text:
    Lizzie Becket, Appellee, v. George Becket, Appellant.
    Gen. No. 5,639.
    1. Husband and wife—hill for separate maintenance. A bill which in stating the ground for separate maintenance charges that defendant deserted complainant without cause and declared that he “would never live with her again,” and which is found by the decree to be true, sufficiently alleges that the wife was living • separate and apart from her husband and is sufficient to warrant a decree of separation if supported by evidence.
    2. Husband and wife—when articles of separation will not har suit for separate maintenance. On an issue in separate maintenance as to whether articles of separation were fairly obtained and fully performed, the agreement set forth the separation and provided for the payment of $100 and a note for $400, as a settlement and satisfaction for the wife and child’s separate maintenance until the maturity of the note. There was evidence that the agreement was drawn by a lawyer in the wife’s presence, who read and approved it. The wife testified that she did not understand that it was a separation, agreement, and the lawyer was not called as a witness. Evidence was conflicting whether the $100 had been paid until the separate maintenance suit was brought and there was evidence that the wife repudiated the agreement and sought to resume marital relations. Held, a decree awarding separate maintenance should be sustained.
    3. Husband and wife—alimony. A decree in separate maintenance may order that alimony be paid to the wife or to her solicitor for her.

      4. Husband and wife—custody of child. It is proper in separate maintenance, to award the custody of a young child to the mother, where the child had been living with its mother since the separation and was cared for by her and the father had refused to assist in its care and the mother had a home and the father did not have a home.
    Bill for separate maintenance. Appeal from the Circuit Court of LaSalle county; the Hon. Edgab Eldbedge, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed June 27, 1912.
    Robert W. Olmsted, for appellant.
    McDougall & Chapman, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On January 24, 1911, Lizzie' Becket filed a bill in the Circuit Court of La Salle county against her husband, George Becket, for separate maintenance. The bill charged that they were married in September, 1901; that there were born to them, three children; that on March 9,1906, the defendant deserted her without cause or provocation, saying that he would “never live with her again,” since which time she has cared for and supported the oldest child; that after said abandonment he filed a bill for divorce in the Circuit Court of Rock Island county, and during its pendency, on order of court, paid her $15 per month until the suit was dismissed, since which time he has refused to com tribute towards the support of her or the child, although abundantly able to do so; that she has supported herself and child by washing and other manual labor. He answered the bill, admitting the marriage, the birth of the children, the separation, the commencement of the suit for divorce and the payment of the $15 per month and his ability to support his family, but denying that the desertion was without cause; and he charged that on March 9, 1906, they entered into a written agreement to live separately and made a satisfactory division of their property, which had been fully performed. She filed a replication, the proofs were heard and the court found that he deserted her without cause and has since refused to live with her, and since May, 1910, failed to contribute means of support for herself and child; that he was able to care for them, and ordered that she have the custody of the child until the further order of the court; that she was entitled to separate maintenance; that she be allowed $15 per month from the date of the decree, and that it be paid to her or to her solicitor for her.

Neither the bill nor the decree used the exact language of section 22, chapter 68, Hurd’s R. S., in stating the ground for separate maintenance, but it does charge that defendant deserted complainant without cause and declared that he would “never live with her again,” and the decree finds the same to be true. We are of the opinion that the bill sufficiently alleged that she was living separate and apart from her husband without her fault, and that the language used is adequate to warrant a decree of separation if supported by the evidence.

Appellant contends that the court erred in decreeing that appellant pay alimony to appellee or her solicitor for her, and cites Anderson v. Steger, 173 Ill. 118 in support of such contention. In that case the court found the amount due the attorney for the complainant and ordered the defendant to pay such sum to the clerk of the court for the attorney. The court said that was error, and that “any motion for allowance under the statute must be in her name, and the allowance is to be made to her, and not to the party whom she employs. * * * The right being in her, the decree of the Circuit Court should not, in any event, have been in favor of her solicitor, but should have followed the statute and required the money to be paid to her or to the clerk for her use.” In using the above language, the court was not quoting the words .of the statute, but the meaning reasonably drawn therefrom, that is, that the alimony decreed must have been either paid to her or to some one for her. Such was the order for the payment of alimony in this case, and, in our opinion, not in violation of the statute.

It is insisted by counsel that if the articles of separation were fairly obtained and fully performed, then appellee would be barred. Granting that such is the law, does the evidence show that the articles were fairly obtained and fully performed? The agreement relied on recited that they had agreed to live separately and divided their property satisfactorily and arranged for the care of the children and provided that he was to pay complainant $100 in cash and give her a note for $400 due on June 1, 1908, with interest at four per cent, as a settlement of her rights in his estate as satisfaction for the separate maintenance of herself and child from that time to June 1, 1908. The proof shows that after they were married they went to live with his father and mother and that there was trouble between appellee and appellant’s parents and with appellant. She had gone to her sister’s house after he had said that she should get out of the house or he would throw her out. When she went, she told him she was coming back, but he packed her clothes and took them to her sister’s. Appellant testified that the agreement was drawn by a lawyer in appellee’s presence. She denied that she was present and the lawyer was not called as a witness. Appellant testified that he took the agreement to her; that it was read over and approved. She testified that she did not understand that it was an agreement to live separately. He testified that he paid her $100.00 then. She denied this. He testified that he brought her clothes that she had previously picked out. She denied this.-, After the agreement was signed, he went back to his father’s house and then left. At the time appellee signed the paper she had a baby not many days old, and as the weather was cold she could not take the baby out and so could not return, but shortly thereafter she did return to his father’s house. His father objected, and she remained there but a short time. Then appellant rented a small house, procured a small amount of furniture and for a time paid her a small amount of money per month and then quit altogether. After appellant obtained appellee’s signature to the agreement he went to Bock Island. She, learning of his whereabouts, wrote to him and asked him to come back and live with her, but he wrote her that he would not. He sent this letter to Lincoln, Nebraska, and there had it remailed, evidently to conceal his place of residence. The note was dated March 9, 1906, and due June 1, 1908. This suit was begun January 24, 1911. He did not pay the note, except pérhaps some interest, until after the commencement of this suit. It will be observed that the testimony relating to the execution of the agreement and its performance is sharply conflicting, and it must be remembered that the chancellor had the parties before him and heard them testify and was able to judge of their truthfulness, and if he believed appellee’s evidence he could reasonably find that the articles of separation were not fairly obtained and not fully performed and that she had a right to repudiate them and seek to resume the marital relations with her husband; that she made such an attempt, and that he refused to again live with her.

It is urged that the court erred in granting the custody of the child to appellee. The supposed agreement provided that appellee should care for the youngest child. That child died. The child whose custody was decreed to appellee was the oldest child. The hill alleged and the evidence shows that this child had been living with appellee from the time of the separation and was cared for by her; and that appellant refused to assist in its care. He did not want the child. She was a young girl and needed the care of some suitable person. Appellant had no home. Appellee had. She was the mother, and the evidence shows that the welfare of the child would be best subserved in the mother’s care. Moreover, one of the causes of chancery jurisdiction is the care of dependent children. Clearly the court did not err in awarding the custody of the child to appellee.

Finding no reversible error in the record, the decree of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    J. I. Case Threshing Machine Company, Appellant, v. Alfred Puls et al., Appellees.
    Gen. No. 5,527.
    1. Pleading—proceeding to trial waives joinder of issues. The rule that it is error to proceed to the trial of a cause until an issue of fact is formed on each of several pleas filed does not apply where the parties voluntarily go to trial without formal issues being joined.
    2. Sales—when condition of warranty that machine must he used a certain time need not he complied with. Where a corn husking and shelling machine is bought under a contract of warranty requiring the buyer to use the machine for ten days, he, if the machine will not work at all, wastes the corn and inflicts serious injury on him, need not continue to run it for ten full days in order to have the benefit of the warranty.
    3. Sales—unavailing effort of seller to make machine meet a warranty waives the giving of notice of defects. Whether a notice to the seller of defects in a warranted machine is all that the contract of sale requires is immaterial when the seller had made an unavailing effort to make the machine work properly.

      4. Sales—when provision of contract that seller give notice of return of defective warranted machine is waived. A contract of sale of a warranted machine provided that if the machine was defective, the buyer should give notice that he had returned it to the place where he had received it. A notice was written by the agent of the seller who sold the machine at the place where the machine was originally delivered that it had been returned and also making a certain counter proposition which was rejected, but not by reason of the insufficient notice of return. The agent’s control of the agency had expired but he was still in the employ of the seller. Held, the seller was bound to know that the machine had been returned to the place where it was received, and the insufficient notice of return did not prevent the buyer abandoning the contract.
    5. Sales—when buyer of warranted machine may abandon contract of sale. Where a contract of sale of a warranted machine provides that the seller shall give it a trial and then shall give notice that it is returned as defective to the place where it was received, if the machine does not perform the duty for which it was sold and bought and the seller, after being notified, tries to make it work and fails and the machine has been placed where the buyer received it and he offers to put it on board cars one mile away from the seller, which offer is refused, the buyer has a right to abandon the contract and to have notes given for the purchase price returned.
    6. Sales—when use of defective machine does not render buyer liable. Where the seller of a warranted corn husking and shredding machine tries to make it work and fails, and subsequently sends men and a box of fixtures to repair it at a time when corn was not ready for husking and shredding, an unavailing trial for a short time by the buyer of the machine when that time arrives and the sheltering the machine from the weather will not prevent the buyer abandoning the contract of sale.
    7. Sales—when offering evidence of value of defective machine is repudiation by seller of right to have it back. Where the seller of a warranted machine sues on notes given for the purchase price and the evidence shows the machine is defective, the seller by offering proof as to what it was worth as junk repudiates any right to have the machine back, and a verdict for the value of the machine, not permitting the seller to have it back, may be proper.
    Appeal from the County Court of Boone county; the Hon, William C. De Wolf, Judge, presiding.
    Heard at this court at the April term, 1911.
    Affirmed.
    Opinion filed October 15, 1912.

      William Biester, for appellant; Cart, Upham & Black, of counsel.
    B. A. Knight, for appellees; G. E. Johnson, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

This case was before us in 158 Ill. App. 1, where a ■statement of the facts and contract out of which the suit arose may be found. The judgment was reversed and the cause remanded. Thereafter the declaration was amended by bringing into the suit the second note of the series described in that statement. To the amended declaration defendants filed a special plea. This plea was very defective and more resembled an answer in chancery than a plea at law. It was double and set up two or three defenses, one of which was a failure of consideration of the notes. A replication was filed to the special plea which is subject to the same criticism as the plea. It alleged, among other things, that the plaintiff had done all it was bound to do; that the shredder fully complied with the contract and that the defendants had not done any of the things required of them by the contract, and concluded to the country. There was no similiter to the replication. Plaintiff obtained a judgment for $20 and brings the judgment to this court for review on appeal.

As a general rule of pleading and practice it is error to proceed to the trial of the cause until an issue of fact is formed on each of the pleas filed. Seavey v. Rogers, 69 Ill. 534. This rule does not apply where the parties voluntarily go to trial without formal issues being joined. In such case the parties are treated as if they had agreed to try the case without formal issues joined or had agreed the case should be tried as if proper pleadings had been filed. Funk v. Babbitt, 156 Ill. 408; Supreme Court of Honor v. Barker, 96 Ill. App. 490; French v. Scobey, 108 Ill. App. 606; Cummings v. Smith, 114 Ill. App. 35; Seitz v. Coal Valley Mining Company, 149 Ill. App. 85; Sanitary Can Co. v. Hines, 149 Ill. App. 244; Raymer v. Modern Brotherhood of America, 157 Ill. App. 510.

The proof is very different on a material point from what it was on the other appeal. On December 3, 1906, defendant Hicks wrote plaintiff announcing the inability of the machine to do the work and tendering the machine to plaintiff, but also making a counter proposition that if plaintiff would surrender the notes defendants would give new notes dated the next fall and would then take the machine if plaintiff made it work then. The casé was decided by us before upon the point that there was no evidence of what action plaintiff took on the proposition and therefore it would be assumed that the proposition remained open till the following year. On this trial it was proved that the company promptly refused the proposition. The contract required a trial of the machine for ten days. It is claimed that defendants only tried it for eight days and therefore the warranty was not broken and under the stringent provisions of the contract defendants were without remedy. .We hold that the contract should not be construed to mean that even if the machine would not work at all and wasted the com and inflicted serious injury on defendants that they must continue to run it for ten full days in order to have the benefit of the warranty. Plaintiff’s agent assisted in the early part of the ten days trial and left without making it work and defendants notified plaintiff, and whether that notice is all that the contract required is immaterial for the reason that they sent an expert to make it work and he came and worked on it parts of two days and left without being able to make it do thé work as the contract provided. We hold that defendants were not required to work it any longer but there is evidence tending to show that they did work it for ten different days. They then returned the machine to the Wheeler farm, the place where they received it and the place where the contract required it to be returned, and notified plaintiff that the machine would not work; that they would not operate it further and that plaintiff could return the notes and have the machine F. O. B. cars at Belvidere. They also, in the same notice, made the counter proposition above stated. Plaintiff answered promptly declaring that the machine was as good as any other in that neighborhood and declining the proposition. The only respect in which this notice did not literally comply with the contract was that it did not say the machine was at the place where defendants received it, but plaintiff did not reject the proposition because of any lack of specification of the place or because the defendants offered to deliver it on board cars at Belvidere, and did not make any inquiry on that subject and waived the provision requiring notice of the place. Plaintiff was bound to know that it had delivered the machine to defendants at the Wheeler farm and. it was bound to expect that that was where it was to receive it unless it accepted the offer of defendants to have it hauled one mile to Belvidere. Hicks, who wrote that notice, lived on the Wheeler farm and had been the agent of plaintiff and plaintiff knew he lived there. Hicks’ written contract of agency had expired, but at the time the machine was delivered to defendants at the Wheeler farm he was still working for plaintiff. In our opinion, as the machine would not perform the duty for which it was sold and bought, and as plaintiff, after being notified, had tried to make it work and had failed and the machine had been placed where defendants received it and they had offered to put it on board cars one mile away for plaintiff, and plaintiff had refused the offer, defendants had a right to abandon the contract and to have the notes returned under the authority of Kingman & Co. v. Meeks, 56 Ill. App. 272, and J. I. Case Threshing Machine Company v. Ross, 149 Ill. App. 616.

In 1907 plaintiff sent a box of fixtures and one or two men to repair the machine at a time when corn was not ready for husking and shredding. When that time arrived defendants tried the machine a short time and found it would not work and did nothing further except to shelter the machine from the weather. We are of the opinion that what was done in 1907 by defendants did not affect the case.

The proof was practically undisputed that the machine would not husk and shred properly; that it wasted the corn and worked too slowly. There was, therefore, a failure of consideration for the notes. Both sides offered proof as to what it was worth as junk. By offering that proof, plaintiff sought to recover at least its value as junk and repudiated any right to have the machine back, if the consideration of the notes had failed. One witness testifying for plaintiff showed more knowledge of its value as junk than any other, and he placed the value at $20 and the jury found- that amount for plaintiff accordingly. While we might be better satisfied if the jury had found for defendants and left plaintiff to take away its machine, yet, as it offered considerable proof of its value as junk, we do not feel called upon to interfere in its behalf in that respect.

The judgment is therefore affirmed.

Affirmed.


text:
    Thomas J. Kelly, Administrator, Plaintiff in Error, v. Chicago, Rock Island & Pacific Railway Company, Defendant in Error.
    Gen. No. 5,552.
    1. Instructions—eliminating counts. An instruction that no recovery can be had under, a certain count is proper, where even if it states a cause of action it is not supported by the proof.
    2. Death—evidence of knowledge of movement of trains. Where plaintiff’s intestate was killed through the alleged negligence of defendant in backing a train down on the wrong track without notice and from the evidence it appeared that the train was often backed down on such track; that under the regulations it might be so backed to the station on any day; that the deceased took the train in question every day and knew of the custom; that there were numerous lights on the back of the train; that it was moving at about two miles per hour and that an air whistle on the train and a crossing bell were sounding as the train approached, a verdict cannot be found for plaintiff on the theory that the train was backed on the wrong track and that plaintiff’s intestate did not know it was coming on that track.
    3. Carriers—negligence. Where one on a platform to take a train falls and her leg is caught in a truck of the approaching train, and after other attempts to release her have failed it is necessary to go some distance to secure tools to dismantle the truck, the result being that she was not released until about 55 minutes had elapsed, it cannot be said that the railroad employees did not do everything they could in the unusual emergency to release her, nor that tools should have- been at hand to instantly dismantle the truck.
    4. Death—proximate cause. No cause of action is shown by evidence that deceased, whose knee was caught in the truck of a railroad coach, was not removed in less than 45"or 55 minutes, where the medical testimony is that the injuries were sufficient to cause death even if deceased had been sooner released.
    5. Carriers—notice that train is coming on other than usual track. Where one on a platform to take a train knows that it is coming on a track other than the usual one, such knowledge is sufficient notice.
    6. Carriers—when due care for jury. On action for death resulting when plaintiff’s intestate fell on a platform and was caught in the truck of an approaching train, it is for the jury to determine the question of due care; and a finding for defendant cannot be disturbed where it seems that deceased knew of the approach of the train but the evidence is extremely conflicting as to whether she was struck by the train, or was attempting to board it while it was in motion or whether she slipped on ice on the platform.
    7. Jury—when party cannot complain of selection. Plaintiff cannot complain concerning the selection of a jury where his peremptory challenges were not exhausted, and he voluntarily accepted all the jurors.
    8. Appeals and errors—certificate of trial court. It cannot be urged on appeal that jurymen were improperly selected from the city in which the accident occurred in violation of an agreement of counsel that jurymen therefrom should be excluded, where the certificate of the trial court does not show such an agreement or an intention to exclude jurors from such city.
    9. Appeals and errors—when alleged improper acceptance of jurors waived. Plaintiff cannot complain on appeal that jurors from the city in which the accident occurred were accepted in violation of an alleged agreement of counsel, where he knew as soon as the examination began that some were obtained in such city but did not object until after an unfavorable verdict.
    10. Appeals and errors—when cannot he urged that order for jurors was exhausted. Where the sheriff is ordered to summon twelve jurors and, on being ordered to bring six in soon, he summons six from the city in which the trial is held and later brings in twelve from nearby towns, it cannot be urged that the six jurors from the city were summoned after the order was exhausted, where the record does not show which jurors were served first.
    11. Appeals and errors—when question not before court on appeal. Alleged misleading answers of jurors on voir dire and the questions asked are not preserved in the record for appeal, where the certified bill of exceptions does not contain the question and answers except as they are embodied in an affidavit of plaintiff’s attorney in support of a motion for a new trial, though the examination was in open court.
    12. Appeals and errors—contents of record. What occurs in open court in the presence of the trial judge and what is done by him is within his knowledge and cannot be made a part of the record by ex parte affidavits, but must be recited in the bill of exceptions, vouched for by the certificate of the judge.
    13. Appeals and errors—making up hill of exceptions. The trial judge may refresh his recollection as to what occurred at the trial, by examining the stenographers’ notes, by recalling witnesses or jurors, or by receiving affidavits, but he must certify to the facts, and such facts can only be reviewed on his certificate as to what occurred.
    14. Appeals and errors—presumption as to reasons for denial of motion for new trial. Where a motion for new trial is denied after the filing of an affidavit alleging that one party was misled by the answers of jurors on voir dire, it will be presumed that the judge, of his own knowledge, knew that the statements in the affidavit were untrue, or that their effect was obviated by other things which occurred in open court to the knowledge of the judge.
    15. New trial—when affidavit defective. An affidavit in support of a motion for a new trial is defective where some of the charges against a juryman are hearsay and the source of the affiant’s information is not disclosed.
    16. New trial—jurors’ affidavits. Jurors’ affidavits are admissible to support their verdict.
    17. New trial—jurors’ affidavits. Affidavits by jurymen will not be received to impeach their verdict, nor will affidavits be received as to statements by jurymen tending to impeach their verdict.
    18. Jurors—qualifications. A conclusion that a juror was not disqualified and was not guilty of misconduct is warranted where the affidavits for new trial allege that such juror’s brother worked for a company in which defendant’s attorney is a stockholder, that when defendant’s attorney was state’s attorney the juror became involved in a certain difficulty but was not prosecuted, that two jurors complained of the arguments of such juror in the jury room and further that such juror stated that defendant’s attorney had not been his attorney when he was so at that time; the juror’s affidavits state that he did not know the defendant’s attorney was such a stockholder, that his verdict was not thereby influenced, that he was under no obligation to such attorney as state’s attorney, and showed no liability to criminal prosecution, that he met defendant’s attorney on the street and asked him about a certain case and was told by the attorney that he would enter his appearance and if anything more happened he would see him again and that nothing further was ever done; and affidavits of seven jurors stated that such juror was not guilty of misconduct in the jury room.
    19. New trial—when affidavit not ground for. Where an affidavit of a witness of an accident shows that her testimony would be only cumulative and not decisive, it is not sufficient ground for new trial. .
    20. New trial—when new evidence insufficient to authorize. Where deceased received injuries causing death when her knee was caught in the truck of a railway car, it being contended that she had slipped on ice on the station platform, a new trial, after verdict for the defendant, is not warranted because at the hospital a rubber overshoe was found on one of deceased’s shoes but the other was not found and the family of deceased did not disclose such facts until after the trial, since lack of diligence was shown and it does not appear that the overshoe would have had a decisive bearing on the verdict.
    21. Instructions—when notations on not harmful. Notations on instructions indicating their subject-matter are not harmful where the trial court certifies that they were not present when the instructions were given and there is no proof as to who made them or when they were made.
    Action in case for death by alleged wrongful act. Error to the Circuit Court of Will county; the Hon. Chables B. Campbell, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    John W. D’Arcy, for plaintiff in error.
    Snapp & Heise, for defendant in error; M. L. Bell, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

For several years an accommodation train on the Chicago, Bock Island and Pacific Bailway ran between Joliet and Chicago, and left Joliet at 6:40 a. m. each week day. During the night the train is stored at the Eastern Avenue yards, a half mile or more east of the depot in Joliet, and, before train time each morning, it is backed down to the depot to receive its passengers. At the depot the tracks run in an easterly and westerly direction. There are two main tracks, and the depot and platform are on the north side of said tracks. The depot is about 17 feet from the first track, and that intervening space is covered by a platform of two-inch plank which slopes two inches to the south in the distance of 17 feet. Passenger cars and their steps, on the north side of the north track, project six or eight inches over that platform and the step is about five inches above the platform. The space between the platform and the north rail is about twenty-two inches. The north track is the west-bound track, and the south track is the east-bound track. On the morning of December 16, 1909, this train was backed down to the station platform from the Eastern Avenue yards, on the north or west bound track. The train reached the depot about 6:42 a. m. Katherine Ryan had been a constant passenger on this train each week-day for about three and a half years. She lived in Joliet about one mile from the depot, and was engaged in business in Chicago. There were many people to take that train that morning, including Miss Ryan, and many of them got out upon the platform and near the track as the train was backed in. Just before the train stopped, Miss Ryan fell upon the platform in some way about which the witnesses disagreed, and her left foot and leg, and some of her clothing, were drawn up between one of the western wheels of the westernmost car and the framework of the truck. Her knee passed beyond a certain bar, a part of the frame of the truck, and her foot and that part of her leg below the knee hung free, but her knee was crushed, and the soft tissues of her abdomen and left groin were severely lacerated, and it was found that the position of her knee beyond this bar, or equalizer, or spring, prevented her being removed. Several different expedients for releasing her were tried. The local physician of the railroad company was called and he administered remedies to stimulate her heart action and to relieve her pain. She was covered with a policeman’s coat. Finally it became necessary to dismantle the truck in order to release her. From the time of the accident till she was removed from the truck was variously estimated at from 45 to 55 minutes. She was removed to a hospital and attended by several physicians, and died that evening. An administrator of her estate was appointed, who brought this action against the railway company to recover for the loss to her next of kin. Upon a jury trial there was a verdict for the defendant. A motion by plaintiff for a new trial was heard and denied, defendant had judgment, and plaintiff has sued out a writ of error to review the record.

The declaration contained eight counts. Plaintiff dismissed the second count during the trial. The court instructed the jury that there could be no recovery under the third count, and properly so, for if it stated a cause of action it was not supported by the proof. There are two other counts, as to which it is at least doubtful if they state a cause of action; but it is sufficient to say of the declaration that it contained counts covering the main grounds upon which plaintiff contends he should have recovered. Plaintiff argues that the train was negligently backed down to the station on the wrong track and without notice to deceased; that defendant was guilty of negligence in failing to have at hand sufficient appliances wherewith to dismantle the truck promptly; and that the accident was caused by the negligence of defendant in permitting ice upon the platform, and in putting out the platform light at 6:30 that morning.

Defendant usually backed this train down upon the south track and, if it had done so, this accident could not have happened at that particular place. If it be held that a cause of action can arise from an unannounced change by a railroad company of the track upon which it runs a particular train, no such case for plaintiff was made here, for many reasons. There were two cases which might arise any day, under which the rules of the company required this train to be backed down to the station on the west bound track. There was another passenger train from the west due to arrive at and leave J oliet before this train left. If that train was behind time and had not passed when ■the time came to back this accommodation train down, but was near enough so that it must be allowed to pass before the accommodation train started, then it was the duty of those in charge of the accommodation train to back it down on the north track. There was also a rule of the road that if any train broke in two, the head of the train had a right to back down to the rear portion on the same track, and no other engine or train was permitted to go between. On the morning in question a freight train going east on the south track broke in two west of Joliet, leaving the rear of Its train there, and did not stop till after it had passed this accommodation train standing in the Eastern Avenue yards. Under those circumstances, the rule of the road required those in charge of the accommodation train to back down to the station on the north track, and that was why they did so on this particular day. But further, in the winter time it was a very common thing for the* through passenger train, which should precede the accommodation, to be late and, by reason thereof, for the accommodation to back down to the station on the north track; and the proof is that for the two weeks in December preceding this accident, this train had backed down on the north track an average of four days in the week or two-thirds of the time. Deceased took this train every day and could not fail to know that for the preceding two weeks she had usually taken the train on the north track. More than all that, an engine, or train, was liable to be going west on the north track at any time and, if this train had backed down on the side track, deceased would not have been warranted in crossing the north track to reach it without first looking to see whether any train was approaching from the east on the. north track. In fact, before the train reached the station platform, the speed had been reduced to about two miles per hour; there were two “blizzard” lights on the back of the train, which are the usual lights placed in that position; there was also a lantern on the rear platform of the train, showing a white light, and another lantern, showing a red light, and a railroad employee was on the back platform with still another lighted lantern in his hand. Another employee stood on the rear platform, holding in one hand an air brake, by which he could stop the train without any action by the engineer, and in the other hand an air brake whistle, which he was continuously sounding ás he crossed Ottawa street, just east of the depot grounds, and came up to this station platform. Moreover, there was a crossing bell at Ottawa street, which was ringing. As the train.nearly reached the place where deceased was injured, the proof is that one of the men on the rfear platform of the approaching car concluded that some of the women standing on the station platform were too close to the train and called out to them to get out of the way. The passengers and employees who were witnesses all knew that this train was coming on that track. An effort was made to show that it was nearly dark, but we are satisfied from the evidence that the jury were warranted in finding that it was practically daylight, though somewhat foggy. Witnesses for plaintiff testified that deceased was looking directly at the coming train. We are of opinion that the jury must have found from the evidence that deceased saw this train and knew it was coming on the north track. If she knew it was coming on that track, no other notice was required. We are of opinion that the jury could not reasonably have rendered a verdict in favor of plaintiff, based upon the fact that the train backed down on the north track.

Defendant’s employees and others who assisted first sought to release deceased by the use of jacks, but those did not aid. Then they tried to raise or move the bar which held her knee, by the use of iron levers, but it was found impossible to get her knee past the bar. They finally sent for tools and appliances some distance away, with which they dismantled the truck. One or two witnesses for plaintiff claimed this could have been done in a very short time and with common appliances which were at hand and which' were not used, but other witnesses claimed that this could not have been done. It is clear that there was much excitement at the train and that the railroad employees were much puzzled to know how to proceed, and that for some time it was confidently expected that in a minute or two deceased would be released, and that every person in charge did everything they could think of and considered practicable. Plaintiff contends that defendant should have had right there at the depot all the appliances necessary to instantly dismantle the truck. We cannot agree with this contention. Prob, ably such an accident never before happened in the operation of any railroad. Passenger cars are built to be run with great speed and, for the safety of the passengers, the trucks are necessarily made very strong and made so as not to yield to any ordinary blow or pressure. The trucks are not built to be readily dismantled, but exactly the opposite. We are of opinion that it must be held that in this sudden emergency, so different from any other within the experience of employees of defendant, they did everything they could do to extricate deceased from her position. But further, no cause of action in favor of plaintiff is shown by the evidence by reason of the fact that deceased was not more promptly released, for the medical testimony is that the injuries to her knee, thigh, abdomen, and groin, were sufficient to produce death, even if she had not been detained so long.

The witnesses for the plaintiff differed greatly in their testimony as to the cause of the accident. Some testified that deceased stood in line with the outer edge of the incoming car, and was struck by the step and knocked down. Others testified that she slipped and then was struck by the step. Others gave testimony tending to show that deceased reached up and apparently took hold of the first handle bar, and, as the train was still in motion, was thrown thereby or lost her hold. Others saw none of these things, but testified that as the nearest end of the approaching car came opposite her she slipped and went under the train. Her leg was not run over by any wheel. There was evidence that there was snow and ice on the platform. It was zero weather and there was fog or moisture in the atmosphere, and the proof was that all the sidewalks in the city were icy and slippery that morning. Deceased walked a mile to the depot and knew that fact. The snow had been swept off the platform before the day-men in charge of the platform left the preceding evening. It lay between the edge of the platform and the first rail. There was some snow upon the platform which had been tracked upon it, but the planks were in plain sight. As engines passed along during the night, they emitted steam from the valves which dripped upon the outer edge of the platform and froze there during the night. The men whose duty it was to keep the platform clear were not out at night, except in cases of emergencies, like storms, and they were not out the night preceding this accident, and they did not go on duty till seven a. m., and had not arrived when the accident occurred, and there was on the southernmost part of the platform such ice as had accumulated from engines passing during the night, and a part of the evidence for plaintiff tended to show that deceased slipped on this ice and fell because thereof. If plaintiff has any cause of action it is because of the presence of that ice. It was for the jury to determine from this conflicting evidence whether deceased was in the exercise of due care for her own safety in being so close to the approaching train as to be struck by the front end thereof, if she was so struck, or in attempting to get upon the car while it was in motion, under all these circumstances, if she did try to get on the car while it was in motion, or in being so close to the train while it was in motion that if she slipped she would fall under it; and also to determine whether defendant was in the exercise of the care which it owed to its passengers in not removing this ice during the night. We conclude that a determination of these questions of fact upon this conflicting evidence, with the approval thereof by the trial judge, cannot reasonably be disturbed by us under the evidence. We cannot say that the jury should have found that deceased was not in the line of the train and was not struck by the front step, áRd did not seize or attempt to seize the handle bar, and fell because the car was in motion, and was in the exercise of due care in being at the place where she was while the train was in motion; nor can we say that the jury should have found that the "ice was such that defendant was negligent in not having it removed during the night. We cannot say that the jury should have found that defendant was negligent in not having a light upon that platform at that time, since the proof warranted the jury in finding that it was practically daylight. The fact undoubtedly is that the passengers, including deceased, were in a great hurry to enter the train, and they carelessly1 went to a position very close to the coming car. It cannot be known with any certainty from this evidence whether the accident happened because deceased got too close to the train and was hit by the step and was knocked down, or whether she tried to get on the train while it was moving and got hold of the bar and lost her balance, or slipped on the icy platform as she was close to the truck. It may be that a verdict for plaintiff would have been sustainable by reason of the presence of the ice, but we see no ground upon which a verdict for defendant on this subject can be disturbed under this testimony.

Upon the motion for a new trial the plaintiff contended that the jury had been improperly selected. What occurred in open court on that subject can only be ascertained from the certificate of the trial judge, for reasons hereinafter stated. From that certificate it appears that the trial of this cause was begun in the afternoon of December 12, 1910; that there were but 16 jurors in the regular panel remaining and the court so advised counsel and they consented that 12 jurors be summoned from the body of the county; that plaintiff’s attorney suggested that jurors ought not to be called from the court house or streets near by and defendant’s attorney suggested that they should not be called from cigar stores and saloons. From affidavits it appears that 12 jurors were summoned to appear on the following morning from the towns of Wilmington, Plainfield and Frankfort, each at some distance from the county seat; that during the afternoon, the jurors in the court room being nearly exhausted, the presiding judge told the minute clerk to tell the sheriff to have six of those jurors sent in soon, and that that direction was communicated to the sheriff. The latter sent men out into the city of Joliet and had six men brought in, and with those men the impanelment proceeded and 11 jurors were obtained that afternoon. On the following morning the 12 men from Wilmington, Plainfield, and Frankfort, appeared, and the first one of them called into the box was accepted as the 12th juror. Plaintiff now contends that it was the meaning and intention of counsel and the court that these jurymen should not be selected from the city of Joliet, and that these six, called on the afternoon of Monday, were brought in in violation of that understanding and order. The certificate of the court, to which we can alone look for what occurred in open court, does not show that the city of Joliet was excluded or was intended to be excluded from the territory within which the jurors should be obtained. “The body of the county” included the city of Joliet. But as soon as the examination of those six men began, plaintiff’s attorney knew that they were obtained in Joliet, and if that was in violation of his rights, he should have made it known to the court at once and not have waited till an unfavorable verdict had been returned. Plaintiff argues on the assumption that before the sheriff summoned the six men from Joliet, he had already summoned the 12 men from Wilmington, Plainfield, and Frankfort, and his writ or order had been exhausted. We find nothing in the record to sustain this claim. For all that appears it may be that the six men in Joliet were the first ones served. It was several miles in different directions from the city of Joliet to the residences of the country jurors, and there is nothing to show when they were served, except that it was in time for them to be present in court the following morning. If the men in Joliet were served first, then they were in fact a part of the number whom the sheriff had been directed to summon from the body of the county. No objection is urged to the one juror who was selected on Tuesday morning out of the 12 men who were from the country. The bringing in of 18 men when the written order was only for 12, may have been caused by the fact that the sheriff and his deputies had just taken office. The sheriff seems not to have been advised that the six men called for by the court, Monday afternoon, were intended to be a part of the 12 called for by the original order. Plaintiff did not exercise all his peremptory challenges and voluntarily accepted the jurors who tried the cause, and has no ground of complaint, under People v. Gray, 251 Ill. 431; Hartshorn v. Illinois Valley R. Co., 216 Ill. 392; Siebert v. People, 143 Ill. 571; People v. Brown, 150 Ill. App. 365, and other cases there cited.

Plaintiff contends that he was misled and deceived by the answers of the jurors, Wood and Schultz, upon their voir dire. The questions put to those jurors and their answers thereto are not contained in the bill of exceptions, except as they are embodied in one of the affidavits made by plaintiff’s attorney in support of the motion for a new trial. There is no certificate by the trial judge showing what occurred upon the examination of said jurors. The examination was in open court on the trial of this cause. What is done by the trial judge and what occurs in open court in his presence is within his knowledge and must be recited in the bill of exceptions vouched for by his certificate, and cannot be made a part of the record by ex parte affidavits. If such a practice should be tolerated, then on a motion for a new trial affidavits might be filed to show what rulings the court made upon the evidence and upon the instructions. If a trial judge does not remember what occurred, he may refresh his recollection by examining the stenographer’s notes, by recalling witnesses or jurors, or he may receive affidavits, but, when his recollection has been refreshed, it is he who must certify to the fact, and such fact can only be reviewed upon his certificate as to what occurred. Indeed, if after the filing of such an affidavit for a new trial, the court denies the motion, it will be presumed in support of the action of the court, that the presiding judge, of his own knowledge, knew that the statements in the affidavits cof what occurred in open court were untrue, or that their effect was obviated by other things which occurred in open court to the knowledge of the presiding judge. Mayes v. People, 106 Ill. 306; Peyton v. Village of Morgan Park, 172 Ill. 102; Deel v. Heiligenstein, 244 Ill. 239. We applied these principles in Holland v. People, 132 Ill. App. 449; Clark v. Hemmingson, 132 Ill. App. 619; Chicago, R. I. & P. R. Co. v. Ross, 136 Ill. App. 518; People v. Strauch, 153 Ill. App. 544. Our judgment in the latter case was affirmed in People v. Strauch, 247 Ill. 220. In that case an affidavit was filed, setting forth questions put to a certain juror and his answers and the denial of a challenge for cause. The Supreme Court said: “This question is attempted to be preserved in the record by an affidavit in support of the motion for a new trial. Under the authorities heretofore cited, these alleged occurrences, being shown only by affidavit, are not properly preserved for review here.” Under the above authorities and other cases there cited, the questions propounded to these jurors and their answers thereto are not before this court, and it would therefore be impossible for us to determine whether such answers were full and candid or deceptive, and the judgment cannot be reversed on this record by reason of said supposed questions and answers. The showing on this subject made by the affidavit of plaintiff’s attorney is defective in another respect. As to some of the charges made against the juryman, Wood, the affidavit contains hearsay only, unsupported by the affidavit of any one who knows the facts, and without a disclosure of the source of the affiant’s information. We conceive that a verdict cannot be set aside on-hearsay, but that the alleged facts should have been shown by the affidavit of some one who would testify thereto of his own knowledge.

We, however, conclude to refer to the more important of the matters complained of. The affidavit in question stated that a brother of the juror, Wood, worked for a certain printing company, and that the affiant is informed and believes that one of defendant’s attorneys is a stockholder in that company. Affidavits of jurors are admissible to support their verdict. City of Chicago v. Dermody, 61 Ill. 431. They were received and considered to support a verdict in Sanitary Dist. of Chicago v. Cullerton, 147 Ill. 385, 392. The affidavit of the juror, Wood, vías filed for that purpose. He therein stated that he did not know that defendant’s attorney was a stockholder in said company, and that he had not been on speaking terms with his brother for several years, and was not influenced in his verdict by any such consideration. The affidavit of plaintiff’s attorney stated that, after the trial, he was informed that while one of defendant’s attorneys was State’s Attorney, the juror, Wood, was involved in a difficulty, the details of which affiant was not „at liberty to disclose, and that the same was brought to the attention of said State’s Attorney, and that Wood was not prosecuted, and that affiant believed that Wood was thereby put under obligation to the State’s Attorney. The affidavit of the juror, Wood, stated the details of said matter, and showed nothing which could subject him to a criminal prosecution or put him under any obligations to the State’s Attorney. The affidavit of plaintiff’s attorney showed that several days after the trial, two of the jurors visited his office and apparently sought to explain their adverse verdict by complaining of the arguments by the juror, Wood, in the discussion of the cause in the jury room and by complaining that he talked loudly there. Not only will affidavits.by jurymen not be received to impeach their verdict, but also affidavits will not be received as to the statements made by jurymen after the verdict has been received and tending to impeach that verdict. If such statements to third parties were received, the unsworn statements of jurymen would be permitted to overcome their verdict, rendered under the solemnity of an oath. The admission of such statements would encourage the practice of tampering with jurymen after their discharge. The admission of such statements would furnish dissatisfied and corrupt jurors the means of destroying the verdict to which they had assented. Heldmaier v. Rehor, 188 Ill. 458; Phillips v. Town of Scales Mound, 195 Ill. 353; City of Chicago v. Saldman, 225 Ill. 625; Foley v. Everett, 142 Ill. App. 250; Soens v. Chicago, W. & V. Coal Co., 160 Ill. App. 467. Defendant, in support of the verdict, filed the affidavits of seven jurors and by them showed that the juror, Wood, was not guilty of any breach of duty or lack of decorum in the jury room, and also showed that the verdict was the result of a careful consideration of the verdict and a full deliberation. The principal contention as to the juror, Wood, in the affidavit of plaintiff’s attorney is that he asked said juror if one of the attorneys for defendant had been his attorney, and that he answered “No,” whereas said attorney was the attorney of the juror, Wood, at that time in a suit then pending in the County Court. The affidavit of the juror, Wood, showed that he had been sued by one Hiney, before a justice of the peace, for a small sum which he denied that he owed; that he employed one Morrill Sprague, an attorney of the Will County bar, to defend him, and after repeated continuances Sprague procured the dismissal of that suit for want of prosecution; that Hiney then sued him again before another justice and Sprague defended him and procured the dismissal of that suit for want of prosecution; that Hiney then sued him in the County Court, and he tried to find Sprague and failed, and did not know what advantage might he taken of him in the County Court, and met one of defendant’s attorneys on the street and told him about it and asked him if anything1 could be done to harm him, and said attorney replied that he would enter his appearance for Wood and if anything came-of it, Wood could see him again, and that nothing further had ever been done about the case. It was made to appear that defendant’s attorneys did file the written appearance of Wood in said case, and that on the day that this trial was completed the county judge called one of said attorneys into the County Court and the case was thereupon continued. In his affidavit, the juror, Wood, stated that said attorney had never been employed by him in any case and that he did not consider what was said between them on the street an employment, and he had paid him nothing and had never consulted him as an attorney, except in said conversation on the street. He further stated that said attorney had been employed for a debtor against whom he had a claim, and against whom he represented other claims; and he had been in the office of said attorney to adjust said claims wherein said attorney represented the opposite side from himself. He further stated that he had always been on good terms with the attorneys for both sides and that, not very long before this trial, he had business transactions with plaintiff’s attorney concerning certain real estate deals, in which both plaintiff’s attorney and himself made a profit; and that in political matters he had sometimes supported plaintiff’s attorney and sometimes defendant’s attorney. It further appeared that Wood had never served on a jury before; that he had business engagements connected with the coming Christmas season which would result in his suffering serious financial loss if he served as a juryman in this case, and that he did everything he could think of to get excused, and that if he had realized that his talk with defendant’s attorney on the street constituted the latter Ms attorney, lie would have been very glad to take advantage thereof and secure a dismissal from the case. We are of opinion that the trial judge was warranted in concluding that the juror was not disqualified by the facts above stated and was not guilty of any misconduct. As to the juror, Schultz, we think it sufficient to say that the affidavit of plaintiff’s attorney shows that on his examination he disclosed the fact, which, of course, was known to plaintiff’s attorney, that plaintiff’s attorney had three suits pending against his employer. Plaintiff had not exhausted his peremptory challenges and saw fit to take the juror, notwithstanding that disclosure. Schultz also had never served as a juror and was exceedingly anxious to avoid service. He was in fact a registered pharmacist, but did not claim an exemption on that account till after he had been accepted by both sides and the court then refused to excuse him. When all the affidavits are considered, it is a just conclusion that the jury rendered a conscientious verdict after due deliberation.

Miss Helen Maher was on the station platform at the time of this accident, intending to take passage on said train, and she was not called as a witness, and a new trial was sought on the ground that the testimony which she would give was newly discovered evidence. Her affidavit shows that she would corroborate some of plaintiff’s witnesses and contradict others. It contained no new matter, but was merely cumulative and not decisive, and on familiar principles was not a sufficient ground for granting a new trial. At the hospital a rubber overshoe was found on one of the shoes of deceased and the other rubber was not found. This rubber- overshoe was placed in the possession of the family of deceased, the beneficiaries in this suit, a few days later. They did not disclose the facts about it to their attorney till after the trial of the suit. This would not warrant a new trial, both because of a lack of diligence on the part of the beneficiaries in failing to bring forward this evidence on the trial, and also because it does not appear that the existence and condition of said rubber overshoe would have had any decisive bearing on the verdict.

Many of the instructions, as they appeared in the original record in this case, contained on their margin catch words, tending to indicate briefly the subject-matter of the instruction. The bill of exceptions made it appear that the judge gave those instructions with those notations upon them. Plaintiff’s brief here argued that those notations constituted reversible error. The existence of those notations was unknown to the trial judge and evidently to defendant’s attorneys until said brief was filed here. A continuance was then obtained and an application was made to the trial judge to amend the bill of exceptions, and there was a hearing, and the bill of exceptions was amended by striking out all said notations, and it was found and certified by the trial judge that said notations were not upon the instructions when the instructions were given to the jury. Said amendments were shown here by a supplemental record. There is no proof who made those notations nor when they were made, They were probably made by the jurymen in their discussion in the jury room. They were not harmful in their character.

Plaintiff contends that defendant’s instructions were improper, and that too many of them end by a direction to find the defendant not guilty, and that some instructions ignore some issues. We have examined the instructions complained of and find that each states a condition which, if found by the jury to exist, would require a verdict of not guilty, regardless of other issues. The case went to the jury on six counts of the declaration, stating many different grounds of liability, and defendant had a right to an instruction to meet each of those contentions. Bach instruction which directed a verdict of not guilty, was so qualified as to be correct. Complaint is made of instruction No. 14, given at defendant’s request, which stated that it was the duty of defendant to back this train far enough west so that. passengers could take the train at the station platform and not to stop at Ottawa street and compel the passengers to go there to get on. That this was the duty of defendant is apparent from sections 1 and 2 of the Act of May 23, 1877, compelling railroad companies to build and maintain depots, and also from sections 22 and 23 of the act in relation to fencing and operating railroads. The instruction was made necessary by testimony introduced by plaintiff to the effect that defendant could have stopped this train at Ottawa street or east thereof to receive passengers.

We find no reversible error in the record. The judgment is therefore affirmed.

Affirmed.


text:
    Frederick Scott, Plaintiff in Error, v. Miles Desire, Defendant in Error.
    Gen. No. 5,630.
    1. Statute of frauds—part performance. To remove an oral contract for the sale of land from the operation of the Statute of Frauds it must appear that the vendee took possession under it and made permanent and valuable improvements with his own funds.
    2. Vendor and vendee—when vendee may repudiate. To permit the vendee to repudiate an oral contract would not be a fraud on the vendor where the vendee merely took possession and paid $500 of the $3,700 purchase price and made no valuable or permanent improvements and permitted no waste except natural wear.
    3. Vendor and vendee—when vendor cannot take advantage of vendee’s failure to properly rescind. The vendor cannot take advantage of the vendee’s neglect to promptly rescind the contract and thereby retain the earnest money when the delay is caused by the vendor’s promise to cure the defect in title.
    4. Vendor and vendee—delay preventing enforcement of contract.
      Where the vendee gives the vendor notice that he does not hold himself bound and will not perform and the vendor makes no prompt assertion of his right to enforce the contract, equity considers that the vendor acquiesces in the notice and abandons his equitable right, and a comparatively brief delay is a bar.
    5. Yendor and vendee—delay by vendor in giving notice that he will enforce the contract after notice of abandonment. Where the vendee, who has paid part of the purchase price, gives the vendor notice that he will not perform because merchantable title was not furnished, even if the vendee could have been compelled to perform in the first place, he has a right to repudiate where the vendor does not advise him that performance will be insisted on until more than three months after such notice.
    6. Appeals and errors—when freehold involved. The appellate court may take jurisdiction on the assumption that a determination of whether a freehold is involved is not required, where neither party raises the question and complainant seeks to compel performance of an oral contract to purchase land but the defendant alleges that no merchantable title was tendered until more than a year after time for performance, that notice to rescind was given, and that complainant did not act thereon for more than three months.
    7. Specific performance—affirmative relief. Where specific performance of a contract to purchase land is denied, defendant cannot complain that complainant was not required to refund the difference between the amount paid under the contract and the amount collected in rents, where no cross-bill is filed or affirmative relief asked in the answer.
    Bill for specific performance. Error to the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    White & Tuesburg, for plaintiff in error.
    A. C. Norton and F. A. Ortman, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

Plaintiff in error, hereinafter called plaintiff, owned certain real estate in Chatsworth, Illinois, on which there was a livery barn. On February 25, 1909, he advertised the same for sale subject to a mortgage of $2,500, the purchaser to pay $500 cash on the day of sale, and the balance ten days from that date on delivery of the deed and abstract, possession to be given On the date of sale upon receipt of contract and payment of the $500. Defendant in error, hereinafter called defendant, bid off the premises at the sale for $3,700 and paid $500 down and took possession. On the day named in the notice of sale, plaintiff tendered defendant a warranty deed and abstract of the property. Defendant refused to accept the deed on the ground that the abstract showed that one Sterling St. John of New York state had an outstanding claim of title in the property, but said to plaintiff, “You give us a good title and we will pay you the money.” Plaintiff corresponded in a leisurely manner with persons who were supposed to represent or be in some way connected with St. John, and on May 4, 1909, definitely learned that a deed perfecting the title could not be obtained from him. This was seven days before the first day of the May Term, 1909, of the Livingston County Circuit Court, and too late to file a bill to quiet title returnable at that term. He, however, filed a bill for that purpose returnable to the October Term, 1909. On October 22, 1909, St. John demurred to the bill and on December 1, of the same year, waived the demurrer by filing an answer, claiming an interest in the property. The cause was referred to the master and he heard the proof and filed his report on July 6, 1910. On July 14,1910, a decree was entered on the master’s report finding that St. John had no title or interest in said land and quieting plaintiff’s title. St. John appealed from the decree and filed an appeal bond and later gave plaintiff a quitclaim deed to this property. Defendant collected $445 for rent and on June 13, 1910, nearly sixteen months after the day of sale, and a month before the decree, served upon plaintiff a notice stating that he had not received an abstract showing merchantable title in the property; that he rescinded the sale, tendered possession of the property, and demanded the return of the difference between the cash payment and the amount of the rent collected by him, and abandoned the premises. On September 28, Í9Í0, plaintiff tendered defendant a warranty deed and abstract showing the proceedings to quiet title and the quitclaim deed from St. John, which tender was refused. On September 30, 1910, plaintiff filed a bill in the Circuit Court of said county against defendant to compel him to specifically perform the agreement and pay the remainder of the purchase money with interest, and offered to execute a deed of the property on receipt of such payment. Defendant answéred, setting up the cloud on the title, averring that he had used the rents to reimburse himself for the cash payment, and alleged that plaintiff knew of the refusal of St. John to execute the deed more than thirty days before the first day of the May term, 1909, of the Circuit Court, but neglected to file a bill in time for that term; that reasonable diligence was not used in removing the cloud, and that defendant had lost several opportunities to sell the property because of this cloud; that when he gave the notice to rescind, plaintiff did not have a merchantable title, and that after the notice plaintiff did not advise him that he would insist on his taking the property until more than three months later. There was a replication to the answer and a reference of the cause to the master. The master heard the proofs and reported, recommending that the court decree that the defendant pay to the plaintiff the amount due on the contract upon delivery to him of a good and sufficient conveyance and abstract of title to said premises. The court sustained defendant’s exceptions to the master’s report, and dismissed the bill for want of equity. This writ of error was sued out to review the decree. . .

■ It is contended that the contract was within the statute of frauds ¿nd therefore of no force and effect, and that there was not sufficient part performance to take it out of the statute. The contract was oral and not enforceable in equity unless it had been so far performed by plaintiff that to permit the defendant to repudiate it would be a fraud. Morrison v. Herrick, 130 Ill. 631. To prevent the statute being a bar to an oral contract for the sale of lands, it must appear that the vendee acted upon it by taking possession under its terms, and made permanent and valuable improvements with his own funds. Standard v. Standard, 223 Ill. 255. The defendant took possession and paid $500 of the $3,700 purchase price, made no valuable or permanent improvements, and permitted no waste except the natural wear and tear, and to permit him to repudiate it would not be a fraud upon plaintiff under the authority of Morrison v. Herrick, supra. The vendor of land cannot take advantage of the purchaser’s neglect to promptly rescind the contract when such delay is caused by the vendor’s promise to cure the defect in the title and thereby retain the earnest money. Lancaster v. Roberts, 144 Ill. 213. The tender of a merchantable title was not made until a year and seven months after the sale, although the advertisement was to the effect that such title was to be tendered within ten days. The evidence shows that defendant bargained for the property with a view of selling the same and that owing to the delay of plaintiff in furnishing him with a merchantable title he lost several opportunities of selling it. The quitclaim deed from St. John gave plaintiff a merchantable title which he could just as well have obtained a year and a half before. If one party gives the other notice that he does not hold himself bound to perform and will not perform thé contract, and the other makes no prompt assertion of his right to enforce the contract, equity will consider the latter as acquiescing in the notice and as abandoning his equitable right. So long as he takes no action he is, in fact, exercising his option to consider the contract abandoned, and in such case a comparatively brief delay will be a bar. 36 Cyc. 728. The proof supports defendant’s averment that plaintiff did not advise him that he would insist on his taking the property until more than three months after he had notified him that he rescinded the contract. We think, then, even if defendant could have been compelled to perform the contract in the first place, plaintiff’s delay was so unreasonable that defendant had a right to repudiate the contract.

We take jurisdiction of this cause on the assumption that we are not required to determine whether or not a freehold is involved, as neither party has raised the question here.

Defendant’s assignment of error that the court erred in not decreeing that plaintiff refund $55, the difference between the amount paid by him and the amount received in rents, has no foundation for the reason that he did not file a cross-bill nor ask for affirmative relief in his answer.

The decree must be affirmed.

Affirmed.


text:
    Ford J. Allen, Appellant, v. Eva L. Allen, Appellee.
    Gen. No. 5,634.
    1. Husband and wife—wife’s domicile. The wife’s domicile follows that of the husband, where he secures sufficient accommodations and offers her a home.
    2. Divorce—when evidence tends to show desertion hy wife. On suit by the husband for divorce on the ground of desertion, the evidence tends strongly to show desertion by the wife for more than two years without cause, where the parties have been separated for more than two years; the husband testified, that he told the wife that she would be welcome at his new domicile, but that she refused to leave her mother; the wife admits that he' offered her a home, that she never sought to resume marital relations and that she told her husband that she was willing to take half the blame of the separation; and it was stipulated that three witnesses, if present, would testify that she stated that the fault was more hers than her husband’s.
    3. Divobce—alimony. On remand of divorce proceedings brought by the husband, an order for alimony retained on the first dismissal of the bill will he within the control of the court, whether it was permanent or pendente lite, and it must he presumed that the court’s holding will conform with the requirements of the statute and the equities of the cause.
    Divorce. Appeal from the Circuit Court of Lake county; the Hon. Chables Whitney, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded with directions.
    Opinion filed October 15, 1912.
    Castle, Williams, Long & Castle, for appellant; Howard P. Castle, of counsel.
    Frederick Z. Marx, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On November 17, 1911, Ford J. Allen filed a bill for divorce against his wife, Eva L. Allen, in the Circuit Court of Lake County charging desertion. She answered the bill, admitting that they were living apart, but claiming that her husband deserted her and charging him with habitual drunkenness and ill treatment, to which a replication was filed. There was a trial and at the close of complainant’s proof the court made an order for alimony and solicitor’s fees and dismissed the bill. Later the court set aside the decree dismissing the bill, leaving the order as to alimony standing, set the cause for hearing and heard other evidence, and dismissed the bill for want of equity, and this appeal is prosecuted to review the last decree.

• The evidence shows that the parties were married June 12, 1907. He was then fifty and she twenty-five years of age. Soon after their marriage they went to live in Barrington, Lake County, Illinois, where they remained for several months, occupying furnished rooms. Their relations there were pleasant and their accommodations sufficient. They then went to Park Bidge, where the parents of appellee resided, and built. and lived in a temporary house on the lot adjoining the residence of appellee’s parents. The relations of the parties were pleasant until about six months prior to the separation, which occurred November 4, 1909. Their trouble was principally about appellant’s daughters, by a former marriage, who also lived in Park Bidge and for his disinclination to account to her for his whereabouts while away, ostensibly on business. Appellant then arranged for the quarters they had previously occupied in Barrington and went to live there and has lived there ever since. There is some controversy in the evidence as to what was said by the parties when they separated. Appellant testified that when he left he kissed her good-bye and told her that she would be welcome to come to him at any time in Bafrington, and that she said, when he asked her to move away to some other place from her folks: “I won’t do it. I won’t leave my mother; I am going to stay right here. ’ ’ She testified that he told her he was going to their former home in Barrington and if she ever needed him to call for him. She admitted that he offered her a home and that she went to Barrington several times and often met him on the street but that she has never sought to resume their former marital relations. There was a stipulation that three witnesses if present, would testify that appellee told them that the fault of the separation was more her’s than her husband’s. Appellee at first denied this statement, but afterwards admitted that she told appellant that she was willing to take one-half the blame.

In Davis v. Davis, 30 Ill. 180, the general and well recognized rule of law was announced that the domicile of the husband is that of the wife and in Ashbaugh v. Ashbaugh, 17 Ill. 476, the court said: “In contemplation of law the husband and wife are one person, and her residence follows that of the husband. ’ ’ A gain in Cooper v. Beers, 143 Ill. 25, it is said that the husband’s domicile is the wife’s domicile and her domicile changed with his throughout their married life. Citing Story’s Conflict of Laws (4th Ed.), sec. 46, and note 1, p. 58; Davis v. Davis, supra; Kennedy v. Kennedy, 87 Ill. 250. No case has been called to our attention announcing a different rule where the common law obtains. This then made appellant’s new domicile appellee’s domicile and the evidence strongly tends to show that she deserted him for the period of more than two years without just cause. We therefore conclude that the case ought to be tried again.

The order for alimony, retained on the first dismissal of the bill, was not appealed from. Whether it was permanent, as contended by appellant, or but pendente lite, as admitted by appellee, it will be within the control of the court on the remandment and reinstatement of the cause and we must assume that the holding of the Circuit Court on that subject will be in conformity with the requirements of the statute and the equities of the cause.

The decree of the Circuit Court is reversed and the cause remanded with the direction that the order dismissing the bill be vacated and the cause redocketed.

This cause was decided in this court before Whit-net, J., became a member thereof, and he took no part in its decision.

Reversed and remanded.


text:
    Mathew Donaldson, by Magdalen Donaldson, his next friend, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 5,636.
    1. Negligence—trespassers. The owner or occupier of premises owes no duty to a trespasser except to do him no wilful or wanton injury.
    2. Negligence—duty toward children. The fact that a trespasser on a railroad track is a child six years of age, adds nothing to the duty of a mining company which conducts cars of coal over such road.
    3. Negligence—when wanton injury to trespasser not shown. A declaration which avers that a servant of a mining company, who conducted loaded cars down an incline, saw plaintiff, a child, on the track, in time to prevent the accident, but negligently and wantonly injured, him, is not supported by the preponderance of the evidence where plaintiff was trespasser, and it seems that the servant saw some children playing near the track while he was some distance away, but could not see that plaintiff was on the track at the time of the accident, because he was at the brake at the rear of the car.
    4. Negligence—trespassers. Children playing around tracks over which a coal mining company takes loaded cars are trespassers, where the company has made attempts to keep people away by posting notices and by driving them out.
    5. Mines and minees—when cause of action exists. There can be no cause of action under the mining act, where the one injured was a trespasser and not employed by the company and was not injured at a part of the mine.
    6. Negligence—attractive nuisance. The theory of attractive nuisance is properly withdrawn from the jury where it appears that there is a stone wall around the alleged attractive premises, over which children climbed to take coal, that the premises are in a narrow valley not visible from the residence part of the city, and that the injured child could not see the place where he was injured until he became a trespasser.
    7. Appeals and ebrobs—One who alleges error must show it by the abstract.
    8. Evidence—when transcript of plaintiffs testimony at former trial not competent. On action for personal injuries where the plaintiff is a witness and states all he remembers of the circumstances, the official reporter’s transcript of his testimony on a former trial of the cause is not competent when offered by plaintiff.

      Action in case for personal injuries. Appeal from the Circuit Court of Bureau county; the Hon. Samuel C. Stough, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the April term, 1912.
    Reversed.
    Opinion filed October 15, 1912.
    J. L. Spaulding and J. L. Murphy, for appellee.
    Mastín & Sherlock and G-eorge S. Skinner, for aplant; Frank Crozier, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

For many years appellant has operated a mine at Spring Valley,, from which coal is raised into a tippling house and loaded into open cars and box cars on tracks which run through appellant’s premises in an easterly and westerly direction and connect with a branch of the C. & N. W. Ry. After a car is loaded and weighed it is bumped out by the next car and runs down an incline in a northeasterly direction to a point where it is left to be hauled away by the railroad company. A servant of appellee, called a trimmer, is in charge of this car and when it is at the right distance from the scales he stops it and goes back for the next car. When the next car strikes a loaded open car, coal is frequently jarred off. It has been the practice of women and children to pick- up coal along these tracks and carry it away and sometimes to even get upon the cars and throw the coal off. Although appellant has made repeated attempts to keep them off its premises by posting warning signs, by driving them away, by having them arrested and fined, they were frequently there from 5 o’clock in the morning until after dark.

On November 16, 1901, Heilgeist, the trimmer, took a loaded, open car down the incline to a point about three hundred feet northeast of the scales, set the brake, went back and came down with a loaded box car. When this car left the scales, appellee, then six years of age, and two little girls were playing around the tracks about 120 feet northeast of the scales. One of the little girls was pushed off the track by this car and appellee was thrown down and one of the wheels passed over his leg, crushing it. On February 2, 1903, he, by his father as his next friend, brought suit against appellant in the Circuit Court of Bureau county to recover for such injuries. A judgment for $250 was entered by agreement, half of which was received by the father and the other half retained by the attorney. On August 11, 1903, by the same next friend, he instituted another suit for the same injuries against appellant and the C. & N. W. Ry. Co. November 3, 1903, he filed a motion to set aside the judgment in the first suit, which motion was overruled. The suit of August 11, 1903, was dismissed for want of prosecution. On December 23, 1903, by the same next friend, he filed a bill in chancery asking that the judgment be set aside and for a new trial. A decree was entered and appealed from by appellant to this court and that part of the decree granting appellee a new trial was sustained. Spring Valley Coal Co. v. Donaldson, 123 Ill. App. 196. On December 9, 1905, he commenced a new suit in the Circuit Court of Cook county on the same cause of action, which was dismissed on September 1, 1906. On the same day he, by his mother as next friend, began suit in the Circuit Court of Bureau county for the same injury, against appellant. On the trial he took a non-suit. On March 6, 1908, by the last named next friend, he brought suit in the same court against appellant, which was dismissed for want of prosecution. On July 23, 1908, by the last named next friend, he brought this suit against appellant in the same court upon the same cause of action and filed a declaration containing nine counts. On the trial, at the close of all the evidence, the court directed the jury to find appellant not guilty as to all the counts excepting the fifth. The jury returned a verdict of $8,000 for appellee. Motions for a new trial and in arrest of judgment were overruled, judgment was entered on the verdict, from which this appeal is prosecuted.

The fifth count described the mine and its surroundings and the method of handling cars, and charged that appellant’s servants saw appellee on the track in a position of danger in time to prevent the accident and averred that through their negligent and wanton conduct appellee was injured.

It is clear that appellee and the other children were trespassers, and even if appellant had not tried to keep them away, they would be merely licensees at the very most. The general rule is that the owner or occupier of premises owes no duty to a trespasser except to do him no wilful or wanton injury. 3 Elliott on Railroads (2nd Ed.) sec. 1253, note 49. It is not under greater obligation to anticipate the presence of children upon its premises than of adults. Chicago & W. I. R. Co. v. Roath, 35 Ill. App. 349. The tender years of appellee added nothing to the duty of appellant. In actions for injuries to children, as in other cases, there can be no recovery unless the defendant has been guilty of a breach of duty. 2 Thompson on Negligence, sec. 1805. In order, therefore, to establish a cause of action under the fifth count, it was necessary for appellee to prove that appellant’s servant, Heilgeist, knew that the children were on the track and liable to be hurt and knowing that, did not try to stop the car. The proof shows that after he left the scales he saw the children along the track near the open car. Two witnesses for appellee, who were about 10 years of age at the time of the accident, said the brake was on the northeast or forward end of the car as it went down the incline, and that Heilgeist was at the brake. One witness for appellee, who was about fifteen years of age at the time of the accident testified on cross-examination that the brake was at the southwest end of the car. If Heilgeist was on the forward or northeast end of the car, he might have seen appellant if he had looked. Four witnesses for appellant, Lynch, the car handler; Morrison, the foreman; Baiter, the weighman, and Heilgeist, testified that the brake was on the west or rear end of the car. If that was a fact, and Heilgeist stood at the brake, where all the witnesses place him, he could not see appellee. A clear preponderance of the evidence is that the brake was on the rear end of the car. Two witnesses, who were 10 and 12 years of age respectively at the time of the. accident, testified that appellee was on the track as the car left the scales, but an examination of. their testimony shows that they did not know whether appellee was standing on the track or playing about it with the other children. The only evidence that appellee was standing on the track was given by one of appellant’s servants, who testified that he saw appellee and the little girl standing on the track when the car was about three feet from them but that he was so far away that he could render no assistance. Heilgeist swears positively that he did not see appellee on the track. There is nothing in the evidence tending to indicate that Heilgeist’s instincts of humanity would not have led him to try to stop his car if he had known that appellee was in danger. The only reasonable conclusion that can be drawn from the evidence is that appellee was playing about the tracks with the other children and came upon the track' suddenly a short time before he was struck and at a point where he could not be seen by Heilgeist. As appellant owed him no duty to be on the lookout for him, and as Heilgeist did not see him, appellant is not guilty under the fifth count. With all the counts except the fifth withdrawn from the consideration of the jury, we must assume that their verdict was based upon the charge that appellant’s servant wantonly ran the car onto appellee, and such a finding is manifestly against the weight of the evidence. It is therefore our conclusion that the judgment must be reversed.

We are also of the opinion that the canse ought not to be remanded unless a cause of action could be maintained under some of the other counts, and this brings us to a consideration of the cross-errors.

The first, second, third, eighth and ninth counts alleged a violation of the mining act in force 1901, prohibiting children under 14 years of age from doing manual labor in and about any coal mine. Some of these counts seem also to be based on the statute which forbids the employment of children of tender age. It is indeed illogical to claim that appellant which had, in many ways, used efforts to keep the children off its premises, was employing this six-year-old boy in violation of the statute. There could be no cause of action under the mining act, because appellant did not employ appellee, and he was there against appellant’s will and also the place where appellee was hurt was not a part of the mine and was not subject to the mining laws. Rogers v. St Louis-Carterville Coal Co., 254 Ill. 104. The fourth, sixth and seventh counts sought to hold appellant liable on the ground that its premises constituted an attractive nuisance and that it was its duty to so fence and guard the place that children could not get upon its tracks. There was proof that there was a stone wall around the tippling house and other of its buildings, over which the children were in the habit of climbing in order to get into appellant’s premises for the purpose of taking the coal. There was also proof that appellant’s premises were in a deep and narrow yalley and not visible from the residence part of the city. Appellee lived some distance from the place where he was injured and could not see it and could not be attracted to it until he had become a trespasser. Having become a voluntary trespasser, he could not become anything else by finding an attraction after he got on the premises. No case has been called to our atttention where the doctrine of attractive nuisance has ever been applied to any machinery on premises in actual use by the owner. To employ the language used by counsel for appellant, “It has been restricted to things not in use—to things at rest, to things so situated that they hold out an unusual inducement to play (not to steal).” If this railroad track, away from any highway, away from any residence, is to be made subject to the law of the turntable cases, then it would be impracticable for any railroad to operate in this country. While appellant was not a railroad company, yet it was using a railroad track and cars in the conduct of its business. To ask the courts to impose on the owners of such enterprises a duty to save trespassing children from harm, is asking the courts to impose on such owners a duty which the laws of nature and the laws of the land impose on parents. We are of the opinion that there was no error in withdrawing these counts from the consideration of the jury.

Appellee sought to prove by two witnesses what Heilgeist said after the accident. One alleging error must show it by an abstract. We cannot tell from an examination of either the original or additional abstracts whether the supposed remark by Heilgeist would tend to establish appellant’s liability. Counsel asked Heilgeist on cross-examination if he did not make the supposed remark and Heilgeist denied it. Appellee could have thereafter offered that proof for the purpose of impeaching Heilgeist, but did not do so.

Appellee was a witness on this trial and testified that he did not remember when he got hurt. He stated all that he remembered of the circumstances. Appellee then offered and the court refused the official reporter’s transcript of his testimony on a former trial. The former testimony does not appear in the abstract, so that we have no means of knowing that he testified to anything at the former trial that was not covered in the present trial. We know of no legal principle upon which such transcript would be competent.

We-therefore conclude that the case should not be remanded on the cross-errors.

The judgment is therefore reversed.

Reversed.

Finding of facts to be incorporated in the judgment: We find that appellee was a trespasser upon the premises of appellant, or at least a mere licensee thereon; that appellant owed him no duty except not to wantonly injure him, and that the servant of appellant in charge of the car by which appellee was injured did not know of appellee’s presence on the tracks, and did not wantonly or intentionally run upon him, and that under the facts, appellee has no cause of action against appellant for the injury he sustained.