author: Mb. Justice Thompson

text:
    Martha B. Mobley, Appellant, v. William Mobley, Appellee.
    1. Assignment—when not error to credit assignee to pay debts with payments. Where a husband and wife by agreement assign all of their property with power to the assignee to sell and pay certain enumerated claims and to turn over the balance to the wife, and it is provided that the assignee may take necessary steps to carry out the true spirit of the agreement and that the claims are subject to slight correction in amounts, it is not error to credit the assignee with a payment of $210.26 more on the claims than the amount enumerated when such excess consists in costs on the judgments against the assignors or in claims being larger than inventoried, since possession of the property could not have been secured without paying the liens against it.
    2. Assignment—when credit for payment correctly allowed to assignee to pay debts. It is not error to credit a person to whom property is assigned with power to sell and to pay certain claims, with payment of a sum which was a lien on certain property where such payment was necessary to obtain possession thereof.
    3. Evidence—when oral statements made by parties after malting written contract competent to shoio separate contract. Where husband and wife by written contract assign all their property to be sold to pay certain enumerated debts and agree that the balance is to be paid to the wife and provide that the assignee may take necessary steps to carry out the true spirit of the agreement, evidence by the assignee that the parties stated that all debts should be paid and that there were some they couldn’t think of, and evidence by the clerk at the sale that the wife stated that the indebtedness of both was to be paid and that the assignee was to pay it, is competent to prove a separate oral contract as to matters not inconsistent with the incomplete written agreement.
    4. Assignment—when credit correctly allowed to assignee to pay debts. Where a husband and wife by a written agreement assign all their property and give power to pay enumerated debts and to pay the balance to the wife, it is not error to credit the assignee with $63.20 paid on an unenumerated debt of the husband, where the parties subsequently stated that all debts were to be paid and where the wife so informed the clerk at the auction sale.
    Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochean, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.

      E. B. Mitchell, for appellant.
    Ingham & Ingham, for appellee.
   Mb. Justice Thompson

delivered the opinion of the court. o

Martha B. Mobley brought this action in assumpsit against William Mobley. The declaration consists of the common counts. The pleas were the general issue and a plea of set off. The evidence shows that Martha B. Mobley and her husband, John Mobley, had been running a farm and were having litigation between themselves and with others. John Mobley on January 1, 1910, had begun a proceeding to have his wife adjudged insane. This had been dismissed. Martha B. Mobley had begun a suit for a divorce and had obtained an injunction tying up all her husband’s property. Five different creditors of John Mobley had obtained judgments in the Circuit Court against him, on which executions had been issued in January, 1910, and levied on his personal property. The holder of a chattel mortgage had taken possession of a team of horses under the mortgage. On February 9, 1910, John Mobley and Martha Mobley met in the office of Martha Mobley’s attorney and signed an agreement, in the nature of an assignment for the benefit of certain creditors therein named, by which they turned over all their property of every kind, including their credits, to William Mobley, a son, who was one of the judgment creditors, to convert the same into cash and pay certain enumerated claims amounting to $1,182.75, and to pay the balance remaining to Martha B. Mobley. The agreement contains a release of the property from the injunction and provides, “that William Mobley shall take any and all steps he may deem necessary to carry out the true spirit and intent of this contract.” William Mobley was present when the contract was executed, but it is not signed by him. William Mobley at once proceeded to carry ont the contract and had an auction sale of the property. The parties to this suit agree that William received from the sale and from the proceeds of some corn that had been delivered $2,023.53. Plaintiff, Martha B. Mobley, admits that William rightfully paid out of this sum $1,625.72, made up of $1,182.75, the amount of the claims as inventoried; $50.55 for baling hay, auctioneer, etc., and $391.42 on a note and claims against plaintiff and to her. This suit' is brought by her to recover the balance, $397.81. The defendant tendered to plaintiff the further sum of $85 and the costs to the time of making the tender. The case was heard before the court without a jury and judgment rendered for plaintiff for $92.05, from which the plaintiff appeals.

The evidence shows that on the claims listed at $1,182.75, the defendant actually paid $1,393.01. Plaintiff insists that the court erred in allowing to the defendant credit for the difference, $210.26. This difference is made up either of costs taxed in the various judgments against Mobley, on which executions had been issued and become liens against the property, or by the claims being larger than inventoried. In listing the debts in the agreement only the original® amounts of the indebtedness were mentioned. The contract states that the same is “subject to some slight correction in amounts,” and that defendant has full power to take all steps necessary to carry out the true spirit and intent of such contract. The defendant could not have got possession of the property without paying off the liens against it. The defendant was properly given credit for such difference.

The plaintiff also contends that the court erred in giving the defendant credit for $13.50 paid to William Parmer for the care of a horse that had been taken possession of by a constable under an execution; $16.80 paid to M. Marshall for the care of a mortgaged team and for $63.20 paid on a note against John Mobley not inventoried in the agreement. The $13.50 and the $16.80 were liens on the horses; they were claims that had to be paid to obtain possession of the horses and credit was properly given the defendant for such sums.

John Mobley testified that when the list of debts was made out he said he did not think of any more, and the plaintiff’s attorney said all debts would be paid. Defendant testifies that at the time the assignment of the property to defendant was made it was stated by the parties “that all the debts should be paid, that there was some debts they could not think of.” “They said I should pay them.” Ed Nichols, cashier of the Waynesville bank, who was the clerk at the auction sale, testified that on the day of the sale plaintiff said to him that Mobley’s and her indebtedness was to be paid out of the proceeds of the sale, that William Mobley was to pay off the indebtedness. This evidence was competent to prove a separate oral agreement as to any matter not inconsistent with the terms or legal effect of the written agreement where it appears the written agreement was incomplete. Fuchs & Lang Mfg. Co. v. Kittredge & Co., 242 Ill. 88. None of the statements said to have been made by plaintiff are denied by her. From her statements made after the making of the agreement there was no error in the allowance of credit for the payment of the note for $63.20. The payment was within the intent of the contract as it was construed by, and the directions given by the plaintiff. The court also allowed $2 paid by defendant for livery hire which was a proper credit. Plaintiff presented propositions of law and fact asking the court to hold that the items which have been enumerated should not be allowed; these the court refused. We find no error in the rulings of the court.

The judgment is affirmed.

iAffirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Daniel Martin and Edward Martin, Plaintiffs in Error.
    1. Criminal law—verdict. A verdict of guilty of assault and battery and a judgment thereon cannot be sustained on a count charging assault with a deadly weapon.
    2. Criminal law—conviction on single count. A verdict of guilty on the second count of an information containing three counts, the second and third of which charge the same offense, is equivalent to an acquittal as to the others.
    3. Assault with deadly weapon—assault and battery. The statutory misdemeanor of assault with a deadly weapon is a different offense from assault and battery.

      4. Assault and battery—assault with deadly weapon. The element of battery included in the ofiense of assault and battery is not included in the offense of assault with a deadly weapon.
    5. Assault and battery—verdict. It would seem that a verdict of guilty of assault and battery might be sustained under a count charging assault with a deadly weapon and battery.
    6. Criminal law—correcting verdict. It is not the province of the court to correct a verdict by correcting the number of the count on which conviction is had.
    7. Assault and battery—verdict. A verdict of guilty of assault and battery acquits of a charge of assault with a deadly weapon.
    Error to the County Court of Hancock county; the Hon. J. Arthur Baird, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed March 15, 1912.
    William H. Hartzell and Seymour L. McCrory, for plaintiffs in error.
    W. H. Stead and Clyde P. Johnson, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court..

This is a prosecution upon an information filed by the people in the County Court against the defendants, plaintiffs in error. The first count charges the defendants with an assault with a deadly weapon and a battery; the second and third charge an assault with a deadly weapon. On a trial the jury returned a verdict “We, the jury, find the defendants Daniel Martin and Edward Martin guilty in the manner and form as charged in the second count, viz.: assault and battery. ’; The defendants entered a motion in arrest of judgment, which was overruled, and judgment entered assessing a fine of seventy-five dollars against each defendant. The defendants prosecute this writ of error to review the judgment.

The verdict of guilty on the second count was equivalent to an acquittal as to the other counts. People v. Weil, 243 Ill. 208. An assault, and an assault and battery are separate and distinct offenses. Morse v. People, 26 Ill. App. 137; People v. Johnson, 147 Ill. App. 86. It is manifest that the misdemeanor • described in the statute as an assault with a deadly weapon is a different offense from assault and battery. An assault with a deadly weapon is a more serious offense than an assault and battery, hence a more severe penalty is fixed by the statute for the former than for the latter offense. The offense of assault and battery contains an ingredient that is not included in the offense of assault with a deadly weapon, viz., a battery.

The jury found the defendants guilty of an offense not as serious as that charged in the second count but containing a material element not charged in the second count of the information. Defendant in error contends that the words “viz., assault and battery,” are surplusage. The jury by their verdict state the offense of which they find the defendants guilty is that of assault and battery. A verdict of guilty of an assault and battery is an acquittal of a charge of assault with a deadly weapon. The verdict might have been sustained under the first count, if the jury had found the defendants guilty under that count, but it is not the province of a court to correct a verdict by correcting an error of the jury as to the number of the count. The verdict of guilty of assault and battery and the judgment thereon cannot be sustained under the second count. Morse v. People, 26 Ill. App. 137; Hunt v. People, 53 Ill. App. 111; People v. Johnson, 147 Ill. App. 86. The motion in arrest should have been sustained and the defendants discharged. The judgment is reversed.

Reversed.


text:
    Luella Sparks, Appellee, v. Max Scharlaw, Appellant.
    1. Dramshops—damages. Causes of action alleged are not inconsistent but are supplemental to each other, and recovery may be had on either or both where the first three counts in a declaration allege sales to plaintiff’s husband causing habitual intoxication and sales after notice not to sell to him and injury to plaintiff’s means of support, and the fourth alleges sales causing him to become so intoxicated that on being pushed or knocked down he fell and broke his leg causing injury to plaintiff’s means of support.
    2. Dramshops—cause of action. A good cause of action is proved under counts alleging loss of support because of habitual intoxication caused by the defendant and alleging sales after knowledge, that plaintiff’s husband was an habitual drunkard where it appears that the defendant sold such liquor to him for a long period, after knowledge that he was a drunkard, and after notice not to sell liquor to him, whereby the plaintiff suffered loss in her means of support.
    3. Proximate cause—how determined. The question of proximate cause of an injury must be determined in each particular case by the application of common sense to the facts of the case.
    4. Dramshops—proximate cause. In an action under the Dram-shop Act for injury to means of support because of the breaking of the leg of the plaintiff’s husband, alleged to have been caused by sales of liquor to him, it is a question for the jury whether such sales were the proximate cause of the injury where they might reasonably have found that the fall was caused by reason of in toxication, or by a push disconnected from the intoxication.

      5. New trial—counter affidavits. Counter affidavits may properly be filed on motion for new trial on the ground of disqualification or incompetency of a juror.
    6. Evidence—sanity. The proof is overwhelming that a juror formerly insane is fully restored and mentally competent where there are many affidavits to that effect by doctors and jurors and men who worked with him and further that he was discharged more than a year and a half before the trial, that he was carefully examined on voir dire before acceptance, and that he has served as juror in several cases since his discharge without traces of mental unsoundness being discovered, though affidavits by saloon keepers and one other state that he is insane.
    7. Bill oe exceptions—contents. An alleged inflammatory remark by counsel in argument is not saved for review where it is not shown in the bill of exceptions.
    Appeal from the Circuit Court of Vermilion county; the Hon. W. M. Thompson, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    T. B. Cosgrove, Charles Troup and Alfred Adams, for appellant.
    Clark & Hutton, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case, under Section 9 of the Dramshop Act, brought by Luella Sparks against Max Scharlaw to recover damages for loss of means of support by reason of defendant’s selling intoxicating liquor to plaintiff’s husband, a teamster. The declaration contains four counts. Two of the counts aver in substance that the defendant, a saloon keeper, at various times within one year prior to the beginning of the suit, sold and g'ave intoxicating liquor to George Sparks, the husband of plaintiff, causing him to become habitually intoxicated, and that in consequence of such habitual intoxication her husband squandered his-money, became greatly impoverished and ceased to attend to his business,' by means whereof and in consequence of such intoxication plaintiff was injured in her means of support. Another of the counts avers that the husband of plaintiff was an habitual drunkard, and the defendant having knowledge of such fact sold and gave him intoxicating liquor, etc.

The fourth count avers that defendant in 1910 sold and gave intoxicating liquor to her husband, then and there being in an intoxicated condition, and thereby, in whole or in part, caused the intoxication of her husband to such an extent that he was unable to protect himself, and in consequence of such intoxication, her husband, being unable to protect himself, upon being pushed or knocked to the floor then and there fell upon the floor and broke his leg and he has been thereby incapacitated from attending to his business, by means whereof she has been deprived of her means of support. The defendant plead the general issue. There was a trial by jury; a verdict in favor of plaintiff for $800 was returned on which judgment was rendered. The defendant appeals.

It is contended by appellant that the different counts set up inconsistent causes of action, and that the court erred in refusing to rule the plaintiff to elect under which she would proceed. The causes of action averred in the different counts are not inconsistent or repugnant. Under the first three counts plaintiff has a cause of action for loss of her means of support prior to the time the leg of her husband was broken. The proof shows that for eighteen months prior to that time, and after the defendant knew that George Sparks was an habitual drunkard and had been notified not to sell liquor to him, he continued to supply him with liquor and fostered the drunkenness of Sparks to such an extent that he neglected his business and did not support plaintiff as he had theretofore. A good cause of action was proved under the first three counts in the loss of plaintiff’s support in consequence of her husband’s habitual intoxication caused by defendant.

Under the fourth count the proof showed that on December 2, 1910, liquor was sold and given to George Sparks in the saloon of appellant; that in the evening of that day he was staggering drunk and leaning against the bar of appellant’s saloon; that “he was so drunk he could not stand upon his feet,” that while leaning against the bar he was either pushed by one Andrews or his arm slipped off the bar and he fell to the floor; that he then got up, walked a short distance and sat down on a chair; that he got up from the chair to go home and fell down, and that he again got up and sat on the chair when it was discovered his leg was broken. The result of the broken leg was that he was confined to his house for three months, and appellee was thereby damaged in her means of support. The causes of action were not inconsistent but supplemental to each other, and plaintiff mig'ht recover on either or both causes of action. Reed v. Peoria & Oquawka R. R. Co., 18 Ill. 403; 21 Encyc. of PL and Pr. 797.

Appellant argues that a verdict in favor of the defendant should have been directed in his favor on the fourth count. It is contended that there was an intervening efficient cause for the breaking of Spark’s leg, and that the intoxication of Sparks was not the proximate cause of the breaking of his leg and the consequent loss to appellee of her means of support. From the proof, the jury might reasonably have found that Sparks slipped, fell and broke his leg, if it was broken by the first fall, and that Andrews did not push him, or that by reason of his intoxication he fell because of a push, when he would not have fallen from such a push if he had not been intoxicated. The question of proximate cause has to be determined in each particular case by the application of common sense to the facts of the case. In this case the question was whether Sparks’ leg was broken in consequence of the intoxication or because of a push disconnected from the intoxication. It was a question for the jury to decide whether the leg was broken in consequence of the intoxication or of some other cause. Pullman Palace Car Co. v. Laack, 143 Ill. 243; Illinois Central R. R. Co. v. Sila, 229 Ill. 390; 133 Ill. App. 2; Stecker v. People, 217 Ill. 348.

The case was tried at the May term, 1911. On the hearing of the motion for a new trial appellant filed a number of affidavits, mostly made by saloon keepers, who say that Charles H. Leverenz, one of the jurors who sat on the case, was insane at the time of the trial. Appellee filed many counter affidavits made by jurors, doctors and men who had worked with Leverenz showing that the juror was in the possession of his natural faculties at the time he sat on the jury, and had been for twenty-two months prior thereto, during which time he had been worldng in railroad shops or on a farm. The juror had been adjudged insane, and for a short time had been in an asylum. Letters from the superintendent of the Eastern Hospital for the Insane, on file in the County Court of Vermilion county, copies of which were attached to an affidavit made by appellant, show that on February 5, 1910, the superintendent of the hospital notified the county judge that the parole of the juror had been extended to May 4; a letter dated August 1, 1910, to the county judge from the superintendent states that the juror was released on parole July 7, 1910, and if not returned before October 7, 1910, he will be entered as discharged. On October 8, a letter was written stating that the parole had been extended to January 7, 1911, and he would be discharged if not returned before that date. A letter dated February 1,1911, states that Leverenz “was discharged as improved January 7,1911.”

A large number of affidavits presented on behalf of appellee show that the juror was intelligent and sane, and that counsel for appellant carefully examined the juror on his voir dire before accepting him.

It is insisted the court erred in permitting appellee to file counter affidavits. The question concerning which the affidavits were filed was not upon the merits of the case, but only incidental to the trial. They were concerning a matter to be decided by the court and not by a jury. The filing of counter affidavits is proper on a motion for a new trial on the ground of the disqualification or ihcompetency of a juror. The affidavits of jurors are admissable to sustain their verdict. Machen v. People, 115 Ill. 312; Drainage Comrs. v. Knox, 237 Ill. 148; Gilchrist Trans. Co. v. North Grain Co., 204 Ill. 510; Bowman v. Bowman, 64 Ill. 75; Sanitary District v. Culverton, 147 Ill. 392.

Leverenz had after his discharge from the asylum served as a juror on the trial of several cases. Neither the court, the attorneys nor any of the jurors discovered any traces of mental unsoundness, and all who made affidavits, except some saloon keepers and one other pérson, say he was sane and intelligent.

The affidavits show that the juror had been discharged from the asylum more than a year and a half before he sat as a juror. The proof is overwhelming that the juror was fully restored and mentally competent. In Macken v. People, 115 Ill. 312, a case where the defendant was convicted of perjury, it was contended, as a reason for a new trial and reversal of the case, that one of the jurors was of unsound mind. It was said “it does not appear the mind of the juror was so seriously impaired as to render him incompetent.” “There is no satisfactory evidence that his mind was so much affected as to disqualify him as a juror. ’ ’ The appellant offered no proof in his defense on the trial and a verdict could not reasonably be returned otherwise than for appellee. The appellee was not prejudiced by the juror.

It is also urged that counsel for appellee, in his closing argument to the jury, made an inflammatory remark, to which an objection was interposed and sustained which aroused the prejudice of the jury, and that the case should be reversed for that reason. The appellant has not preserved in the record any part of the address of counsel.

The only reference in the record to any such matter is in the motion for a new trial. The bill of exceptions failing to show the remark, of which complaint is made, the question is not saved for review. Chicago, Burlington & Quincy R. R. Co. v. Reish, 247 Ill. 350.

The judgment is affirmed.

Affirmed.


text:
    W. H. Stead, Attorney General of the State of Illinois, and F. E. Latch, State’s Attorney for the County of Shelby, Appellees, v. W. C. Fortner and Ross Ward, Appellants.
    1. Dramshops-—local option elections. Where a township and a city therein have become anti-saloon territory by a township and city election, respectively, a vote at a subsequent township election that the same shall not remain anti-saloon territory does not cause the city to become saloon territory.
    2. Dramshops—construction of statute. Any statute for the curtailing or prevention of liquor traffic should he liberally construed.
    3. Dramshops—nuisance. The legislative declaration that the keeping of a place where intoxicating liquor is sold in violation of the Local Option Law is a common nuisance, is conclusive of that fact.
    4. Equity—jurisdiction to restrain saloon nuisance. A court of equity has jurisdiction to restrain the use of places, for the sale of intoxicating liquors in violation of the Local Option Law, though the act is also made criminal by statute.
    5. Attorney Generau—may restrain saloon nuisance. The Attorney General may sue to restrain the use of places for the sale of intoxicating liquor in violation of the Local Option Law and declared to be a nuisance thereby, even though no pecuniary or property interests are involved.

      6. Injunction—to restrain saloon nuisance should he limited in time. An injunction to restrain the use of premises for the sale of intoxicating liquors in violation of the Local Option Law should be limited to such time as the territory shall remain anti-saloon.
    Appeal from the Circuit Court of Shelby county; the Hon. J. C. McBbide, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed in part and remanded with directions.
    Opinion filed March 15, 1912.
    Statement by the Court. W. H. Stead, Attorney General of the State of Illinois, and F. E. Latch, State’s Attorney of Shelby County, for and on behalf of the People of the State of Illinois, on May 15, 1911, filed an information in equity in the Circuit Court of Shelby county showing the court:
    (1) That the county of Shelby, in the state of Illinois, is under township organization, and the town of Shelbyville is a town incorporated under the general laws of Illinois, and a political subdivision of said county, and that the city of Shelbyville is a city incorporated under the general laws of Illinois and situated within the town of Shelbyville, but its territory is not co-extensive with the town of Shelbyville and its corporate limits cover much less territory.
    (2) That at the town election in the town of Shelby-ville on April 7, 1908, the proposition 1 ‘ Shall the town of Shelbyville become anti-saloon territory?” was submitted to the voters and that by a majority of the votes cast at that election the town of Shelbyville became anti-saloon territory, according to the provisions of the Local Option Act, and at the city election in the city of Shelbyville on April 21, 1908, there was submitted to the voters of the city of Shelbyville the proposition “Shall the city of Shelbyville become anti-saloon territory?”, and that by a majority of the votes cast at that election, the city of Shelbyville became anti-saloon territory.
    (3) That at the town election in the town of Shelby-ville, held on April 7, 1911, the town of Shelbyville ceased to be anti-saloon territory, but the proposition “Shall the city of Shelbyville continue to be anti-saloon territory?” has never been submitted to the voters of the city of Shelbyville, whereby since the election of April 21, 1908, the city of Shelbyville has con-tinned to be and now is anti-saloon territory.
    (4) That on May 9, 1910, the city council of the city of Shelbyville pretended to pass an ordinance granting licenses to saloons within the city of Shelbyville, which was immediately signed by a mayor pro tern, and afterwards vetoed by the mayor, but at the next session of the city council the said ordinance was passed, in violation of the Local Option Act, over the veto of the mayor by a two-thirds majority. That prior to the passage of the said ordinance over the veto of the mayor, pretended licenses were issued by the mayor pro tem. and the city clerk to divers persons, one of which was to M. C. Fortner to conduct a place for the sale of intoxicating liquors in a certain building on the east side of Morgan street, between Main and First streets, giving the legal description of the premises in the city of Shelbyville, Shelby County, Illinois.
    (5) That the mayor and city council of the city of Shelbyville on May 1,1911, again issued pretended and illegal licenses to various parties to retail intoxicating liquor in said city for a period of one year, and that one of said pretended licenses was issued to M. C. Fortner to retail intoxicating liquor in the said described building.
    (6) That from May 9,1910, the said described building has been openly and continuously used as a place for the illegal sale of intoxicating liquor by said Fortner, and continues to be and is now so used, that during all the time since May 9, 1910, said Fortner has, in open defiance of law, continuously and wilfully sold intoxicating liquors at retail in said building to great numbers of persons; that during all the time aforesaid, the illegal use of said building and the illegal sales of intoxicating liquors therein have been permitted by Boss Ward, the owner of said building, and that said illegal sales are now made therein by M. C. Fortner with the knowledge and consent of said owner of said building.
    (7) That the illegal sales of intoxicating liquors aforesaid by the said persons have been made with the knowledge and consent of the local authorities of the city of Shelbyville, viz.: the mayor, the city council, and of the sheriff of the county, and such sales and the use of said building by said Fortner for said purpose are in open violation of law, and the local authorities have failed to prosecute for such unlawful sales or to attempt to prevent the same.
    (8) That on July 8, 1910, informations were presented in the County Court of Shelby county by J. H. Yencer against the defendant Fortner and- others, charging each of them with selling intoxicating liquors in the city of Shelbyville, and with maintaining a common nuisance in violation of law, but the county judge of said county refused to order warrants to issue thereon.
    (9) That at the November term, 1910, a list of witnesses, who were willing to testify to such illegal sales of liquor, was presented to the foreman of the Grand Jury, but the Grand Jury refused to hear said evidence.
    (10) That at the March term, 1910, of the Circuit Court of Shelby county, said Latch presented the said violations of law, with a list of one hundred witnesses, to the Grand Jury empaneled at that term who would testify to said illegal sales of liquor by said Fortner and others, but the Grand Jury refused to hear said witnesses, or to return any indictment against said Fortner or others.
    (11) That the said building, owned by said Boss Ward and so occupied by said Fortner, has for the period of one year last past been continuously used as a place for the illegal sale of intoxicating liquor, and is now so used by said Fortner in open violation of the Local Option Law with the consent of said owner; that by reason of the premises the said building is a common nuisance and offensive to the public order and economy and law of the state; that the said illegal sales of intoxicating liquor in said building are in flagrant violation of law and with the acquiescence of the city and county authorities, whose duty it is to prevent and prosecute such violations, whereby a proscribed business, evil in its influences, is permitted to exist, subverting the public morals and engendering a contempt for law in that community; that Fortner intends to and will continue to sell liquor in said building unless restrained; that all remedies at law have been and will continue to be ineffectual to secure the enforcement of the law in the city of Shelbyville; that, unless the court will restrain the illegal sale of intoxicating liquor in said building, the laws of the state will be persistently violated, and that such a condition exists in Shelbyville as requires the intervention of a court of equity.
    (12) The information prays an injunction perpetually restraining the defendants from using ór permitting said premises to be used as a place for the sale of intoxicating liquor.
    The defendants demurred to the information and state as special causes of demurrer (a) that informants have an adequate remedy at law; (b) that the information does not charge any damages to the property rights of any person, and (c) that no special jurisdiction being given by statute and no property rights being involved a court of chancery has no jurisdiction. The court overruled the demurrer, and defendants' abiding by their demurrer, the court entered a decree finding the facts as alleged in the information, that the said building as used is a common nuisance, and decreeing that the defendants abate the same and perpetually enjoining them from using or permitting the use of the said premises for the sale of intoxicating liquors. The defendants appeal.
    W. C. & W. L. Kelley and Chafee & Chew, for appellants.
    W. H. Stead, W. Edgar Sampson and F. E. Latch, for appellees; Emery Andrews, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

The first question presented for review is, Was the city of Shelbyville, at the time the licenses were granted to the defendant, Fortner and others, to sell intoxicating liquors, anti-saloon territory? Section 8 of the Local Option Act provides that all the territory within any political subdivision which has become anti-saloon territory shall continue to be anti-saloon territory throughout its entire extent until the legal voters thereof have voted according to the provisions of the act to discontinue such anti-saloon territory, and that the following section shall be construed in harmony therewith.’ Section 2 provides, that upon the filing of a petition, as in the act provided, containing the signatures of legal voters of any political subdivision, to submit to the voters of such political subdivision, the proposition, “Shall this --— become anti-saloon territory?” said proposition shall be submitted. The act also provides that “anti-saloon territory” shall mean all the territory within the limits of any town, precinct, city or village in which, through the action of the voters therein, the sale of intoxicating liquor is •prohibited; that “political subdivision” shall mean the phrase “town, precinct, city or village,” and that in the phrase “Shall this-become anti-saloon territory?” the proper word “town,” “precinct,” “city,” or “village” shall be inserted in the blank and the same shall be inserted in the petitions and ballots prepared for the voters. The act provides, that such election can only be held at a timé fixed by law for regularly choosing town, city or village officers, and the petition for such election must be filed at least sixty days before the election. One of the contentions of appellants is that because the town of Shelbyville, within and a part of which is the city of Shelbyville, had on April 7, 1908, voted to become anti-saloon territory, that therefore, the city of Shelby-ville had no legal right to vote on April 21,1908, upon the question whether the city of Shelbyville shall become anti-saloon territory. Under the statute any town, precinct, city or village has the right to vote on the question, shall its territory become anti-saloon territory. The precincts of the city of Shelbyville are only part of the precincts that make up the town of Shelbyville. The town of Shelbyville by voting upon the question and becoming anti-saloon territory would not preclude any lesser political unit, either city or precinct, from voting on the question, and causing such lesser unit to remain dry until both the larger unit and any lesser unit contained therein voted that both the larger and lesser unit should not remain anti-saloon territory. (Schwartz v. People, 104 Pacific B. 92.) The traffic in intoxicating liquor is recognized as an evil and menace to society, and any statute for the curtailing or prevention of such traffic should be liberally construed. This statute was enacted with a view of promoting anti-saloon territory. To give it the construction contended for by appellants would be to so construe it as to promote saloon territory against the will of a city or precinct—the lesser unit. The vote of the town of Shelbyville, in 1910, that the town should not remain anti-saloon territory, did not make the lesser unit, the city of Shelbyville, become saloon territory, but the territory of the city remains anti-saloon territory.

The city of Shelbyville being anti-saloon territory, the next question presented is, has a Court of Equity jurisdiction to enjoin the use of property therein for the illegal sale of intoxicating liquors, at the suit of the Attorney G-eneral of the state, without an allegation of pecuniary damage to private or public property.

The Local Option Act provides, in Section 14, that “all places where intoxicating liquor is sold in violation of any provision of the act shall be taken and held and are declared to be common nuisances and may be abated as such.” The legislative declaration, that such places are a common nuisances, is conclusive of that fact, and it is not competent for a party to show that it is not in fact a nuisance. Laugel v. City of Bushnell, 197 Ill. 20; Dennehy v. City of Chicago, 120 Ill. 627; Crowley v. Christenson, 137 U. S. 86.

The Local Option Act has a double aspect. It provides a punishment for the persons transgressing its provisions, and makes property used for the illegal sale of liquor thereon a common nuisance. There is no good reason apparent why proceedings may not be prosecuted under both phases of the statute. The principle is laid down in Story’s Equity Jur., Sections 921, 923 and 924, that courts of equity have jurisdiction to abate common nuisances. In Section 921 Story says: “In regard to public nuisances the jurisdiction of courts of equity seems to be of very ancient date and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisances, strictly so called, but also to purprestures upon public rights and property.” In Section 923, he says: “In cases of public nuisances properly so called, an indictment lies to abate them and to punish the offenders. But an information also lies in equity to redress the grievances by way of injunction. The instances of the interposition of the court, however, are (it is said) rare and principally confined to informations seeking preventative relief.” In Section 924, he says: “The ground of this jurisdiction of Courts of Equity in cases of purpresture, as well as of public nuisances, undoubtedly is their ability to give a more complete and perfect remedy than is attainable at law, in order to prevent irreparable mischief and also to suppress oppressive and vexatious litigation.” In Mugler v. Kansas, 123 U. S. 672, it is said: ‘1 The courts can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest and abate those in progress and by perpetual injunction protect the public against them in the future. * * * This is a salutary jurisdiction, especially where a nuisance affects the health, morals or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury.” In 4 Pomeroy’s Eq. Jur., Section 1349, it is stated: “A Court of Equity has jurisdiction to restrain existing or threatened public nuisances by injunction at the suit of the attorney general in England, and at the suit of the state, or the people, or municipality or some proper officer representing the commonwealth in this country.”

This doctrine that the Attorney General has power to abate a public nuisance by an information in equity was early recognized in the courts of this state. “The court of chancery may grant preventative as well as remedial relief and this may be done where the act threatened would be punishable under the criminal laws as a nuisance.” People v. St. Louis, 5 Gilm. 351; Smith v. McDowell, State’s Attorney, 148 Ill. 51; Hunt, Attorney General, v. Chicago, H. & D. Ry. Co., 121 Ill. 638. It is not necessary for the Attorney General, in the information, to show that the nuisance causes a pecuniary damage to the public. 5 Pomeroy’s Eq. Jur., Sec. 479; Joyce on Nuisances, Sec. 81; Smith v. McDowell, State’s Atty. (supra), 21 Am. & Eng. Ency. of Law, 705; In re Debs, 158 U. S. 564; State of Missouri v. Canty, 15 L. B. A. (N. S.) 747. It is not the selling, or the keeping for sale, or the resorting for the purpose of drinking, that constitutes the nuisance and against which the nuisance part of the statute is directed, but it is the keeping of a place where any or all of these things are done, that constitutes the nuisance. Joyce on Nuisances, Sec. 400; State v. Chapman, 10 L. E. A. 432; Carleton v. Rugg (Mass.) 5 L. E. A. 432.

Appellants insist that, because the statute provides a remedy by indictment and that on a conviction the Criminal Court may enter an order abating the nuisance, that the remedy at law is ample and a Court of Equity may not take jurisdiction. The proceeding in equity is against the property; the fact that selling liquor illegally is a breach of the law, does not make the proceeding in equity a criminal one. That a defendant may have been indicted and acquitted of keeping a nuisance will not necessarily deprive a Court of Equity of jurisdiction to abate the nuisance. Minke v. Hopeman, 87 Ill. 450; 1 High on Inj., Sec. 745. That the statute has added to the jurisdiction of the Criminal Court the right to abate a nuisance will not take from a Court of Equity jurisdiction over a matter which was within its jurisdiction before the enactment of the statute.

Appellants further contend that the validity of the license cannot be tried in this proceeding and that that question can only be tried by a proceeding in quo warranto. If that be true, still the nuisance on the premises could not be abated by such a proceeding, but an additional suit would be necessary to abate the nuisance, while in this suit, if equity has jurisdiction, the nuisance is abated by the one suit.

Appellants argue that the cases of People v. Condon, 102 Ill. App. 449, and Cella v. People ex rel., 112 Ill. App. 376, are conclusive that a Court of Equity has no jurisdiction in this case. In these cases an injunction was sought against the personal conduct of the defendants to restrain them from committing criminal offenses, and not against the nse of property by defendants. In the case at bar the suit is against the nse of property as used, to restrain its use as a nuisance. The status of the real estate is the gist of this suit, and the cases relied upon are clearly distinguishable from this case.

We regard the reasoning in the cases of Hunt v. Chicago H. & D. Ry. Co., 121 Ill. 638; People v. St. Louis, 5 Gilm. 351; Smith v. McDowell, State’s Atty., 148 Ill. 51; Hoyt v. McLaughlin, 250 Ill. 442; Chicago Fair Grounds Assn. v. People, 60 Ill. App. 488, in which the using of premises for pool selling was enjoined; In re Debs (supra); State ex rel. v. Crawford, 28 Kans. 726, where the maintenance of a saloon in violation of law was enjoined as a nuisance; State ex rel. v. Hobart, 8 Ohio N. P. 246; Walker v. McNelly, 121 Ga. 114, where the maintenance of a bar room within three miles of an academy was restrained; Commonwealth v. McGovern, 116 Ky. 212, 66 L. R. A. 280, in which the use of property for a prize fight was restrained as a nuisance; Missouri v. Canty, 207 Mo. 439, 15 L. B. A. (N. S.) 748 in which bull fighting was restrained as a nuisance; Commonwealth v. Respass, 131 Ky. 807, 21 L. R. A. (N. S.) 836, in which at the suit of the state the use of premises for pool selling was enjoined as a nuisance, and Attorney General v. Cockermouth, L. R. 18 Eq„ 172, as conclusive of the question that a Court of Equity has jurisdiction to declare and abate a nuisance, and is not deprived of such jurisdiction merely because the maintenance of such nuisances constitutes a statutory criminal offense, and that nuisances may be abated at the suit of the attorney general although pecuniary or property interests are not involved. The facts properly pleaded in the bill are by the demurrer admitted to be true, and the allegations of the bill state a proper case for the restraining power of a Court of Equity.

The defendants by the decree are perpetually restrained from using or permitting’ said premises to be used for the sale of intoxicating liquors. They have raised no question as to the extent of the injunction. The continuation of the injunction should have been limited in time, to until the voters of the city of Shelby-ville shall, if they ever do so, vote that such territory shall not remain anti-saloon territory. The case is reversed with instructions to the court to so modify the injunction, in all other respects the decree is affirmed. Affirmed in part, reversed in part and remanded with directions.


text:
    John F. Farris and Henry Barger, Defendants in Error, v. Claude Alfred and Ed. Alfred, Plaintiffs in Error.
    1. Sales—When supposed warranty is mere commendation. On a sale of an automobile sold to* a rural mail carrier, a statement that it would give swifter and better service than the horse the carrier was using is only an expression of opinion or belief on which the purchaser may use' an independent judgment, and must be regarded as mere commendation and not a warranty.
    2. Bills and notes—plea of failure of consideration. A plea in an action on a note given for an automobile purchased by a rural mail carrier, averring that it was warranted to be fit for the purpose of carrying mail over his rural route and that it was wholly unfit for the purpose and at times refused to run, states a mere conclusion and is demurrable; it should aver the particular part wherein the machine was defective or unfit for the purpose for which it was bought.
    3. Bills and notes—plea of failure of consideration. In an action on a note a plea of failure of consideration should show in what manner it has failed; the circumstances of the failure should be set out with as much precision as in a declaration.
    Error to the County Court of Coles county; the Hon. Chables A. Shuet, Judge, presiding. Heard in this court at the October term, 1911.

    Affirmed.
    Opinion filed March 15, 1912.

      James Vause, Jr., for plaintiffs in error.
    J. H. Marshall and C. C. Lee, for defendants in error.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit on a promissory note for $825 executed by defendants. The defendants filed a plea of failure of consideration for said note, except as to the sum of three hundred dollars. The plea avers that the note was given for an automobile sold to defendant, Claude Alfred, by the plaintiffs; that Claude* Alfred was eng’aged in delivering United States mail on a rural route and that plaintiffs warranted said automobile £‘to be fit for the purpose of carrying said United States mail over said rural route,” and that said automobile would give swifter and better service than the horse which defendant Claude Alfred was then driving on said route, and that upon the sole consideration of said sale and warranty the defendants made and delivered said note. The plea avers that said automobile was not fit for the purpose of delivering mail over said rural route and would not and did not give swifter and better service than the horse that Claude Alfred was then using, but the same was wholly unfit for said purpose and at times refused to run or go over said route and has so continued, by reason whereof said automobile was not of any greater value than the sum of three hundred dollars, and the consideration for said note has failed, except as to said last mentioned sum. The plaintiffs filed a demurrer to the plea and state, as special causes of demurrer, that the plea is uncertain as to the supposed breach of warranty; that the alleg*ations of the plea are conclusions' and that it does not aver that the automobile was defective in any way. The court sustained the demurrer and defendants abiding by their plea, judgment was rendered in favor of plaintiffs.

The only question raised by the defendants is the propriety of the ruling on the demurrer. That part of the supposed warranty, which asserts that the automobile would give swifter and better service than the horse the defendant was using, was only an expression of opinion or belief on which the purchaser had the same opportunity of exercising his judgment that the vendor of the machine had, and must be regarded as mere commendation.

From the plea it is not clear whether the words averred to have been spoken by the vendor constituted a warranty or were merely the expression of an opinion. If the machine was bought by the purchaser to use in carrying mail over a particular route and the vendor, knowing that fact, said it was fit for that purpose and the purchaser had no knowledge of the machine and relied on the statement of the vendor, then there was a warranty. If the machine sold to defendants was unfit for the purpose of carrying mail over that route, either because of defective construction in some particular part or because of want of necessary power, the plea should have averred the particular part wherein the machine was defective or unfit for the purpose for which it was bought. While the plea avers that the machine was hot fit for carrying the mail, and negatives the supposed warranty in the words of the warranty, yet that is only a conclusion drawn from facts which should have been pleaded. A plea of failure of consideration should show in what • manner it has failed; the circumstances of the failure should be set out with as much precision as in a declaration. Honeyman v. Jarvis, 64 Ill. 366. “The plea must state particularly in what the failure consisted.” “General averments are not sufficient.” Parks v. Holmes, 22 Ill. 522; Baldwin v. Banks, 20 Ill. 48. Under the plea there was no specific fact averred upon which an 'issue of fact could be made to submit to a jury. There was no error in sustaining the demurrer. The judgment is affirmed.

Affirmed.


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    Noel Orlea, Appellee, v. Bunsen Coal Co., Appellant.
    1. Mines'—safe place to work. The rule requiring the master to use reasonable diligence to furnish a reasonably safe place for his employees to work does not apply to those employees whose duties are to make dangerous places safe, and this is true in the case of mines notwithstanding the mining act.
    2. Master and servant—risk assumed in making dangerous place safe. An experienced timber man was using his own method in making safe a dangerous place in a mine, and it becoming necessary for him to run he caught his foot in a hole between ties in the roadway that was full of slush and mud. Held, that he had equal means of knowledge with the owner to observe the conditions, and that he assumed the risk of the hole as a matter of law.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed March 15, 1912.
    William Beye and Rearick & Meeks, for appellant; Knapp & Campbell, of counsel.
    R. Allen Stevens and Clark & Hutton, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case for the recovery of damages for a personal injury averred to have been sustained because of the negligence of the defendant while he was in its employment. There was a verdict and judgment for $800 in favor of the plaintiff. The defendant prosecutes this appeal.

The declaration consists of two counts alleging common law negligence. _ The first count avers that the plaintiff was working for the defendant as a coal miner and that the defendant negligently failed to use reasonable care to keep a certain roadway in a reasonably safe condition, in that it negligently permitted a certain hole to be and remain between the ties at a point near where the plaintiff was ordered to work; that said hole extended across the roadway between the rails of the track and was filled with water and soft mnd, and that this was a dangerous condition, which had existed for a long time, of which the defendant had knowledge and that the plaintiff had no knowledge of the existence of the hole and no opportunity to discover the same. The only difference in the second count is that it avers that such condition had existed for such a length of time that the defendant by the exercise of ordinary care would have known of it.

The evidence shows that the mine had been shut down for several months prior to the accident; that the defendant had purchased the mine and was cleaning up the entries and getting it in shape to begin mining; that at that time no person was in the mine except persons employed for the purpose of making the mine safe and improving its condition; that the entries were in bad repair and unsafe; that there was rubbish upon the tracks and the timbers, caps and braces supporting the roof had become insufficient and unsafe to support it; that the work of getting the mine in shape for work was progressing in certain entries towards the west and that it was necessary that the timber men should make the roof safe by pulling down the loose rock and timbers, and supporting the roof with new timbers where necessary, before the men working upon the roadway were permitted to work under the roof. Tony Witsch, plaintiff’s helper, testified on behalf of plaintiff that “we and the timber gang were going ahead of this rock gang taking down the roof and making it safe wherever it was necessary, so that the men on the roadway would not have to work under a place that was unsafe.”

Freeman Orlea, a nephew of plaintiff, who was working in the main west entry at the time of the accident testified that he knew that the timbers there were old and rotted and the roof in a very dangerous condition, that he knew that was its condition the night before, and that there were men taking down this loose rock and timbers so as to make the roof safe.

The plaintiff was a coal miner of thirty years experience ; he was engaged by the defendant as an experienced timber man and had had much experience in that line. He testified that he had been working in the sixth west entry and that he was directed by his foreman to go with his partner to the fifth west entry where there was a “new fall,” “pull the fall down and make it safe,” so that the work of clearing up that entry might proceed. He with his helper and the foreman went through a cross cut and on arriving in the fifth west, entry they proceeded west to a point just east of room twenty-two. Plaintiff was asked what the foreman said about the manner of doing the work and replied he was sitting just back of us; “he didn’t say anything, just let us do it on our own judgment.”

Plaintiff and his helper took down a fall, and at the time of the accident were engaged in removing the old timbering and loose rock just east of room twenty-two. At this point there were four timbers two or three feet apart across the top of the entry supported on the north side by a “hitch” in the side wall. The south end of each timber was supported by a prop. The entry had been made safe east of this place. Nothing had been done on the roadway under these timbers because of the dangerous condition of the roof. There was mud and slush in the roadway to such an extent that some' of the ties were covered with mud and water. Plaintiff standing under the second timber from the west assisted by his helper who stood behind him proceeded to knock down the post under the west timber, using a prop for that purpose. When they rammed the post under the south end of the west timber, it fell to the east knocking down the next timber east, and it fell against the next one, and that against the last one, so that all four timbers fell. The plaintiff ran east and claims to have got his foot caught between the ties, which were four feet long and four or five inches square. He fell under where the third timber had been, and was struck by a falling rock that broke his leg which is now crooked and weak.

The rule requiring the master to use reasonable diligence to furnish a reasonably safe place for his employees to work does not apply to those employees whose duties are to make dangerous places safe, and this is true in the case of mines notwithstanding the statute. Kellyville Coal Co. v. Bruzas, 223 Ill. 595; Tygett v. Sunnyside Coal Co., 121 Ill. App. 77; Village of Montgomery v. Robertson, 229 Ill. 466; Ashcraft v. Roberts, 151 Ill. App. 88; Morgan v. Wabash Ry. Co., 158 Ill. 344.

The plaintiff although working in a mine was not employed as a miner proper working at mining, but was employed to make safe the dangerous places in the mine, the conditions of which were obvious and apparent to the observation of any person of ordinary intelligence. The evidence shows that he had full opportunity and equal means of knowledge with defendant to observe the conditions and that he did see the conditions and is chargeable with full notice thereof. It was by reason of his employment to make safe these dangerous places that he was injured. He was given no special directions by his foreman as to how to do the work, but only told to make it safe; the method was left to his own judgment. In undertaking this work he assumed the hazard of the employment.

No judgment in favor of the plaintiff can be sustained when the testimony given by him is considered. The judgment is reversed.

Reversed.

Finding or Fact : The plaintiff assumed the risk of the danger by which he was injured.


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    Myrtle Jorte, Administratrix of the estate of Roy Jorte, deceased, Appellee, v. Chicago & Alton R. R. Co., Appellant.
    1. Master and servant—duty of switchman to inspect appliances. Where a brakeman is furnished with printed rules requiring him to examine and know condition of brakeshafts, hand holds and similar appliances, he is not, when he is made a switchman, charged with the duty of inspection if there is no evidence of rules concerning switchmen.
    2. Master and servant—when employer's■ knowledge of defects is a question for the jury. A switchman was killed while boarding an engine tender. No one saw how he fell but he exclaimed “the cut lever is the cause of this,” The cut lever was attached to a bracket that was attached to a wooden sill of the tender and was found pulled off. There was evidence that the bracket was cracked and that the sill was rotten and it did not appear that deceased had any knowledge of such conditions. Held, it was a question for the jury whether defendant company had actual or constructive knowledge of the defects.
    3. Master and servant—when employer is negligent in furnishing defective equipment. A switchman was killed while boarding an engine tender and a bracket attached to a wooden sill and holding a cut lever was found to have been pulled away. There was evidence that the bracket had been cracked and that the sill was rotten. Held, the jury might reasonably find that the company had been negligent in furnishing defective equipment.
    4. Master and servant—evidence sufficient to show due care of employe. Where a switchman was killed while boarding an engine tender by the giving away of a bracket holding a cut lever, and the evidence shows that he was an able bodied man, twenty-seven years of age, of careful habits, industrious and sober and that he was performing his duty in the customary manner, his due care may be inferred from the circumstances.

      5. Master and servant—due care may de shown 6y circumstances. Direct testimony on an issue whether a servant was using due care when injured is not required hut only the best evidence that is susceptible of being adduced under the circumstances of the case.
    6. Master and servant—when proximate cause of injury is for the jury. A switchman was killed while boarding an engine tender in the night time, and the equipment of a cut lever attached to the tender was found to have been defective, of which condition he had no knowledge. It was claimed that he might have grasped the cut lever instead of a grab iron. There was evidence that switchmen sometimes caught the cut lever in the night instead of a grab iron, they being a few inches apart and about the same size. It was a part of decedent’s duty to use the cut lever. Held, it was a question for the jury as to the proximate cause of the death, and they might reasonably find the defective cut lever to have been the cause.
    7. Master and servant—when evidence admitted on condition is properly followed up. A switchman was killed apparently by a defect in a cut lever that he was required to use which was attached to an engine tender. Evidence as to what was the matter if a “knuckle” did not open when the cut lever was used was admitted on a promise to supply evidence that it did not open. Another switchman testified that the knuckle “worked hard and did not work as easy as it should so I used a chain after that.” Held, the evidence was properly admitted.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Patton & Patton, for appellant; Silas H. Strawn, of counsel.
    Drennan & Lawler, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case begun by Myrtle Jorte, administratrix of the estate of Roy Jorte, deceased, against the Chicago and Alton Railroad Company to recover damages for the death of plaintiff’s intestate, averred to have been caused by the negligence of the defendant. A jury returned a verdict against the defendant for $7,000 upon which judgment was rendered. The defendant prosecutés this appeal.

The declaration contains two counts substantially alike. They aver in substance that the deceased was in the employ of the defendant as a switchman; that the defendant negligently failed to use reasonable care to furnish the deceased reasonably safe appliances, in that it negligently furnished him a steam engine with a tender attached for switching purposes, the cut bar of said tender and the wooden beam to which it was adjusted, being old, rotten, broken, weak, worn out, defective, and out of repair, which condition was known to the defendant or by the exercise of reasonable diligence on the part of the defendant could have been known, but the deceased did not know of said condition and by the exercise of due care on his part it could not have been known to him; that while the deceased was engaged at work upon said engine in the line of his duty as switchman and in the exercise of due care for his safety, by reason of said cut bar, castings and wooden beam being old, rotten, broken, weak, defective and out of repair, one of the castings pulled loose and gave away from the wooden beam, by reason whereof deceased was thrown or fell from the footboard of said tender and killed.

The appellant has raised no question concerning the declaration or as to the giving or refusing of any instructions, with the exception that it contends that a peremptory instruction to find for the defendant should have been given, because there is no evidence tending either to show that the death of .Jorte was caused by the defect in the cut lever, or that he was in the exercise of due care.

The evidence shows that Jorte was working as a night switchman in the switch yard of appellant at Eigley on the night of October 21, 1910, when he was killed shortly after midnight; that he was working with another switchman named Sutton, Jorte working on the engine and Sutton in the yards; the engine tender had a sloping tank with a “cut lever” running across the end that could cut from both sides. A “cut lever” is an iron rod running along the sill at the rear of the tank on the tender. It is held in place by an iron bracket at each end and one in the middle fastened to the sill and terminates with a lever at each end on the side of the tender just outside the end brackets. Its use is to raise the pin or lock block in the knuckle by a short lever attached in the center with a chain connecting the center lever with the pin so that the automatic car coupling can be opened with the cut lever. A few inches above the cut lever is a grab iron or hand rail about the same size as the cut lever, fastened at each end to the tank sill, for the support of the men riding on the footboard of the tender. During the afternoon before Jorte was killed and while the day switchmen were at work, in making a coupling the knuckle on this tender passed another, and the T on the cut lever struck the vestibule of a coach bending the rod so that the cut lever did not work easy after that time. When Jorte went to work the chain that connects the cut lever with the pin was also discovered to be out of order; this was reported to the engineer and fixed by him. The evidence further shows the bracket on the right-hand side had been cracked on top of the sill near the shoulder of the casting for some time, as was shown immediately after the accident by the rusted condition of the fracture. A witness, McG-ahey, testified that he was working with this engine in the daytime, two days before the deceased was injured by this engine, and noticed that the bracket on the cut lever on the right-hand side of the tender was loose; that he drove an ordinary railroad spike into the sill at the side of the bracket to fasten it; that the spike drove in easy as he drove it in with an inch bolt a foot long and that the sill was inclined to be rotten. He did not observe that the end bracket was cracked or broken but did see the center bracket was broken.

About midnight the foreman gave an order to the switching crew, with which Jorte was working, to take the engine and get some cars about four car lengths distant from the tender. Sutton and Jorte were then standing about opposite the cab of the engine. Jorte said “let us go” and started to the end of the tender and stepped on the footboard. Sutton saw nothing further, as he stepped on the footboard at the front of the engine as it passed him and immediately heard some one cry out and saw the foreman give a stop signal. Sutton went back to the tank and heard Jorte crying out under the tank. Sutton said how did you happen to get this, and Jorte said “the cut lever is the cause of this.” On examining the tender, it was found the bracket on the west side of the sill was pulled off, and the cut lever at the west end, the right-hand side was hanging down across the coupler.

The proof also shows that Jorte had been a brakeman for the defendant from October, 1909, until December, 1909, when he became a switchman. As a brakeman he was furnished with a set of printed rules. One of the printed rules requires all brakemen to examine and know the condition of the brakeshafts, ladders, running boards, steps and hand holds and know that they are in proper condition. The evidence does not show that there are any rules concerning switch-men. Appellant argues that “the position of brakemen and switchmen are practically the same, the only difference being that brakemen work out on the road, while the switchmen’s duties are confined to the yards.” Switchmen work by the hour and brakemen by the trip. While they have some similar duties to perform a switchman is not a brakeman. The defendant required parties desiring to work in either one of these situations to sign a written application stating the employment the applicant desired. There is nothing in the rules requiring inspection by switchmen, and the deceased when injured was acting under the direct orders of a foreman of defendant.

The deceased had never worked with this engine in the daytime, and the evidence does not show that he had any knowledge or information that the sill of the tender, to which the bracket that gave way was attached, was rotten. It was a question for the jury to decide from the evidence, whether the defendant had, or ought to have had, knowledge of the condition of the sill and bracket or either of them.

“The servant is under no primary obligation to inspect for latent defects and test the fitness and safety of the place, fixtures, or appliances provided him by the master. He may assume that they are fit and safe, and though the circumstances may be such a servant is chargeable with knowledge of such defects as are patent and obvious and of such defects as in the exercise of ordinary care he ought to have knowledge of, the servant is not to be deemed as having notice or knowledge of such defects and insufficiencies as can be ascertained only by investigation and inspection for the purpose of ascertaining that there is no danger.” Wrisley Co. v. Burke, 203 Ill. 250; Armour v. Brazeau, 191 Ill. 117. “While there is no absolute duty to use reasonable care to keep appliances in safe condition, there is a duty to use reasonable care to keep them fit, and this duty may require inspection at reasonable intervals, and the employment of such tests as will reveal the condition of the machinery or appliances. This duty of inspection rests upon the employer and not the employee and depends on the character of the machine or appliance, since ordinary care may require an inspection oftener in one case than in another.” Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145.

The jury might reasonably find from the evidence that the defendant was negligent in furnishing the deceased an engine to work with, the sill of the tender of which was so defective or rotten that the lag screws which fastened a bracket holding the cut lever in place, pulled out and that the said bracket or casting was fractured and that the defendant had notice of such defects.

No person saw how the deceased fell under the engine, but it is clear that he fell because of the bracket giving way at the end of the cut lever. The evidence shows that he was an able-bodied man, twenty-seven years of ag-e, of careful habits, industrious and sober and that he was performing his duty in the customary manner when injured. From the circumstances in evidence due care by the deceased may be inferred. Direct testimony on that issue is not required but only the best evidence that is susceptible of being made under the circumstances of the case. C. & A. R. R. Co. v. Carey, 115 Ill. 115; E. J. & E. Ry. Co. v. Hoadley, 220 Ill. 462.

Appellant also contends that the judgment cannot be sustained because the proof does not show that the deceased was working with the cut lever to open the knuckle of the coupler when injured, and that he may have grasped the cut lever instead of the grab iron when he stepped on the footboard of the tender.

The evidence is that switchmen, in the night time, must hold their lanterns to see to step on the foot board and grab with the other hand at the grab iron, and that sometimes they catch the cut lever as the cut lever and the grab iron are only four or five inches apart and about the same size. The cars they were going to get were only about four car lengths distant when they started. The cut lever had worked stiff since the accident in the afternoon. It does not appear that the deceased had any knowledge of the accident that damaged the cut lever. The engine had ■ moved its length, since Sutton, standing until the engine passed him, had stepped on the footboard at the other end before he heard the deceased cry ont. It was the dnty of the deceased to open the automatic coupler before reaching the cars. In performing that duty the handle of the cut lever would be pulled in the direction away from the sill of the tender. It was a question for the jury under the circumstances to decide what was the proximate cause of the injury, and they might reasonably find the defective cut lever to have been the cause while the deceased was in the performance of his duty.

Plaintiff asked the witness Sutton, a switchman, “If the knuckle don’t open when you pull the pin with the cut lever then what is the matter?” The court permitted this question to be answered on the promise of counsel that there would be evidence that it did not open. The witness answered “on account of the knuckle not being greased or working right, it should be kept oiled.” There was proof that the knuckle did not work right all the afternoon by the witness Pollard. He was the switchman working with the engine when the couplings passed each other; he testified, “it worked hard and did not work as easy as it should so I used the chain after that, just used the lever once after the collision.” We find no error in the ruling concerning this evidence.

While appellee has assigned cross errors, in the view we take of this case it is not necessary to review them. Ho sufficient reason having been shown for the reversal of this judgment, it is affirmed.

Affirmed.


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    Irwin E. Fosnaugh, Administrator of the estate of Mrs. James A. Fosnaugh, deceased, v. James H. Jiles, Appellant.

      Bankruptcy—sufficiency of plea of discharge. A plea setting up a discharge to J. H. Jiles, if defective in not averring that the defendant James H. Jiles is the person mentioned in the discharge, is defective only in form and cannot be attacked by a general demurrer.
    Action in assumpsit on a note. Appeal from the Circuit Court of DeWitt county; the Hon. Fred C. Hill, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed March 15, 1912.
    W. F. Gray, for appellant; L. E. Store, of counsel.
    Johr Fuller and L. O. Williams, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Plaintiff began this suit in assumpsit to recover on a promissory note executed by the defendant on February 26, 1906. Among other pleas, the defendant filed an amended plea averring that after the making of the said supposed promises in the declaration mentioned, and before the commencement of this suit, on,, to-wit, May 24, 1907, the United States Court of the Southern District of. Illinois granted to the defendant a certain discharge in bankruptcy in words and figures following, setting up in haec verba a discharge to J. H. Jiles, and further avers that the supposed cause of action and each of them in the said declaration mentioned are in respect to a debt and claim provable against the estate of the defendant, which existed on May 2, 1906, and are not any of them excepted from the operation of a discharge in bankruptcy, and prays judgment, etc. The plaintiff filed a general demurrer which was sustained and defendant abided by his plea. Judgment was rendered in favor of the plaintiff. The defendant appeals.

The only contention urged by appellee as a cause for sustaining the demurrer is that the plea is defective in not averring* that the defendant, James H. Jiles, is the J. H. Jiles mentioned in the discharge. The plea avers that the United States Court on etc., granted to the defendant a discharge in words and figures to-wit, etc. If there is any defect in the plea it is one in form and not in substance and could not be taken advantage of by a general demurrer. The court erred in sustaining the demurrer to the plea of discharge in bankruptcy. The judgment is reversed and the cause remanded with instructions to the trial court to overrule the demurrer to the amended plea.

Reversed and remanded ivitfo directions


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    Alonzo Leonard, Appellee, v. B. Heavner, Appellant.
    1. Alteration* of instruments—materiality. Wliere persons contract to repurchase a note from the holder after a certain time, reserving the right to redeem it any time, an unauthorized striking out of the reservation, at the instance of the holder, before the contract is accepted, is a material alteration which will release one who signed the contract as surety.
    2. Alteration of instruments—authority to alter cannot he proved hy statements of agent. Where the payee of a note contracts to repurchase the same from the holder and the contract is signed by another as surety, in an action against the surety on a failure to repurchase, evidence of a statement made by the payee to an agent of the holder at the time the contract was accepted, that he had authority to make a material alteration in the contract, is not admissible.
    3. Alteration of instruments—evidence to prove authority to alter. Where the payee of a note contracts to repurchase the same from the holder and the contract is signed by another as surety, that the signers were costockholders in an insolvent corporation, the stock of which was all water, is not of itself sufficient to prove that the payee was an agent of the surety with authority to make a material alteration in the contract before it was accepted.
    4. Pbincipai, and agent—proof of agency. In making proof of agency the agent may testify to statements made at the time the agency was created, but statements made by the agent at the time he acted are incompetent.
    5. Altebation of instbuments—ratification. The payee of a note contracted to repurchase the same from the holder and another signed as surety, hut the payee made a material alteration in the contract before it was accepted. In a proceeding by the payee’s trustee in bankruptcy against the surety he admitted liability on a note which was not the one in question, and in a letter to the holder of the note to be rebought he denied ever signing the contract. Held, there was no evidence that the surety ratified or recognized the contract as binding after he knew of the change.
    Action in assumpsit on written contract. Appeal from the Circuit Court of Pike county; the Hon. Habby Higbeb, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed with final judgment here.
    Opinion filed March 15, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    John Matson and Anderson & Matthews, for appellant.
    William Mumford, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

■This is an action of assmnpsit upon a written contract. The declaration contains two special counts and the common counts. The special counts set forth the written contract and a promissory note concerning which the contract was made. The note and contract are as follows:

“$2000.00 Pearl, Illinois, Apl. 27th, 1908.

Three years or before, after date, for value received, we or either of us promise to pay 0. A. Manlier, or order, Two Thousand Dollars, at seven per cent per annum from date until paid.

F. J. McWilliams, P. O. 1612 Demster st.,

Evanston, Ill.

T. A. Cramer, P. O. 639 Lincoln ave., Chicago, Ill.”

Endobsement on Back op Note:

“Manker-Heavner Navigation Co., by B. Ileavner, Treas. C. A. Manker, Prest.” “I guarantee payment of the within note waiving protest.

C. A. Mankee.” “Peabl, Ill., May 2, 1908.

Concerning a certain note of $2000.00 bearing date of Apl. 27th, 1908, given by F. J. McWilliams, T. A. Cramer, favor C. A. Manker with interest from date, we agree that upon 30 days notice from the holder of said note, to bny it from him at any time after one year from date and to pay full principal and interest, at 7 per cent, from date till time of said purchase by us.

(Signed) C. A. Mankee,

B. Heavneb. ■

Accepted:

Alonzo Leonabd.”

This contract, at the time it was signed by appellant, contained the additional clause: “and interest & prin. paid on said note to apply as part purchase, and we reserve the right to so buy said note at any time. ’ ’

Nine pleas were filed, but the case was tried on the issues made by the general issue sworn to and the eighth and ninth pleas and the replications thereto. The eighth plea avers the alteration of the instrument sued on, without the knowledge or consent of the defendant. The ninth plea is verified, and avers that defendant signed the instrument sued on as security for C. A. Manker and not otherwise; that the defendant received no part of the consideration; that after the execution of the instrument the same was altered by erasing the clause set forth, without the knowledge or consent of the defendant, and that said alteration is a material alteration. The replications to the eighth and ninth pleas aver (1) that the person who made the alteration was the authorized agent of defendant to make such alteration; (2) that after the making of such alteration defendant ratified and consented to it; (3) that defendant gave Hanker special authority to make the alteration and (4) that after the alteration was made and the contract negotiated defendant received the consideration therefor. Issues were joined on these replications. The case was tried by the court without a jury and judgment rendered for $2,442.70 in favor of the plaintiff, from which the defendant appeals.

The evidence shows that C. A. Hanker in 1901 located in the village of Pearl, twenty miles south of Pittsfield, where he opened a private bank which he ran until November 26, 1908, when the bank closed its doors for want of assets and Hanker disappeared. During this time the appellant conducted a general store in Pearl and carried a large account in Hanker’s bank. Hanker was the inventor of an impracticable motor boat, in the promotion of which Heavner became associated with him. In 1903, Hanker and Heavner organized a $9,000,000 corporation, the Manker-Heavner Navigation Company, under the laws of Arizona for the purpose of promoting this motor boat. Hanker was the president of the corporation, and Heavner was its treasurer. In 1905 Hanker and Heavner as partners opened a bank at Hillview, in Green county, with a capital of five thousand dollars, the money to start which was borrowed by Hanker and Heavner from the bank at Pearl. In a short time the Hillview bank was closed with a loss of several hundred dollars, half of which was paid by Heavner. In 1907 Hanker and Heavner under the laws of Missouri organized a corporation called the Hydro Curve Boat Company of America, which took over the so called assets of the Manker-Heavner Navigation Company. There is no proof showing for what the $2,000 note, that the contract sued on was given in connection with, was taken, unless some inference may be drawn from the fact that it is endorsed by the “Manker-Heavner Navigation Co., by B. Heavner, Treas., C. A. Hanker, Prest.” That endorsement, except the signature of Hanker, is in the writing of Heavner.

Alonzo Leonard is a broker and money loaner at Pittsfield and had prior to this transaction bought other notes from Hanker. Leonard testified that Hanker called at his office to sell him some notes, and he told Hanker that he would not buy “notes three years old;” that Hanker spoke about getting Heavner to guarantee the payment and Leonard told him he would make inquiry, and if Heavner was considered good he would buy them; that Hanker came back on Hay 4th and showed the papers to Leonard; that Leonard turned Hanker over to one Hall who was acting for him to close up the deal, if one should be made. Hall testified that, after examining the papers, he said to Hanker that he saw no reason for putting in the words “and interest & principal paid on said note to apply as part purchase, and we reserve the right to so buy said note at any time;” that Hanker said he was authorized to make any alterations to get the money and that Hanker then erased that clause and the note was bought for Leonard at a discount of ten per cent. Hall also testified that Hanker said “we are getting twenty-five per cent for negomating this stock or selling this note.”

Leonard, on Hay 3, 1909, made a demand in writing on Heavner that he buy the note under the contract. Heavner by his attorney replied to the letter of Leonard by asking him to send a copy of the contract. A copy of the contract as changed was sent to the attorney who was acting for Heavner. On receipt of such copy a reply was sent back that Heavner claimed that “he never saw, let alone never signed and never heard of any such document until mentioned by you.” This letter denied any liability under the contract.

After the absconding of Hanker, bankruptcy proceedings were started against his estate and proceedings taken against Heavner whereby he was made to refund $1,000 that he drew out of Manker’s bank the day it failed on account of $1,900 he then had on deposit in such bank, and to turn over to the trustee certain notes he claimed to hold as collateral to a $4,000 note held by him against Manlier.

Daniel Shank, one of the directors and vice-president, and the holder of about one-ninth of the stock in the Manker-ITeavner corporation, testified that he sold stock in the corporation to various parties and paid the proceeds of such sales to the treasurer; that the relations between Manker and Heavner were cordial; that they had unbounded confidence in each other; that he did not know that notes were taken for boat stock and sold to get money, he never knew Heavner to sell a dollars worth of stock; that he “never knew of or heard Heavner give Manker authority to change any written contract or notes or papers or sign his name for him,” that he knew nothing about the matter in litigation; that the stock the $2,000 note was given for belonged to Manker; and that the company never issued any stock after the contract was made with the other company; that the Manker-Heavner Navigation Co. went out of business in the fall of 1907, and was out of business in May, 1908, and this stock could not have been the company’s stock but was Manker’s stock.

Heavner testified that the signature to the contract was his but that when he signed it the last two lines were not erased as they are now; that he signed the contract as surety and received nothing on account of it; that he never authorized or directed Manker to make any change or alteration in the contract; that he never consented to or agreed to the alteration; that at the time he signed the contract he had no business relations with Manker other than that they were stockholders in the Navigation Company; and that he supposed Manker sold his stock for the note.

The first contention of appellee is that the change was not a material one and that it did not release the appellant. The proof is clear that the alteration was made by Hanker in the office of appellee when appellant was not present. Appellee knew of the alteration when he bought the note and knew that appellant was only a surety for the reason the note had been offered to him before the contract was made; that he then refused to buy it and only bought it subsequently because of the contract. The contract sued on gives the surety no right to buy the note at any time as the contract signed by him provided. The alteration took from the surety all power to protect himself until after the note which ran three years should become due, while under the contract he could redeem the note at any time. The change was a material one made at the suggestion of appellee’s agent and released the surety from his obligation unless it was made with his consent or he ratified it.

It is next contended that appellant authorized or consented to the change. The statement of Hanker to Hall at the time the agent of appellee had Hanker make the change, that he had authority to change it is not competent evidence against appellant. The rule is that agency cannot be proved by the declarations of the agent, such declarations are only hearsay. Proctor v. Tows, 115 Ill. 138; Merchants Nat. Bank v. Nichol, 223 Ill. 41. The agent may testify to the statements made at the time the agency is created, but what the agent said was incompetent and the court erred in refusing to hold as a proposition of law that the statements of Hanker were incompetent to show that he was authorized to make the alteration. There is no proof in the record that appellant ever held Hanker out to be his agent in any matter. The partnership in the bank at Hillview had been closed several years; the fact that they were costockholders in an insolvent corporation, the stock of which was all water, is. not of itself sufficient to prove an agency.

The only remaining question is whether appellant ratified or recognized the contract as binding after he knew of the change. The only evidence in the record that it is contended proves a ratification are the findings in the bankruptcy matter and the letters written by the attorney of appellant. The bill in chancery filed by the trustee of the Manlier estate, to make appellant refund assets received by him within four months of the failure of the bank, was filed April 4, 1909. Appellant answered that bill and in his answer sets up that “on or about the second day of May, 1908, he signed as surety for Manlier a certain promissory note to the First National Bank of Elliot, Iowa, and in consideration thereof Manker turned over 2,500 shares of the stock of the Hydro-Curve Boat Co. The note to the bank of Elliot is not the note the contract sued on was given to guarantee. The special master in his report in that case mentions “his liability on the Leonard contract amounting to $2,000.” The record does not show when the answer was filed or the report made; there is no proof in this record showing what appellant’s evidence was in that matter and there was no issue on his liability on the Leonard contract. Appellee by letter demanded of appellant on May 3, 1909, that he carry out the contract on his part. Appellant through his attorney replied by writing for a copy of the contract and upon receiving a copy denied that he ever saw or signed “any such document.” Heavner testifies that he first saw the document after signing it, in November, 1909, on his examination in the bankruptcy matter at Springfield, and he there said that he did not sign it in its present condition. We are unable to find any competent evidence in the record that will sustain the recovery upon the instrument which had been materially altered at the suggestion of appellee. The judgment is reversed with a judgment in this court in favor of the defendant and for costs.

Reversed with final judgment here.

Finding oe Fact: The suit is brought upon an instrument that had been materially changed without the authority of the defendant and that the defendant never consented to or ratified such alteration.


text:
    Lewis Davenport, Appellant, v. George W. Roberts et al., Appellees.
    1. Judgments—when question of title is res adjudicata. Where the grantee in a deed takes possession of land, claiming to own it under the deed, and the grantor obtains a judgment in ejectment for the possession of the same, the question whether such land was conveyed by the deed cannot be again adjudicated between the same parties in an action, by the grantee, of covenant upon the warranty deed.
    2. Covenants—nature of covenant of seizin. A covenant of seizin in a deed only extends to a title existing in a third party which may defeat the estate granted the covenantee and does not embrace a title that is vested at the time in the covenantee; he is estopped from setting up such title against the covenantor.
    Action of covenant on a warranty deed. Appeal from the 'Circuit Court of Mason county; the Hon. Guy R. Williams, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 15, 1912.
    Blinn & Covey, for appellant.
    Lyman Lacey, Jr., for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action of covenant upon a warranty deed executed May 31, 1901, by George W. Roberts and Sophie J. Roberts, appellees, to Lewis Davenport, appellant. The deed conveys twenty-eight acres off the north end of the northeast quarter of the southeast quarter in section thirty-five, township twenty-one, range seven, west of the Third Principal Meridian, containing twenty-eight acres more or less, in Mason county. At the time this deed was executed the grantee was the owner and in possession of the twelve acres, of the same forty acre tract, lying immediately south of the tract conveyed by the deed of May 31, 1901. When the deed was made there was a hedge fence three rods north of the north line of the tract conveyed, which enclosed with the tract conveyed one and a half acres off the south side of the forty acre tract lying immediately north of it. When the deed was made, appellant took possession of all the land south of the hedge fence and claimed to own it under the deed. In 1909, appellees, who owned the land north of the land conveyed by the deed of May 31st, brought suit in ejectment against appellant and recovered a judgment for the possession of the acre and a half lying next south of the hedge fence mentioned. This suit seeks to recover from appellees the value of the land recovered from appellant in the ejectment suit. It is manifest that the claim that appellees sold to appellant all the land south of the hedge, was litigated in the ejectment suit or that the prosecution of that suit should have been enjoined; it cannot be again adjudicated between the same parties.

The evidence shows that appellant is the owner and in possession of all the northeast quarter of the southeast quarter of section thirty-five. A covenant of seizin only extends to a title existing in a third party, which may defeat the estate granted by the covenantors. It does not embrace a title that is vested at the time in the covenantee; he is estopped from setting up such title against the covenantor. Smiley v. Fries, 104 Ill. 416; Furness v. Williams, 11 Ill. 229; Beebe v. Swartout, 3 Gilm. 162. There being no breach of the covenants in the warranty deed in question, the court properly directed a verdict and rendered judgment in favor of the appellees.

The judgment is affirmed.

Affirmed.