author: Mr. Justice Harris

text:
    The People of the State of Illinois ex rel. J. R. Whightsel, Appellant, v. The Jasper County Mutual Telephone Company, Appellee.
    Mandamus, § 129

      —when petition filed against mutual telephone corporation by a subscriber demurrable. A petition by a subscriber of three shares of stock in a mutual telephone corporation for a writ of mandamus to compel the corporation to give petitioner free telephone service, the same as it gives other subscribers for three shares of stock, and to compel it to establish a principal office, keep correct books of account and to permit petitioner to examine the records and books of account, held demurrable, there being nothing but a mere conclusion of the pleader that petitioner complied with the by-laws, rules and regulations, without setting out the same, and no averment that any demand was made upon the corporation to establish a principal office, keep correct books of account and to permit petitioner to examine the records and books.
    Appeal from the Circuit Court of Jasper county; the Hon. Albebt M. Rose, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1914.
    Davidson & Fithian, for appellant.
    Gibson & Walker, for appellee.

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

   Mr. Justice Harris

delivered the opinion of the court.

This is an appeal from the judgment of the Circuit Court of Jasper county, sustaining a demurrer to the amended petition of appellant for writ of mandamus, entering of judgment dismissing petition and for costs.

The substance of the allegations of the amended petition are: That appellee is a corporation organized for pecuniary profit under the Corporation Act of the State of Illinois, March 7, 1902, for the purpose of building and operating a telephone system in Jasper county, Illinois, with a capital stock of $4.992; 416 shares at $12 per share and non assessable; that from the sale of stock lines were constructed and the telephone system operated.

Appellant, one of the original subscribers for three shares of the capital stock, paid therefor the sum of $36, and received from appellee his certificate of stock, a copy of which was attached to the petition. That at the time appellant subscribed for his said three shares of stock it was represented to him that said stock was non assessable, and that by-laws, rules and regulations would be enacted providing that each subscriber of three shares of stock would be entitled to the use of the telephone in his residence and the use of the lines of the system free from further assessment, charge or cost except the upkeep of the telephone instrument equipped with a transmitter and receiver in his residence. That relying on these representations he subscribed, paid for and received the certificate aforesaid of the capital stock of said Company. That he was elected a director, and, as such director, knows that by-laws, rules and regulations were enacted by the constituted authorities in compliance with the representations made to him. That appellant obtained, under the by-laws, rules and regulations of said corporation, a telephone and the telephone service offered by said Company until some time in the year of 1912, when he was refused by said Company further service over its said lines, and the said Company still does refuse although repeated demands for said service have been made.

That appellant has complied with all reasonable rules, regulations and by-laws of said appellee, and is still ready and willing to comply with all reasonable rules, regulations and by-laws of appellee. That he is without telephone service and without enjoyment of the full benefits from the stock owned by him. That appellant is one and the same person as Robert Whightsil appearing on the records of said Company.

The amended petition further alleges that it was the duty of the appellee to establish and maintain a prineipal office and place of business in this State and to keep at said principal office correct books of account of all its business. That appellee does not maintain a principal office and keep correct books of account. That in the articles of incorporation the corporation’s office was stated to be in the office of the Circuit Clerk in the courthouse in Jasper county, Illinois. That appellant at different times and occasions during its business hours has been at the office of circuit clerk of the said Jasper county to see and examine the books of said corporation but has always been unable to find any books in charge of said office; and by reason whereof appellant believes that appellee does not keep correct books of account, and that appellant is unable to ascertain the true status of account of appellee.

The prayer of the petition is for writ of mandamus commanding appellee to give appellant the use of its lines and telephone service that it gives to other subscribers, with three shares of stock, who comply with the reasonable by-laws, rules and regulations.

That appellee be further commanded to establish a principal office and keep a correct set of books of account, and that appellant have access at all reasonable times to examine the records and books of account of appellee.

Appellant having elected to stand by the amended petition, the judgment of the trial court brings before this court the sufficiency of the petition.

The demurrer admits all facts in the petition that were well pleaded but not conclusions. This is a proceeding where private rights are involved. “That is to say, the right of appellant to the full enjoyment of the benefits as the owner of three shares of capital stock of appellee and that right enforced by mandamus. (Venner v. Chicago City Ry. Co., 246 Ill. 170).”

“A writ of mandamus is a writ of right and will be awarded only in a case where the party applying for it shows a clear right to have the defendant do the thing which he is sought to be compelled by mandamus to do. The petition must show upon its face a clear right to the relief demanded and every material fact upon which petitioner relies must be distinctly set forth.” (Lavalle v. Soucy, 96 Ill. 467.) “The pleader'must plead the facts from which the legal conclusion of that' right may be drawn by the Court, and not alone by the pleader.” (Stott v. City of Chicago, 205 Ill. 281).

Appellant, when he became a subscriber of the capital stock of appellee, became and was subject to the same laws, rules and regulations as appellee, the by-laws, rules and regulations lawfully in force were a part of the contract he seeks here to enforce and in his petition for writ of mandamus it devolved upon him to set out such by-laws rules and regulations, and the facts showing a compliance with them or the reason for not complying so that the Court could determine that he had complied therewith or had good and lawful reason why he should not comply.

This is not accomplished by saying he complied with all reasonable by-laws, rules and regulations which is the conclusion of the pleader and from which the court cannot determine what were the by-laws, rules and regulations of appellee.

Appellant’s position upon the second proposition, the establishment of a principal office and keeping of correct books of account cannot be sustained because as a general rule, and more particularly true where the proceeding has relation to private rights, previous to making application to the court for a writ of mandamus, a demand or request to perform it, must be made by the petitioner to defendant, who must have by actions or express refusal refused to comply with the demand. (People ex rel. Thatcher v. Village of Hyde Park, 117 Ill. 468).

There appears no averment in the petition that a demand was made upon appellee by appellant to establish a principal office or keep correct books of account, or for the right by appellant to examine the same. There are no facts averred from which the court can say that a demand could not be made or that it would not have been availing.

The petition was insufficient and the demurrer properly sustained.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Frank Jackson, Appellee, v. Toledo, St. Louis & Western Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Fayette county; the Hon. Albebt M. Rose, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Petition by F. M. Guinn for an attorney’s lien under section 55, ch. 83, R. S., J. & A. ¶ 611. Petitioner represented Frank Jackson in a suit against Toledo, St. Louis & Western Railroad Company and served notice of his employment by Jackson on an attorney for the Railroad Company. From a judgment in favor of petitioner for $62.50 attorney’s fees, the Railroad Company appeals.
    C. E. Pope and Arthur Roe, for appellant; Charles A. Schmettau, of counsel.
    F. M. Guinn, for appellee.

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

   Mr. Justice Harris

delivered the opinion of the court.

Abstract of the Decision.

Attorney and client, § 134 —upon whom notice for attorney’s lien must he served. Section 55, ch. 83, Hurd’s R. S. J. & A. ¶ 611, providing that notice for attorney’s lien shall be -served upon the party against whom the attorney’s client may have suit, means that the notice must be personally served on the party against whom summons would issue, and the personal service of such notice should follow the law as to service of process where the party is a corporation.


text:
    Harding & Miller, Appellee, v. C. A. Sharpe, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Wabash county; the Hon. William H. Green, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Action by Harding & Miller, a corporation, against C. A. Sharpe in replevin to recover possession of a certain piano stool and scarf. From a verdict and judgment finding the right of property to be in plaintiff, defendant appeals.
    H. M. Phipps, for appellant.
    E. B. Green and Theo G. Risley, for appellee.

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

   Mr. Justice Harris

delivered the opinion of the court.

Abstract of the Decision.

Sales, § 436 —when seller entitled to possession as against chattel mortgagee. Where a corporation sold a piano stool and scarf to certain individuals and received their obligation to pay therefor in instalments and on default in payment the seller returned to the purchasers their obligation and took possession of the property after the purchasers gave a third party a chattel mortgage but before it was recorded, held in replevin by the seller against the mortgagee, who had possession of the property, that a verdict and judgment for the plaintiff was proper for the reason that neither the plaintiff nor the defendant at the time plaintiff took possession of the property had a lien thereon which was valid against other lien holders and that the defendant was not in a position to complain.


text:
    William U. Halbert, Administrator, Appellee, v. Trader’s Live Stock Exchange, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Bill by William • U. Halbert, administrator of the estate of Frank Moonan, deceased, against Trader’s Live Stock Exchange to recover the value of a certificate of membership belonging to deceased at the time of his death. From a decree finding in substance that the material allegations of the bill had been proved and that complainant was entitled to the relief prayed, defendant appeals.

      The statement of the allegations of the bill and the sufficiency of the allegations were before the Appellate Court in 173 Ill. App. 229. The further proceedings in the cause were upon the filing of the remanding order in the court below at the November term, 1912.
    Whitnel & Browning, for appellant.
    E. W. Eggmann, for appellee.
    Abstract of the Decision.
    1. Boards of trade and exchanges, § 54

      —when decree awarding recovery for conversion of membership certificate sustained by the evidence. On bill filed by an administrator of a deceased member of a live stock exchange against the exchange to recover the value of a membership certificate belonging to the deceased, alleging that the exchange wrongfully and without authority obtained possession of the certificate and canceled the same after the death of the deceased, held that a decree for the complainant was sustained by the evidence.
    2. Boards of" trade and exchanges, § 54

      —right to maintain suit in equity for conversion of membership certificate of deceased member. On bill by an administrator of a deceased member of a live stock exchange against the exchange to recover for the conversion of a membership certificate, held immaterial so far as the right to maintain the suit is concerned whether claims had been presented, filed and allowed against the estate of the deceased.
    3. Appeal and error, § 389

      —when objection that the facts proved do not show jurisdiction in chancery is waived. On bill to recover for the conversion of a membership certificate in a live stock exchange, held that the case did not belong to the class of cases in which the court should raise of its own motion the question whether, from the facts proved, it had jurisdiction of the subject matter, but that the case belonged to that class where such a question is waived in the absence of objection in the trial court.

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

   Mr. Justice Harris

delivered the opinion of the court.


text:
    C. N. Streeper, Appellee, v. Mutual Protective League, Appellant.
    1. Insurance, § 747

      —when subsequent by-law of benefit society is valid and binding on member. Where a by-law of a benefit society at the time a person became a member provided the society should not be liable to pay the benefits of members who commit suicide, whether sane - or insane, “except it be committed in delirium resulting from illness, or while the member is under treatment for insanity or has been judicially declared insane,” and thereafter a by-law was adopted changing the former by-law so that the society should not be liable for benefits in ease suicide whether sane or insane, without any exception, held that the subsequent bylaw was not unreasonable and oppressive and that the person becoming a member before its adoption was bound thereby.
    2. Insurance, § 779

      —when beneficiary cannot claim that benefit certificate was not accepted by member with its provisions. A beneficiary suing on a benefit certificate to recover insurance cannot claim that the provision in the certificate limiting the liability of the society is not a part of the contract, for the reason that the certificate was not under seal, was not signed by the member and that application was never signed by the member; the beneficiary cannot repudiate the certificate and at the same time seek to recover on it.
    3. Insurance, § 779

      —when member and beneficiary bound by provisions in benefit certificate. A member by paying dues and assessments and the beneficiary by bringing suit upon the certificate thereby accepts and adopts the certificate with all of its lawful provisions.
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    Morgan LeMasters, for appellant.
    J. F. Gillham and William P. Boynton, for appellee.

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

   Mr. Justice Harris

delivered the opinion of the court.

This is a suit in assumpsit brought by appellee as beneficiary in a benefit certificate issued by appellant to Henry C. Streeper, brother of appellee.

The pleadings in the case at the time of the trial consisted of the original declaration, one count declaring upon the benefit certificate and two additional counts for money had and expended. Appellant pleaded three special pleas. The first of said pleas averred that Henry C. Streeper came to his death by committing suicide and that by reason thereof appellant was not liable, except for the amount contributed to the benefit fund, the sum of $118.31.

The second special plea averred that Henry C. Streeper under the provisions of the benefit certificate set out in plaintiff’s declaration which is issued and accepted subject to all the conditions on the back thereof and subject to all laws, rules and regulations of the Mutual Protective League now in force or that may be hereafter enacted and shall be null and void if said member did not comply therewith. It is further averred in said plea that the constitution of appellant, in force and effect at the time of the death of said Henry C. Streeper, section 186, provides that the order will not pay the benefits of members who commit suicide, whether sane or insane, except money contributed to the benefit fund by such member shall be refunded to the beneficiary out of such fund in lieu of the benefits.

The third special plea, except as to said sum of $118.31, avers that said certificate was five-year mutual form issued to Henry C. Streeper, a member of Council No. 462 of Mutual Protective League located at Upper Alton, State of Elinois, and that in consideration of the statement of said member in his application and medical examination, both of which are made a part of this contract of membership, warranted that if said Henry C. Streeper should die by suicide, whether sane or insane, except it be committed in delirium resulting from illness while under treatment for insanity, etc., the order shall not be liable under this contract; that Henry C. Streeper agreed to make payment of all dues and assessments and conform in all respects to the constitution, by-laws, rules and regulations of the order now in force or that might be hereafter enacted; that Henry C. Streeper by drinking carbolic acid died by suicide. Judgment prayed, except as to the amount of $118.31.

General issue filed. Replications to general issue and special pleas.

The evidence under the issues joined in this case, about which there was no dispute, appears as follows: Henry O. Streeper made application, was examined and received as a member of the Mutual Protective League, March 19, 1903, and there was issued to him by appellant a benefit certificate for $1,000; that after the death of his wife, February 1, 1906, appellee became and was accepted as his beneficiary in said certificate ; that Henry C. Streeper paid all dues and assessments on said certificate to the time of his death, December 5, 1911; that his death was caused by drinking carbolic acid administered by himself with suicidal intentions.

The defendant denies liability under the pleadings and evidence in this case for any sum except a return of the moneys paid in as dues and assessments because the said Henry G. Streeper committed suicide; that a tender was made for the amount of said dues and assessments; that the Circuit Court committed error in refusing to so instruct the jury.

The appellee admits the suicide but contends that appellant is liable under the certificate because: The said Henry C. Streeper had never in the proper manner accepted the certificate and its provisions.

That he was not bound by subsequent by-laws of the society unless he received actual or personal notice of the passage of such by-laws.

That Henry C. Streeper committed suicide while delirious resulting from illness which was excepted under section 202 of the by-laws of appellant in force at the time the certificate was issued.

That the amended by-law issued by appellant September 17, 1911, as section 186, is unreasonable and not binding upon appellee.

That no actual tender of the money was ever made by appellant.

The suicide in this case is not a matter of dispute. The only question is whether or not deceased was bound by the by-law section 186 and, if not, whether he committed suicide under the exception of section 202 while in delirium resulting from illness.

Therefore, taking the reasons given by appellee: That certificate delivered to Henry C. Streeper was not under seal, was not signed by Henry C. Streeper and that the evidence does not show he ever signed the application, cannot be sustained because the action is based upon the certificate, and the beneficiary cannot repudiate it and at the same time seek to recover upon it. The cause of action for $1,000 is not divisible. He is held by the payment of dues and assessments and his beneficiary by the bringing of suit to have accepted and adopted it with all of its lawful provisions.

The application, medical examination and certificate are to be held under the law between the respective parties as the entire contract and each bound accordingly. One of the provisions in this contract was that the insured be bound by all subsequent by-laws. This was a part of the contract, and the insured was bound thereby unless it appears that said by-laws or rules were unreasonable and not within the law. Under the provisions of this contract, actual or personal notice was waived by the insured. Constructive notice was sufficient and under the undisputed evidence insured as a party to the contract received constructive notice of the passage of all by-laws.

The amended by-law section 186, issued September 17, 1911, changing section 202, in full force at the time Henry O. Streeper was accepted as a member of the said society, differs from section 202 in this: That under section 202 the words “except it be committed in delirium resulting from illness, or while the member is under treatment for insanity, or has been judicially declared insane, ’ ’ as they appear in said section are omitted from section 186.

The contention of appellee being that this case is to be decided under by-law section 202, which reads, so far as material, as follows: “This order will not pay the benefits of members who commit suicide, whether sane or insane except it be committed in delirium resulting from illness, etc.,” and appellant contending that the case is to be decided under section 186, which reads, so far as material, as follows: “This order will not pay the benefits of members who commit suicide whether sane or insane.” It will be noticed under section 202 there was a limitation to paying for members who commit suicide, and three classes of persons who committed suicide were excepted and paid for: Those who committed suicide in a delirium resulting from illness; those who were being treated for insanity; those who had been judicially declared insane.

All others who committed suicide under section 202 to receive no benefits under the contract, and this section according to appellee was reasonable and not oppressive. If this be true, we cannot understand why the further limitation of its liability, so long as it treats all members alike, eliminating the three exceptions above mentioned was making it unreasonable. It is not unusual for those offering protection to people to refuse to become responsible for the act of a person who commits suicide, because it is an irresponsible, irrational act. We are of opinion this amended by-law section 186 was not unreasonable and that Henry C. Streeper and his beneficiary, appellee, were bound by it. We are of the opinion that on the day of the death of Henry C. Streeper, from the evidence of Mrs. Osborne and Katie Martin, the only witnesses who saw and talked with deceased on that day, that he was not suffering from delirium caused by pain from the lump on his neck, and this is the only excuse offered by appellee for the commission of the act.

As this case must be remanded on a question of liability of appellant as to the amount insured paid in the benefit fund the errors with reference to the sufficiency of the tender, and the liability for costs will not at this time be discussed. We are of the opinion under the pleadings and evidence in this case that the instruction offered by appellant at the close of all the evidence in the case, instructing the jury to find for the plaintiff and to assess the damages in the sum the evidence shows insured had paid into the benefit fund of appellant, should have been given and its refusal was error, for which error this case will be reversed and remanded.

Reversed and remamded.


text:
    Mellie Smith, Appellant, v. Alfreda Smith, Appellee.
    (Not to Ibe reported in full.)
    Appeal from the Circuit Court of Clinton county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Bill filed by Mellie Smith against Alfreda Smith to review a decree setting aside a previous decree of divorce between William B. Smith and the defendant. From a decree dismissing the bill for want of equity, the complainant appeals.

      H. G. Weber, for appellant.
    John J. McGaffigan, for appellee.
    Abstract of the Decision.
    Divorce, § 61

      —when bill of review to annul decree properly dismissed. Where a man obtained a divorce from his wife and married again, and the first wife thereafter had the divorce decree set aside, and the husband died, held, on bill for review filed by the second wife against the first wife to have the decree setting aside the former decree of divorce between the husband and the first wife annulled, that a decree dismissing the bill for want of equity was proper for the reason that complainant was not a party entitled to a review of the decree there being no averment of fraud in obtaining the decree and no averments showing an excuse for laches.

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

   Mr. Justice Harris

delivered the opinion of the court.


text:
    Sadie Klinghammer, Appellee, v. Julius Hoffman, Appellant.
    1. Master and servant, § 849

      —when master is liable for the wilful and wanton acts of servant. Under the law of this state the master is responsible for wilful or wanton acts of the servant done within the general scope of his employment while engaged in his master’s business with a view to the furtherance of that business.
    2. Master and servant, § 849

      —when master liable for wilful acts of servant in management of horse. Where an owner of a horse directed his servant to take the horse out on the highway to feed and graze and the servant while riding the horse wilfully guided it so as to run against and injure a pedestrian, held that the servant’s acts were committed by him in the scope of his employment and the master was liable.
    3. Master and servant, § 866

      —when statement of servant to third parties elicited on cross-examination admissible. In an action against the owner of horses to recover for injuries sustained by plaintiff through the negligence of defendant’s servant in riding a horse on the highway so as to cause it to run against plaintiff, a statement made by the servant to third parties, brought out on cross-examination, held competent so far as it went to the credibility of his statement as to how the accident occurred, and therefore properly admitted
    Appeal from the Circuit Court of Fayette county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Brown & Burnside, for appellant.
    Albert & Matheny, for appellee.

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

   Mr. Justice Harris

delivered the opinion of the court.

This is a suit in trespass by appellee against appellant for damages to the amount of $5,000. The declaration, consisting of two counts, in substance charges as follows: That the defendant, Julius Hoffman, is the owner and in possession and having the management and control of divers horses in said county; and that on the 8th day of August, 1912, said defendant placed said horses in the care and custody of his servants, one of which said servants was Victor Hoffman, with direction from said defendant to said servant to take and ride said horses upon and along the public highways in said county and to allow said horses to feed upon and along the said highways, and then return said horses to the home of defendant; and that while plaintiff was traveling along one of the highways in said county, in the exercise of due care and caution for her own safety, the said defendant by his said servant and agent, who was then and there riding one of said horses, carelessly, negligently and wantonly directed said horse towards plaintiff and against said plaintiff, knocking plaintiff down, greatly bruising, injuring plaintiff and from which plaintiff suffered great pain, was permanently injured, and that the said Victor Hoffman was at the time of so riding and driving said horse within the scope of his employment.

The general issue was filed by defendant. Trial by jury and verdict returned for the sum of $850. The clerk in entering said judgment of record committed error in entering the judgment against Julius Hoffman and Victor Hoffman, which entry so made did not speak the truth, and which said error has since this appeal been corrected.

The points argued by counsel for appellant for a reversal of this case may be grouped as follows:

First. Because under the facts detailed in evidence appellant is not liable.

Second. The giving of appellee’s second instruction, modification of appellant’s instructions and the-admission of incompetent evidence.

Third. That the damages allowed are excessive.

Under the first and second propositions it is insisted by counsel that if as testified to by some of the witnesses the appellant’s servant turned his horse and guided it towards appellee, that was intentionally or wilfully done and was not within the scope of his employment. This would be a narrow construction of the law as applied to this case. It is not disputed that this servant had been by the master sent upon the highway with a horse to feed and graze and return to the home of appellant. The scope of the servant’s employment, or rather the purposes of the master from the directions given to his servant, was the management of the horse on the highway while going, feeding and returning home, and while the servant was so engaged the master vouched for him as a reasonably prudent and safe driver of the horse in question.

Under the law of this 'State the master is responsible for the acts (wilful or wanton) of the servant done within the general scope of his employment while engaged in his master’s business with a view to the furtherance of that business.

The application of the law to the evidence in this case would make appellant responsible for the acts of Victor Hoffman at the time in question. The form of appellee’s given instruction number two, while not technically correct was not misleading, and the same is true of the modification of appellant’s instruction when considered with the series of instructions given. 'The error in form does not go to the merits of the case and was not reversible error.

Appellant insists the admission of the statement of Victor Hoffman, brought out on cross-examination, made to third parties was incompetent and prejudicial to appellant as tending to show by the statement of the servant that the act was wilfully done. There was a conflict in the evidence as to whether the appellant rode his horse towards and upon appellee or whether, as Victor Hoffman testified, appellee ran under the horse. The evidence was competent in so far as it went to the credibility of the witness Hoffman’s statement as to how this accident occurred, If competent for that purpose it was properly admitted.

The contention of appellant as to the damages being excessive cannot be sustained because there is evidence in the record to support the amount of the verdict.

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

Affirmed.


text:
    First National Bank of Herrin, Illinois, Appellee, v. Anna Sobosky, Appellant.
    1. Injunction, § 385

      —when discretion as to allowance of temporary injunction revietoable. Though the matter of granting or refusing a temporary injunction is largely a matter of discretion, a court of review may be called upon to determine whether the trial court’s discretion was properly exercised.
    2. Witnesses, § 31

      —competency of husband or wife in equity. The competency of a husband or wife to testify for or against each other is the same in a court of law as in a court of equity.
    3. Equity, § 340

      —when bill should be dismissed for want of jurisdiction. Where a cause of action cognizable at law is entertained in equity on the ground of some equitable relief which cannot be granted for want of sufficient allegations or proof or for other reasons, the court is without jurisdiction to proceed further and should dismiss the bill without prejudice.
    4. Fbaud, § 38

      —when not ground for equitable relief. It doés not necessarily follow that because there are allegations of acts of fraud that chancery should take jurisdiction, for under the law fraud avoids a contract ab initio both in law and equity.
    5. Injunction, § 189

      —grounds for equitable relief. A .bill to enjoin an action on a certificate of deposit held not to show ground for equitable relief for the reason that an injunction would prevent an assignment of the certificate, where it appears that the certificate was past due and suit at law was brought thereon so that any assignee would take with notice of the equities and defenses.
    Appeal from the Circuit Court of Williamson county; the Hon. W. W. Clemens, Judge, presiding.
    Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    Sawyer & Otey and Denison & Spiller, for appellant.
    W. A. Schwartz, Hosea V. Ferrell and William H. Warder, for appellee.

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

   Mr. Justice Harris

delivered the opinion of the court.

This is an appeal from an interlocutory decree granting an injunction in favor of appellee against appellant, restraining her from prosecuting a certain action at law pending in the Circuit Court of Williamson county, Illinois, against appellee on certain certificates of deposit claimed to have been issued by appellee to appellant.

The hearing in the Circuit Court was had upon the presentation of a verified bill and notice to Anna Sobosky that application for preliminary injunction would be made to the presiding judge of the Circuit Court and the order or decree of the Circuit Court granting said preliminary injunction on the 3rd day of November, 1913, one of the regular judicial days of the September term, A. D. 1913, of the Circuit Court of Williamson county.

The bill presented by the appellee in substance alleges as follows: That the appellee is engaged in and doing a general banking business in the said city of Herrin, Illinois, and that appellant and her husband, Walter Sobosky, were residents of Herrin, and living together as husband and wife; that beginning in the year 1908 and continuing to the year 1913 they did a banking business with appellee; that one of the certificates upon which suit was brought, being No. 4755 bearing date January 11, 1911, is for $7,000, and the other of said certificates, being No. 7019, dated August 12, 1912, is for $625, both of said certificates payable to Anna Sobosky. The bill admits that appellee is justly indebted to appellant on the certificate for $625, and makes tender of the amount due thereon and the costs of suit. It is charged in said bill that the money represented by said certificate for $7,000 was the money and property of Walter Sobosky, and that the said certificate was never delivered nor intended to be delivered by the said Walter Sobosky to appellant; that the said Walter Sobosky placed said certificate among his papers and documents for safe-keeping and that on or about the 20th day of April, 1911, appellant, Anna Sobosky, without the knowledge or consent of Walter Sobosky removed said certificate of deposit from its place of keeping and placed the same with the Mercantile Trust Company of St. Louis, in a safety deposit box, all without the knowledge or consent of the said Walter Sobosky; that about April 20, 1911, the said Walter Sobosky came to the bank of appellee and represented that the said certificate for $7,000 had been lost and requested a duplicate thereof to be issued, which was issued;.that thereafter appellee paid said duplicate certificate of deposit to said Walter Sobosky, and that thereafter, towit, on March 21, 1913, the said Anna Sobosky brought suit in the Circuit Court of Williamson county, on the law side thereof, against appellee upon said original certificate for $7,000 and the one for $625.

And it is further charged that appellee has paid Walter Sobosky, the legal and lawful owner of said certificate of deposit for $7,000 all that is due thereon, and that by reason of the strict and harsh rules of courts of law it would not be competent or proper for it; the defendant in said suit to prove the facts set forth in said bill in a court of law; that during all the transactions mentioned in said bill until July, 1913, appellant and the said Walter Sobosky were husband and wife; that appellee has no other means of evidence with which to prove that the certificate of deposit for $7,000 was the money of Walter Sobosky and that Anna Sobosky had no interest therein; and that the said certificate was never delivered to her by the said Walter Sobosky or any person for him, and that the said Anna Sobosky fraudulently and wilfully, without knowledge or consent of said Walter Sobosky, took the same and that appellee did not know where the certificate for $7,000 was except by the testimony of said Walter Sobosky; and that by reason of the strict and harsh rules of law, Walter Sobosky is not a competent witness in the aforesaid suit at law and these matters can only be testified to by him in a court of equity.

The bill further charges that said Walter Sobosky is insolvent, has no effects to any appreciable extent, and unless Anna Sobosky is enjoined from further prosecuting the said suit at law and appellee is permitted to introduce the testimony of said Walter Sobosky, that a fraud will be perpetrated upon appellee and that appellee will be compelled to pay a large sum of money, which in equity and justice it does not owe; that appellee is without remedy, except in a court of equity, and cannot make its defense in a suit at law on account of the strict and harsh rules of said court.

The bill prays that an immediate injunction should be granted restraining Anna Sobosky from prosecuting said suit at law and from transferring the said certificate of deposit, and that upon a final hearing said injunction should be made permanent, and that the said Anna Sobosky should be required to deliver up said certificate for cancellation.

The bill contains all the facts upon which the court granted the temporary injunction in this case, and while a matter of application and the order granting or refusing of a temporary injunction is largely a matter of discretion, it is such a matter of discretion as under our statute may be appealed from to a court of review and that court called upon to- determine whether or not the discretion of the trial court has been properly exercised.

The relief asked in this case, the enjoining of a suit at law and finally a decree cancelling an obligation upon which the suit at law was based, depends upon whether or not there appears in the bill special and substantial allegations as a ground for equitable relief. The propositions appearing from the record and argued by counsel may be grouped into three divisions :

First. That Walter Soboslcy, the husband of appellant, would be an incompetent witness to testify for appellee in the case at law as to matters and things set up in the bill, but competent in chancery.

Second. That the defense of appellee is an equitable defense and cannot be made at law.

Third. That the certificate upon its face constituted a valid and binding obligation, and the facts necessary to show its invalidity can only be shown in a court of equity and not in a court of law.

There is much space given and many authorities cited in the arguments of both appellant and appellee as to the competency of husband and wife to testify under our statute for or against each other and as to what matters they may testify to and what they may not, depending upon the circumstances and facts in each particular case. We are not disposed to decide the question in advance as to whether or not the husband or wife in this case would be competent to testify or what facts they might testify to, for the reason that the only question properly raised in this case for the court to determine from the averments of the bill is whether or not the competency or incompetency of the husband or wife is any different in a court of chancery from what it would be in a court of law, and upon this question there can be no difference as to the rule in either court. The evidence that would be competent in a court of chancery from either the husband or the wife is competent in a court of law. Supreme Council Cath. Knights and Ladies of America v. Beggs, 110 Ill. App. 148.

The second proposition of an equitable defense which cannot be made at law can only be ascertained from a reading of the bill as to what the pleader means in the argument in support of the allegations of his hill. “The rule is, that where a cause of action cognizable at law is entertained in equity on the ground of some equitable relief sought by the bill, which it turns out cannot, for defect of proof or other reason, be granted, the court is without jurisdiction to proceed further, and should dismiss the bill without prejudice.” Brauer v. Laughlin, 235 Ill. 272.

The allegations in this bill consist of matters that the pleader says transpired or took place between appellant and Walter Sobosky, her husband, as to the certificate for $7,000 in question, and between Walter Sobosky and appellee, and the appellant and appellee, which if proved as alleged in the bill would not be any special and substantial ground for equitable relief. It does not necessarily follow that because there are allegations of acts of fraud that chancery should take jurisdiction, because under the law fraud avoids a contract ab initio both at law and in equity, whether the object be to deceive the public or third person, or one party endeavors thereby to cheat the other, for the law will not sanction dishonest views and practices by enabling an individual to acquire through the medium of his deception any right or interest. Whitney v. Roberts, 22 Ill. 381.

Therefore the defense of fraud under proper pleadings could be tried at law as well as in chancery. What has been said with reference to proposition No. 2 might be said as to proposition No. 3, and in addition thereto the controlling question under this proposition, as in proposition No. 1, is not what kind of evidence may be offered in explanation or to vary the terms of this written instrument, but it is whether or not any different rule would apply in chancery than at law. To be entitled to a hearing in a court of chancery upon this proposition some different rule must be shown to apply as to the competency of the evidence than would apply in a suit at law, and from an examination of the authorities we are of the opinion that the same rule as to the admissibility of the evidence would be enforced in a court of equity as at law; that as to the injunction preventing the assignment of this certificate and other parties acquiring rights thereunder as being ground for relief cannot-be sustained because before suit was brought, according to the record, the certificate was past due and suit at law was brought thereon. Any assignment under our statute of this instrument would be notice to the assignee of the equities and defenses, especially would this be true after the bringing of suit at law.

This is a case, from the record, of considerable importance to the parties hereto, and we have examined carefully the record filed to determine whether or not their rights would be in any way affected or abridged by dissolution of this injuction, and after such an examination we fail to find from the averments of the bill of facts any defense proper in this case that could not be made at law. It was therefore error for the court in this case to grant the preliminary injunction from the showing made in the bill, and the injunction should have been refused and the bill dismissed without prejudice, for which error this case will be reversed and remanded.

Reversed and remanded.


author: Mr. Justice Higbee

text:
    J. W. Gullett, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Pope county; the Hon. William N. Butler Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement oif the Case.
    Action by J. W. Gullett against the Illinois Central Railroad Company to recover damages to a peanut roaster in the course of shipment. The roaster was delivered to the Baltimore and Ohio Southwestern Railroad and transferred in the regular course of shipment to defendant’s railroad. The suit was first commenced before a justice of the peace and on appeal to the Circuit Court the plaintiff recovered a verdict itnd judgment for thirty dollars. To reverse the judgment, defendant appeals.
    Charles Durfee and W. W. Barr, for appellant; Blewett Lee and W. S. Horton, of counsel.
    W. S. Morse, for appellee.
    Abstract of the Decision.
    1. Carriers, § 135

      —when recovery for damages to shipment sustained by the evidence. In an action against a railroad company which was a connecting carrier to recover damages claimed to have been occasioned to a peanut roaster in the course of its shipment, a verdict for plaintiff held sustained by the evidence, the questions of facts presented being whether the roaster was in good condition when received by the initial carrier, whether it was crated for shipment and whether it was shipped at owner’s risk.
    2. Instructions, § 107
      —right to instruction on theory of case. A party has the right to have the jury instructed upon the law bearing upon his theory of the case when there is proof to support it.

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

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Joe Becker, Trustee, Appellee, v. Rheinhardt W. Hofsommer, Appellant.
    1. Bills and notes, § 372

      —when variance between note and declaration immaterial. In. an action by a payee against an indorser on a promissory note where a special count in the declaration did not state the place of payment and the note offered in evidence stated a place of payment at the bottom of the note beneath the maker’s signature, held there was not such a variance between the declaration and the note as to preclude the admission of the note in evidence.
    2. Bills and notes, § 272

      —necessity of demand on maker to charge indorser. A payee may sue an indorser on a note without first making a demand on the maker where such indorser indorsed the note for his own benefit at the time of its execution and the money which it represented was procured at his request as well as at the request of other indorsers.
    3. Bills and notes, § 92

      —effect of marginal notations. A marginal notation placed outside the note proper cannot be considered as part of the contract.
    4. Bills and notes, § 342

      —when declaration need not allege defendant’s liability as guarantor. Recovery may be had against an indorser on a promissory note as a guarantor, though the declaration does not allege he was a guarantor where the contract contained in the note was admissible under Ihe common counts and plaintiff was entitled to recover thereunder.
    Appeal from the Circuit Court of St. Clair county; the Hon. Geokqe A. Cbow, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    James O. Miller, for appellant.
    Turner & Holder, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit in assumpsit upon a promissory note, containing a special count upon the note and also the common counts for money had and received. A jury was waived and the ease heard by the court upon a plea of general issue. The issues were found for appellee and judgment entered against appellant for $906.25. The special count set forth that the note was executed by Ben A. Gundlach for the sum of $2,240, with interest at the rate of five per cent, per annum from date, was made payable to the order of appellee and was indorsed by appellant under the name and style of B. Hofsommer; that appellant, by his said indorsement, guaranteed the payment of said sum of money and promised the plaintiff to pay the same to him, according to the tenor and effect of said note, if said Gundlach should not so pay the same; that the note was due and payment had been demanded of said Gundlach and he had refused to pay the same or any part thereof and still refuses so to do, of which fact appellant had notice prior to the bringing of the suit. The copy of the note filed with the declaration is as follows:

“2,240.00. September 9, 1911.
On demand after date I promise to pay to the order of Joe Becker, Trustee, Twenty-two Hundred and Forty Dollars. For value received negotiable and payable without defalcation or discount and with interest from date at the rate of 5 per cent per annum.
Payable at Belleville, 111. Ben A. Gundlach.
No................... Due demand.
Endorsed: B. Hoesommer.”

The note sued on, which was admitted in evidence, had as indorsers the names of six other persons in addition to that of appellant and included among them the name of the signer of the note, Ben A. Gundlach. It also appeared from other indorsements on the note that each of said indorsers, except said Gundlach and appellant, had paid one-seventh of the amount due upon said note, leaving two-sevenths unpaid.

The proofs show that upon the date of the note sued upon, the seven indorsers, together with the maker, also an indorser, were indebted to the First National Bank of Bellville, Illinois, on a note of $2,000, and had been sued for the same, together with the interest due thereon; that William J. Reichert, one of the indorsers at the request of appellant and the other indorsers, procured the money from appellee to pay off the bank; that G-undlach thereupon made his note to appellee for the necessary sum, $2,240, and the same was indorsed by appellant and the others who had been on the banknote and delivered to appellee. Appellant complains that the court below committed error in admitting the note in evidence on account of a variance between the contract therein stated and the one set up in the special count and also in holding, as appellee claims, appellant whs a guarantor instead of an indorser. Appellee in his special count did not state that the note was payable at any particular place, but the note introduced in evidence showed the following notation below and at the left of the maker’s name: “Payable at Bellville, Ill. No.........Due demand,” and appellant for this reason insists that there was such a variance between the declaration and the note as to preclude its admission in evidence. He cites, in support of his contention, Lowe v. Bliss, 24 Ill. 168, and Childs v. Laflin, Butler & Co., 55 Ill. 156. In those cases, however, the place of payment was stated in the body of the notes, while in the note before us the place of payment is stated in the notation at the bottom of the note and below the signature and is not embodied in the contract. Such a marginal notation placed outside of the note proper cannot be considered as a part of the contract (Merritt v. Boyden & Son, 191 Ill. 136); and therefore the omission to state the place of payment in the special count was not a variance.

The evidence also shows conclusively that the note sued on was indorsed by appellant for his own benefit at the time of its execution and that the money which it represented was procured by Reichert at his request as well as at the request of the other indorsers. It was therefore not necessary that demand should have been made on the maker before suit was brought against appellant. R. S. 1911, ch. 98, par. 98. (J. & A. ¶ 7720).

It is immaterial that the special count charged that appellant was a guarantor of said note as the contract contained in the note was admissible under the common counts and appellee was plainly entitled to recover thereunder. Clarke v. Newton, 235 Ill. 530; Harrison v. Thackaberry, 248 Ill. 516. The defense in this case is purely technical and as no reason appears which requires the reversal of the. judgment appealed from, the same will be affirmed.

Judgment affirmed.


text:
    William A. Dameron, Appellee, v. Commonwealth Steel Company, Appellant.
    1. Master and servant, § 701

      —when evidence shows injury to eye resulted from, mere accident. In an action against an employe to recover damages for injury to plaintiffs eye, alleged to have been caused by the negligence of a servant in emptying a bag of cement near where plaintiff was working so that particles thereof blew in plaintiff’s eye, held that it appeared from the evidence that the injury was the result of mere accident for which the employer was not liable, there being no proof that there was a safer method of handling the material and plaintiff testified that the servant “emptied the sack like anybody would.”
    2. Master and servant, § 779

      —when instruction on theory of accident applicable to case. In an action by a servant against his employer for the negligence of another servant in emptying a bag of cement near where plaintiff was working so that particles of the cement blew in plaintiff’s eye, an instruction given for defendant stating: “If you believe from the evidence that the cement got into plaintiff’s eyes as the result of mere accident, and neither the defendant nor the plaintiff was the cause thereof, you should find the defendant not guilty,” held to correctly state a controlling principle applicable to the case.
    Appeal from the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed with finding of facts.
    Opinion filed May 1, 1914.
    Dan McGlyn, for appellant.
    William P. Launtz and D. J. Sullivan, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

While William Dameron, appellee, was working for the Commonwealth Steel Company, appellant, and engaged in putting in a form to hold concrete, his eye was injured by fine particles of cement, coming from a sack of that material, which was being emptied near to him by another workman, and he brought this suit against appellant for the damages so sustained. There are two counts in his declaration, each of which charged that while appellee was engaged in working for appellant as a carpenter on November 7,1911, a servant of appellant, not a fellow-servant of appellee, so carelessly, negligently and recklessly emptied a sack of cement into a wheelbarrow as to cause some of the cement to fall or blow into appellee’s eye, causing the injury. There was a plea of the general issue and the trial resulted in a verdict and judgment in favor of appellee for $1,800.

The facts in this case leading up to the injury were not in dispute and were shown to be as follows: On the date above mentioned, and prior thereto, there were, among others, working in appellant’s steel plant in Granite City, Illinois, a gang of carpenters and a gang of men mixing concrete, each of which had its own foreman. At this time appellant was causing a new trip hammer to be'placed in its blacksmith shop and was using men from these two gangs to put in a concrete base or pier for the same. The carpenter’s gang, of which appellee was one and with whom he had worked some months, first built a platform for the concrete in an excavation made in the dirt floor of the blacksmith shop, in which the men engaged in the concrete work put the concrete, forming a pier 30 x 54 inches in size and extending some four or five inches above the level of the floor. A few days later, the concrete having become sufficiently hardened, appellee and other carpenters took the form away and made a cushion for the trip hammer of heavy timbers in the center on top of the pier. It was then necessary to make another form of boards around the top of the pier so that a strip of concrete some three inches thick could be built on top around the cushion. While this was being done, one of the concrete men, at the direction of his foreman, brought in a wheelbarrow partly filled with sand and placed it near the pier on some dirt taken from the excavation. After appellee had finished putting the form around the pier and while he was down on his knees calking with clay some places around the bottom where the pier was chipped off, so that the concrete would not run out, one of the concrete gang brought a sack of cement and emptied it onto the sand in the wheelbarrow, turning the sack upside down and shaking it by the bottom corners. Just as he had finished emptying the sack, appellee turned, his head and looked up and as he did so some of the cement went into his right eye. At this time the wheelbarrow was near the pier about two feet from appellee, and by reason of it being on the dirt and appellee being on his knees, his head was about on a level with the same. The injury did not seem serious at first and for a day or so appellee remained at work, bathing his eye in warm water and using a soothing application of some kind in an attempt to cure the hurt. Later he was treated by a number of different physicians who sought to relieve him, without success, and at the time of the trial he had lost the sight of his eye.

Appellant urges with considerable force, among other grounds depended on for a reversal of this judgment, that appellee and the man who emptied the sack of cement were fellow-servants and also that the loss of sight resulted from appellee’s mismanagement and neglect of the injury after it had been caused, but these questions will not be considered by us here, as we think the result of the appeal must be determined along another line.

The declaration was based upon the theory that plaintiff’s injury was due to the careless, negligent and reckless act of a servant of appellant, for which appellant was responsible and should be held in damages to appellee. The Court, at the instance of appellant, gave an instruction to the jury, saying: “If you believe from the evidence that the cement got into plaintiff’s eyes as the result of a mere accident, and neither the defendant nor the plaintiff was the cause thereof, you should find the defendant not guilty.” This instruction correctly stated a controlling principle applicable to this case, for appellant could only be held to damages for negligence caused by it through its servant and not for the result of a mere accident. “Fór a purely accidental occurrence causing damage without the fault of the person to whom it is attributable, no action will lie, for though there is damage, the thing amiss—the injuria—is wanting.” Cooley on Torts (2nd Ed.) p. 91.

In Illinois Cent. R. Co. v. Smiesni, 104 Ill. App. 194, the Court in citing the above quotation also states, that an instruction which told the jury if they believed from the evidence that the whole occurrence was a mere accident without fault or negligence on the part of the defendant, the verdict should be not guilty, was a correct statement of the law.

In Perryman v. Chicago City Ry. Co., 242 Ill. 269, the Court sustained an instruction stating, that “negligence is the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do or the doing of something which a prudent and reasonable man would not do, ’ ’ and states that this definition of negligence has been approved by numerous cases. This Court said in Illinois Cent. R. Co. v. Hobbs, 58 Ill. App. 130: “Negligence is not presumed merely because there was an accident, if what was done or omitted was in the usual course; if it was not in itself improper. * * *

The inquiry is not whether the accident might not have been avoided if it had been anticipated, but whether, under all the circumstances, it was negligence not to anticipate and provide against its occurrence in the exercise of ordinary prudence. Ordinarily, if negligence is not apparent and an injury occurs, it belongs to that class designated as accidental. Wabash, St. L. & P. Ry. Co. v. Locke, 112 Ind. 404.”

What did the servant of appellant do in emptying the sack of cement which is not ordinarily done under such circumstances or what did he omit to do which should have been done? No evidence was introduced by appellee to show that there was any better, safer or other'way of emptying cement from a sack than that adopted by the man who did it. Appellee himself in giving his account of the occurrence stated: “He was possibly within two feet of my face, maybe closer, my being down in a hole and him on an elevated point. He emptied the sack like any body would, catching it at the bottom corners of the cement sack and shaking out the corners. Just as he turned away I was unfortunate enough to look around to see what was going on.” The fact that the servant of appellant was close to appellee at the time he emptied and shook out the sack of cement cannot be held by the court to be conclusive proof that he was guilty of negligence in so doing. It is a matter of common knowledge that cement is now one of the most generally used materials employed in certain trades and industries; that it is generally packed for shipment in bags or barrels from which the cement is usually taken just as it is needed for use; also, that it is a light, powdery substance which easily floats through the air; that there is nothing in its composition or ingredients which causes the use of it to be accompanied with such special dangers as would require it to be handled in a manner different from other building materials of like character for the protection of the persons engaged on the work. Not only was there no proof that there was another and safer way of handling the material than that adopted by the servant of appellant in this ease, but appellee himself testified that such servant “emptied the sack like any body would,” showing it was done in the ordinary way. It appears to us that all that can be said of this occurrence and the injury to appellee is that it was a mere accident such as no ordinary, careful and prudent man would be called upon to anticipate and provide against under like circumstances; that it was like countless other accidents which occur from day to day unexpectedly and out of the usual course for which no onq can be held legally accountable.

The judgment of the court below will be reversed and as there is no controversy as to the facts upon which we have based our decision, the case will not be remanded.

Reversed with finding of facts.

Finding of facts to be incorporated in the judgment: The court finds that at the time appellee received the injury complained of, appellant was not guilty of any negligence causing the same to be brought about or contributing thereto.


text:
    The People of the State of Illinois, Defendant in Error, v. Los Moreland, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Fayette county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against Los Moreland on an indictment consisting of two counts. The first count charged defendant, a married man with living with an unmarried woman in an open state of adultery and fornication, and the second count charged him with living with a married woman in an open state of adultery. The jury returned the verdict: “We the jury find the defendant Los More-land guilty of adultery in the manner and form as charged in the indictment.” Prom a judgment entered on the verdict, defendant prosecutes a writ of error.
    F. M. Guinn and E. B. Spurgeon, for plaintiff in error.
    J. G. Burnside, for defendant in error.
    Abstract of the Decision.
    1. Adultery, § 4

      —sufficiency of indictment to sustain conviction. Where an indictment consists of two counts, the first charging the defendant, a married man, with living with an unmarried woman in an open state of adultery and fornication, and the second charging him with living with a married woman in an open state of adultery, held that a conviction could be had under the first count only where the woman named was divorced from her husband.

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

   Mr. Justice Higbee

delivered the opinion of the court.

2. Adultery, § 7 —when verdict not responsive to the indictment. Under an indictment charging a married man with living with an unmarried woman in an open state of adultery and fornication, a verdict finding the defendant guilty of adultery in the manner and form as charged in the indictment, held not responsive to the indictment for the reason that it did not find that defendant was guilty of openly living together with the woman named, such being necessary to constitute the crime.

3. Adultery, § 3 —when adultery or fornication constitutes a crime. The commission of adultery or fornication, however immoral, is not a crime under our statutes; to constitute the crime there must he an open living together by the parties in a state of adultery and fornication.


text:
    John B. Schmoeller et al., Appellees, v. Henry Schmoeller, Appellant.
    (Fot to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Bill by John B. Schmoeller and Walter Schmoeller against Henry Schmoeller and others for partition of certain real estate formerly owned by their father and mother, John W. Schmoeller and Lena Schmoeller, both deceased. The bill also asked that Henry Schmoeller be required to account for the rents of a portion of the premises which had been occupied by him after the death of his father, John W. Schmoeller. The decree granted the prayer for a partition, directed the payniont of certain mortgage indebtedness and also ordered Henry Schmoeller to pay the other parties in interest twenty-five dollars a month. From that portion of the decree requiring the payment of rent, Henry Schmoeller appeals.
    B. J. O’Neill, for appellant.
    William P. Boynton, for appellees.
    Abstract of the Decision.
    1. Partition, § 74

      —when decree against an heir for rent cannot he sustained. On partition between heirs, held that a decree requiring an heir in possession of part of the property to pay a certain monthly rental based on an agreement between him and other heirs could not be sustained, where the agreement was not enforceable because one of the adult heirs was not present when the agreement was made and there was no one authorized to act for other minor heirs but held that such heir was liable to pay a reasonable rental and the decree was reversed and the cause remanded with directions to ascertain the reasonable rental value.
    2. Partition, § 74

      —when decree should charge heirs with use and occupation. On partition between heirs, an heir in possession since the time of the death of the testator may, in the absence of a legal agreement as to rent for the use of the premises, be required to pay a reasonable rent, and if it should be proved that other heirs occupied the premises with him a portion of the time, they should be decreed to pay their just proportion of the rent according to the length of time they shared in the occupation of the premises.
    3. Partition, § 75

      —sufficiency of decree charging part of the heirs with rent. On partition between heirs where some of the heirs are charged with use and occupation of the premises, the decree should provide that the rent be paid to the master in chancery for distribution among all the tenants in common, each to share in the same in proportion to his interest in the real estate including the ones found liable to pay the same.

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

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Richard Slack, Appellee, v. Milwaukee-Mechanics Insurance Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Bast St. Louis; the Hon. William B. Hadley, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Action by Bichará Slack against Milwaukee-Mechanics Insurance Company on a fire insurance policy issued to plaintiff on the contents of a six-room dwelling house. From a judgment in favor of plaintiff, for seven hundred and fifty dollars, defendant appeals.
    Plaintiff had four one thousand dollars insurance policies on the contents of the house in four different companies and being unable to effect a settlement brought suit against the respective companies. In a suit against the Security Insurance Company plaintiff recovered a judgment for seven hundred and seventy-five dollars, but on appeal to the Appellate Court the judgment was reversed and the cause remanded. Security Ins. Co. v. Slack, 183 Ill. App. 579. The pleadings in that case and the present one appear to be identical and the evidence much the same except in some minor particulars. The decision in the former case is controlling on some of the questions raised in the present case, and reference must be had to the opinion in that case for the decision on those questions.
    E. P. Peers and E. P. Holly, for appellant.
    Webb & Webb, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

Abstract of the Decision.

1. Insurance, § 699 —when refusal of requested instruction improper. In an action on a fire insurance policy, refusal of a requested instruction that the insurance company would not be liable for loss or damage to the goods other than that arising from the fire resulting from plaintiff not being permitted by the police and fire department to take possession of the goods after the fire, held error, the policy insuring only against direct loss or damage by fire and providing that the insurer shall not be liable for loss caused directly or indirectly by order of any civil authorities.

2. Insurance, § 636 —admissibility of insured’s list of property destroyed. A copy of the list of articles made out and furnished the adjuster by the insured may be used by the insured to refresh his recollection when testifying as to what articles were destroyed, but where the list has the value of each article placed opposite the same it should not be permitted to go to the jury.

3. Insurance, § 426 —amount of recovery for loss by fire. Where a fire policy limits the liability of the insurer to the actual cash value of the property at the time of loss to be ascertained with proper deductions for depreciations however caused, the insured is not entitled to recover the cost price of the articles when new, it appearing that the articles had been used for one or more


text:
    S. M. Lloyd et al., Appellees, v. Frank Campbell, Appellant.
    1. Interest, § 15

      —when allowable for amounts due under gas and oil lease. Lessor in a gas and oil lease held entitled under section 2, ch. 74, R. S., J. & A. ¶ 6691, to recover interest from the time the several amounts payable under the lease respectively fell due, both the time of payment and the amount to be paid being stated in the lease.
    2. Contracts, § 253

      —effect of modification of gas and oil lease. A modification of a written oil and gas lease construed as not inconsistent with the original contract so as to relieve the lessee from drilling certain wells provided for by the original contract.
    Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Parker & Eagleton, for appellant.
    Jones & Lowe, for appellees.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This is a suit on an oil and gas contract entered into by appellees with appellant. There were three counts in the declaration filed by appellees, to all of which appellant demurred generally and specially. The demurrer was overruled by the court and appellant chose to abide by the same. It was agreed between the parties that no further claim, should be made under the second and third counts of the declaration and that the case should proceed on the first count. An order of default was entered against appellant, and appellees having moved to dismiss the second and third counts of their declaration, the motion was allowed and the suit dismissed as to said counts. Appellant, however, appears to have entered into an agreement with appellees that the damages should be assessed by the court without a jury and thereupon said cause was heard on the first count of said amended declaration, the default entered against appellant and the evidence offered by appellees in support of said first count. Evidence was introduced under the first count by appellees, appellant being present either in person or by attorney, to cross-examine the witnesses. The court, after hearing the proofs, assessed appellees’ damages at $366.74, and . entered judgment against appellant for that amount.

The count of the declaration under which the damages were assessed sets out that on December 28, 1908, appellees owned a certain two hundred acre farm in Crawford county, Illinois, and on that day entered into a written lease with appellant, which was set out in full. It recited the leasing of the land to appellant for mining and operating for oil and gas, the laying of gas-pipe lines and construction of tanks. The consideration of the rental was $1 a day to be paid by appellant, so long as the lease should be retained by him and one-sixth of the oil produced on and saved from the premises. It was further stipulated that a well should be completed on said premises on or before the first day of April, A. D. 1909, and that an additional well should be completed every sixty days thereafter, until fifteen wells should be completed; that in case of a failure to complete any of said wells at the time agreed upon, an additional rental of $1 a day for each of the wells not so completed should be paid, until they should have been respectively completed, and that all rentals should become due and payable on the last day of each calendar month. The agreement further provided that in addition to such rental there should be paid the sum of $100 for each location made for the purpose of drilling the well under the lease, said payment to be due when the location should be made. There were certain other conditions and agree-' ments contained in the lease which do not concern this suit and are not necessary to be stated.

It was further averred in the declaration that after-wards, on August 24, 1909, the parties entered into a written modification of said lease, by which appellant agreed to drill a well on said premises to offset some well on the adjoining premises within forty days of the date of said modification and an additional offset well each thirty days thereafter, until all wells on adjoining lands necessary to be offset should be offset by wells on appellees’ land, located not further than two hundred feet from the outside boundary line; that after the completion of all offset wells, appellant might at any time surrender the undrilled portion of said lands, reserving, however, five acres in a square around each producing well; that if appellant should fail to pay rentals or location fees when due or to complete any well within the time required by the lease and the modification thereof, appellees might, at their election, declare a forfeiture and annul said lease as to the undrilled portion of said premises; that said modification of the lease also contained the further agreement: 61 The within agreement and lease except as the same is modified and changed by the above endorsement thereon, shall remain in full force and effect.” The declaration further stated that five offset wells were drilled on or before January 31, 1910, and the drilling portion of said supplemental agreement was fully completed; that appellant thereupon should have proceeded to drill the remaining ten wells of said fifteen wells under the terms of the original lease and should -have completed the sixth well April 1,1910, the seventh well by May 31, 1910, and so on, completing one well each sixty days until all had been drilled; that said sixth well was not completed on or before the first day of April, 1910, as appellant had promised, but was completed on April 29, 1910, and that wells No. 13, 14 and 15, that should have been completed as above referred to, were never completed; that on November 4, 1911, appellant surrendered all the undrilled portion of said premises in accordance with the terms of the supplemental agreement.

It appeared from the proofs that five offset wells were all that were necessary to be drilled to comply with the supplemental agreement; that thereafter, appellant proceeded to drill the sixth well but did not complete it until April 29, 1910, as above stated; that he drilled wells No. 7 to 12 inclusive thereafter in compliance with the terms of the original contract and within the time therein named, but did not drill wells 13, 14 and 15; that he paid the location fees on all wells drilled as provided in the original contract.

At the conclusion of the hearing judgment was entered by the court against appellant for $366.74. This amount was evidently arrived at by allowing appellees $1 a day for the delinquency of twenty-eight days on the well due to be completed on April 1, 1910, and the same amount per day on wells 13, 14 and 15 from the time the same should have been completed to the date of the surrender of the lease, making $334; and also interest on said amounts from the date they respectively came due to the day of trial, May 17, 1913, amounting to $32.74, making a total of $366.74.

The principal controversy in this case is over the construction which should be given to the contract sued on. It is the contention of appellant that by the modification of the original contract above referred to, all drilling clauses in the original contract were abrogated and that thereafter, appellant, by the terms of the modified contract, was only required to drill the offset wells, which were shown to have been five in number; that such wells as appellant drilled in addition to the five required for offset were drilled at his option and pleasure and not under the contract.

Appellees on the contrary claim that the modification did not release appellant from his duty to drill the fifteen wells provided for by the original contract, but only provided that certain of them should be drilled as offset wells within certain times named and that they should be located not further than two hundred feet from the outside boundary line of the premises.

Appellant asserts the doctrine that when a new contract is inconsistent with an earlier one, so that they cannot subsist together, the latter takes the place of the former; that when the new contract is in regard to the same matter and has the same scope as the earlier contract and the terms of the two contracts are inconsistent, so that they cannot subsist together, the new contract as a general rule abrogates the earlier one and takes the place of so much thereof as is affected by the new contract. This position is undoubtedly correct. 3 Elliott on Contracts, see. 1865; Harrison v. Polar Star Lodge, 116 Ill. 279. So also is appellant’s further contention, that when a new contract upon the same subject-matter is entered into by the parties, this works a rescission or abandonment of the previous contract.

In this case, however, the modification referred to and relied upon by appellant, as abrogating the original contract, was not a new contract but simply an amendment or modification of the old one, and it expressly provided that the old contract, except as modified and changed by the amendment, should remain in full force and effect. The original contract and the modification must therefore be considered as one instrument and if possible must be so construed that all parts should stand together. Courts as a rule in construing contracts look to the entire instrument and give each part of it such effect, if possible, as will render the whole contract operative. McCarty v. Howell, 24 Ill. 341; Hayes v. O’Brien, 149 Ill. 403.

From a consideration of the contract and modification in question here, the two do not appear inconsistent and we find no reason why effect should not be given to both parts as is expressly provided for by the modification. In our view of the case the modification did not relieve appellant from drilling the fifteen wells provided for by his original contract, but the provision for the drilling of the necessary offset wells within a shorter time than the wells contemplated by the original contract were to be drilled was simply a precautionary measure agreed upon by the parties to protect these premises from the danger impending from wells drilled on adjoining premises. This also appears to have been the construction placed upon the contract by appellant himself, as he continued to drill wells after the completion of the five necessary offset wells without any new contract or undertaking on the part of appellees. When appellant commenced to drill the sixth well he must be held to have done so under the contract, and his failure to complete the sam,e within the time named subjected him to the payment of the penalties therein provided for. He could, had he so desired, have surrendered the lease, so far as it affected all the undrilled portions of said premises, before the time expired within which the thirteenth well was, by the lease, to have been completed and thus avoided any penalty for failure to drill the last three wells. He, however, chose to keep possession of the premises and not surrender them" until a later date and he thereby incurred the penalty provided for failure to comply with the contract up to the time of the surrender thereof. The court below properly found that appellees were entitled to recover from appellant the penalties provided for by the contract, and an examination of the proofs shows that his assessment of the amount due was proper.

It is further contended by appellant that the court erred in requiring him to pay interest upon the several amounts after the expiration of the time provided for their payment. Section 2, ch. 74 of the Revised Statutes of this State (J. & A. ¶ 6691) provides that: “Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note or other instrument of writing.” In passing upon this section of the statute, our Supreme Court in Heissler v. Stose, 131 Ill. 393, where the action was predicated on a lease which provided that the rent should become due and payable monthly in advance, stated: “The lease, in our opinion, was an instrument of writing, within the meaning of the statute, and after the rent became due, the plaintiff, by the express terms of the statute, was entitled to recover interest thereon.”

In Kelly v. Galbraith, 186 Ill. 593, where a decree found that rent was due under the terms of a written lease and ordered payment thereof, it was held that there was no error in allowing interest upon overdue instalments of rent. In this case the lease or contract was in writing and provided for fixed periods at which the payments named therein should be made. Both the time of payment and the amount to be paid were stated, and under the statute it is plain appellees were entitled to recover interest from the times the several amounts respectively fell due. The judgment of the court below will accordingly be affirmed.

Affirmed.