and rent, aggregating $320.66, was decreed as damages. Complainant disclaimed interest, and by agreement was appointed receiver of the property described in the certificates of purchase.
    Abstract of the Decision.
    1. Vendor and purchaser, § 39

      —when vendor must point out boundaries correctly. When a vendor undertakes to point out the boundaries of 'land to a "purchaser he is obliged to point them out correctly.
    2. Vendor and purchaser, § 42*—when purchaser entitled to damages for misrepresentations by vendor. A purchaser relying upon representations of his vendor as to the boundaries of the land purchased is entitled to damages for misrepresentations by the vendor.
    3. Exchange of property, § 8*—what is measure of damages where exchanged property is not as represented. The measure of damages where there is an exchange of property and the property is not as represented and the representation was relied upon is the difference between the actual value of the land and what would have been its value if it had been as represented.

      Hugh Crea, Hugh W. Housum and Fred Hamilton, for appellant.
    Herrick & Herrick and Redmon, Hogan & Redmon, for appellees.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

4. Vendor and purchaser, § 127 —when purchaser may not. complain that title is not merchantable. A party who has' accepted a conveyance of land 60 years subsequently to the making of certain deeds claimed to be imperfect because not joined in by the wives of the grantors, and has taken possession of the land, may not be heard to complain that he has not a merchantable title and must rely upon the covenants of his deed.

5. Costs, § 4*—when half of costs properly taxed against cross complainant. Where a cross complainant failed in several of his contentions on which much evidence was taken, held on decree in his favor generally, that there was no error in the court’s ruling that he should pay one-half of the costs, as, in chancery, costs are in the judicial discretion of the court.

6. Appeal and error, § 1712*—necessity of pointing out and arguing errors. The Appellate Court should not search the record for errors not pointed out or argued by counsel.