text:
    Douglas S. Petrea, Defendant in Error, v. Fred Hediger et al., Plaintiff in Error.
    ■ 1. Contracts—parol evidence. In general an unambiguous contract cannot be varied or contradicted by parol evidence of conversations before its execution.
    2. Contracts—parol evidence. Parol evidence as to an agreement with a contractor, concerning a party wall, is admissible where the written contract for a building is ambiguous in that it does not, provide for a north or south wall, and though it is conceded that a north wall is not included, the owner alleges that the south wall was included.

      3. Evidence—affidavit. An affidavit by a witness in an action by the contractor to enforce a mechanic’s lien, stating that certain work was paid for, can only be offered for the purpose of impeachment and is properly rejected where such witness was examined without his attention being called to the affidavit and no foundation was laid for its introduction.
    °Error to the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    L. B. Skipper and Noleman & Smith, for plaintiffs in error.
    W. F. Bundy, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

By the writ of error sued out in this case, the plaintiffs in error seek to reverse a decree of the Circuit Court of Marion county, wherein Douglas S. Petrea, the defendant in error, was awarded a mechanic’s lien for $1,247.84 against certain premises in Centralia, Illinois, owned by Fred Hediger, one of the.plaintiffs in error. The other plaintiffs in error are Annie Hediger, wife of said owner of the premises, the Heims Brewing Company and Robert Rohl, the latter two being mortgagees.

The controversy between the parties, which is the cause of the suit is shown to have grown out of the following state of facts: Hediger was the owner of a lot on one of the business streets of Centralia. On a lot adjoining it on the north a man by the name of Welton was erecting a brick building, the south wall of which was being so constructed that a portion of the same extended over the north line of Hediger’s lot and was by contract between the owners a party wall, in which Hediger had a half interest. On July 28, 1909, Hediger entered into a written contract with Petrea, a builder, to erect a business building on his lot for the sum of $3,592.00. By the contract Petrea agreed to construct the building according to certain plans and specifications which were a part of the same and to furnish all labor and materials. The specifications referred to contained the statement that they were “specifications for labor and materials required for the erection and completion of a business building, to be erected in the city of Centrada, etc., ’ ’ and further provided that the same kind of brick work, footings and materials, as used in the Welton building, should be furnished for the work.

It appeared that Messrs. Gr. P. and Berthold Bald-ridge were owners of the premises immediately south of Hediger’s, which at the time the contract was made, were vacant. Later, on August 6, 1909, a written contract was entered into between Hediger and the Bald-ridges, by which it was agreed that a party wall should be erected, resting one-half upon the premises of each, for which the Baldridges agreed to pay Hediger the sum of $250.00 as their half of the cost of building the same. Petrea proceeded to erect the building, including the south wall, and prior to the commencement of this suit had received on his contract $2,986.26, but claimed there was still due him the sum of $1,247.84. This amount included, in addition to the balance due on the written contract above referred to, $142.10 for extras and the sum of $500.00 claimed by Petrea to be due him for the erection of the south party wall, the building of which he says was not provided for or included in the original contract.

Plaintiffs in error do not contest the bill for extras but deny that Petrea is entitled to $500.00 for the building of the south party wall and aver that the same was included in the written contract price of $3,592.00. They also claim that the material used in the building was inferior, that the construction was imperfect, that the building was not completed according to contract, and that by reason thereof Petrea was not entitled to enforce his lien. Petrea testified that when the contract in writing was made it was understood between the parties that the south wall was not included; that it was not then determined whether the south wall would be all built on Hediger’s ground or whether it would be a party wall with the center on the line, nor was it then decided who would build it if a party wall should be decided upon; that if it was decided that Hediger should have the wall built, it would cost' $500.00 in addition to the price fixed by the contract. It also appeared that Petrea in making his contract with the sub-contractor Sliger, who did the brick work, provided only for the front and rear walls; that after the partnership wall was agreed upon between Hediger and the Baldridges, Petrea ordered Sliger to go ahead and build it and paid him $500.00 for it; that the Baldridges paid Hediger $250.00 for their half of the wall; Sliger testified that he had a talk with Hediger a short time before the written contract was signed and Hediger told him to leave out the partnership wall in his figuring, as he did not know but that some one else would build it; also that after the wall was built he and Petrea went to Hediger for his money and the latter said, “Tour money is now in the bank and the work is all done, and I cannot see for my life what they are holding out for;” that he heard a conversation between Petrea and Hediger wherein Petrea said that he had heard Hediger was going to object to paying for the partnership wall, and Hediger denied such intention and said he would pay for the job as quick as he could get straightened out and get the money from the Heims Brewing people. Hediger denied there was .any oral agreement about the partnership wall and claimed that he understood the same was included within the written contract. The court below sustained the claim of Petrea and gave him a lien upon the premises in question for the full amount claimed.

Plaintiffs in error assert the decree should be reversed for the reason that (1) the building of the south wall was included within the original contract and covered by the price therein named to be paid; (2) because the building was not completed according to the terms of the contract, and (3) because the court erred in admitting evidence of the parol contract in reference to the construction of the south wall and in refusing to admit a certain affidavit made by the witness Sliger and offered in evidence by plaintiffs in error. Without going into details we think it sufficient to say that the evidence in our opinion fully sustained the finding of the court below, that the building of the south wall was not included within the original contract and that the contract price therein named was not intended to cover the erection of the same.

In regard to the second reason for reversal assigned by plaintiffs in error, it appeared from the evidence introduced by them that there were certain defects, imperfections and omissions in the building when turned over by Petrea, but on the other hand it appeared from the evidence introduced by Petrea, that some of these imperfections had been corrected, that the contract did not call for finishing’ all the inside work, that other defects would be provided for and adjusted by workmen who would follow him, being part of their work and that the defects complained of were not important.

The proofs upon the whole appear to us to show that Petrea had in good faith substantially complied with the terms of his contract. The brief of plaintiffs in error is largely devoted to the citation pf authorities in support of their contention that the court erred in admitting parol evidence, relating to the construction of the south party wall. They insist, that the written contract is clear and unambiguous and that all previous negotiations between the parties must be held to be merged in the contract. We grant that as a general rule a contract, unambiguous in its terms, cannot be varied, contradicted or modified by parol evidence of conversations before its execution. Sexton v. Barrie, 102 Ill. App. 586. But in this case the written contract is not wholly free from ambiguity. It is conceded by the parties that no north wall was to be constructed by Petrea and yet it could be as well held that its terms included a north wall as a south wall, nothing being said in the contract about either one of them. The evidence also tends to show that after the south party wall had been agreed upon and ordered to be constructed, Hediger fully recognized his obligation to pay for the same. Under all the circumstances, we think the admission of the oral evidence Of the agreement of Hediger to pay for the south wall as an independent matter was proper and that it was necessary to prevent any injustice being done.

Upon the trial plaintiffs in error sought to introduce an affidavit made by the contractor Sliger, October 30, 1909, in which he stated that all the material and labor in connection with the brick work had been fully paid for and that there were no claims or liens against the property for the same. Sliger was not a party to the suit but only a witness. The affidavit could only have been offered for the purpose of impeachment. Sliger had been examined upon the witness stand- and his attention not called to the affidavit, and no foundation having been laid for its introduction, it was properly rejected.

This case appears to us to have been determined correctly by the court below upon the facts and no error materially effecting the rights of the parties appear to have been made upon the trial. The decree entered in the case will therefore be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    A. R. Johnson et al., Appellants, v. Ruth Sheets et al., Appellees.

      Judgment—when equity mil prevent enforcement. Where judgment in attachment is rendered in favor of defendant who immediately brings suit on the attachment bond against the sureties and gets judgment thereon, although the case was sought to be postponed on the ground that the original attachment suit was to be appealed, equity will grant relief against the enforcement of such judgment in the hands of an assignee who is cognizant of all the facts, where on appeal the attachment suit was sustained.
    Appeal from the City Court of Granite City; the Hon. J. M. Bandy, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1912.
    W. L. Coley, for appellants.
    Edward L. Maher, pro se, and others, for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellants filed a bill in chancery for an injunction to restrain proceeding, under execution issued upon a judgment ag’ainst them in favor of Buth Green, now the appellee Buth Sheets, and asking that said judgment be canceled of record and vacated; also that a certain judgment against said Buth Green now owned by them be set off against the judgment of said Buth Green against appellants. Buth Green, by her present name of Buth Sheets, Edward L. Maher, her attorney in the litigation above referred to, and Simon Henry, sheriff of Madison county, Hlinois, were made defendants to the bill, and filed a general demurrer thereto, which was sustained by the trial court. That court further decreed that appellants’ bill of complaint be dismissed for want of equity, and that the costs of snit be taxed against them.

The bill makes the following statement of the facts relied on: Heller and Livingston brought suit in attachment against said Ruth Green, before one' Sowell, a justice of the peace of said Madison county. She was duly served with summons in said cause and at the trial was represented by her attorney, the appellee, Edward Maher; The Commonwealth Steel Foundry Company, employer of said Ruth Green, was summoned by attachment as garnishee. The suit resulted in a judgment rendered November 8, 1909, in favor of the plaintiffs therein on an assumpsit issue for $11.00 and costs and in favor of the defendant on the attachment issue. The attachment bond was for $22.00, conditioned as provided by law and signed by appellants herein as sureties, Heller and Livingston being nonresidents. A few days after the judgment was so entered, the defendant Ruth Green, through her said attorney, brought suit on the bond before one Ryan, another justice of the peace of said county. Appellants alone were served with process and on November 20, 1909, the day set for trial, appellants, by their attorney, appeared before said Ryan at the hour of trial and notified him that the original suit, brought by Heller and Livingston against Ruth Green, would be appealed to the Circuit Court of Madison county; that it would stand for trial at the January term, 1910, of said court, and told the justice that he ought not hear said cause on the attachment bond until the final hearing on appeal of said former case. Nevertheless said Ryan proceeded to hear the cause and rendered judgment thereon in favor of Ruth Green and against appellants in the sum of $45.00 as damages, for wrongfully suing out the attachment writ in said former cause. At said time appellants had no legal defense to said cause before said Ryan, and could do nothing other than notify the parties to the suit and the justice of their intention to appeal from the judgment in the previous suit. Afterwards, within the twenty days allowed by law, the attachment suit was appealed to the Circuit Court of said county and at the January term, 1910, of said court, said cause was heard and the attachment was sustained in favor of Heller and Livingston against said Ruth Green. Said Maher was present representing Rnth Green in that proceeding. The bill further states that by reason of the above facts, the judgment rendered by justice of the peace Ryan, in favor of Ruth Green and against appellants, on the attachment bond, ceased to have any foundation and became in equity null and void; that nevertheless, appellee Maher, claiming to be the assignee of said judgment, but having full knowledge of all the facts and intending to injure, annoy and harass appellants, and to cast a cloud on the title to their property in said Madison county, did, on June 2, 1910, wrongfully cause a transcript of the judgment against them on the attachment bond to be filed in the office of the clerk of said Circuit Court; that by reáson thereof, said judgment appears to be a lien and cloud upon the property of appellants in said county, and that the same should be cancelled and declared of no force and effect; that on June 8, 1911, said Maher caused an execution to be issued upon said judgment to the sheriff of said county, which was served upon appellants, and that said sheriff threatens to and will, unless restrained by order of the court, levy upon and sell property of appellants for the satisfaction of said judgment; that said attachment, having been sustained in the Circuit Court upon appeal, they ought not in equity and good conscience be required to pay said judgment or any part thereof, and the same ought to be declared null and void and of no force and effect; that the record thereof should be cancelled and vacated and appellees perpetually restrained and enjoined from further annoying and harassing appellants on account of said judgment; that appellants have become the assignees of the judgment rendered on appeal in said attachment suit, no part of which has been paid, in favor of Heller and Livingston against said Ruth Green.

The prayer of the bill is that appellees be restrained and enjoined by the court, from proceeding further under said execution or judgment; that said judgment be canceled of record, vacated and set aside, or that appellants’ judgment against Ruth Green be set oft against appellants on said attachment bond.

The question presented to us is whether or not the facts stated in the bill, all of which, for the purposes of this hearing, must be taken as true, are sufficient to entitle appellants to the equitable relief prayed for.

The position of appellees, in support of their demurrer, is that equity will not interfere where there is or has been adequate remedy at law. It is not contended by them that appellants could now have any adequate remedy at law but it is insisted that they could at one time have that remedy by appealing to the Circuit Court from the judgment against them on the attachment bond. It is true that had they appealed from the judgment of justice of the peace Byan to the Circuit Court, they would in all probability have defeated the action against them upon the bond. But should their failure to pursue that remedy prevent them from obtaining relief in equity against the enforcement of a judgment against them on an attachment bond, when it was subsequently decided by a competent court that there had been in fáct no breach of the bond and thereby the foundation-, upon which the judgment rested, had been destroyed. It cannot be reasonably denied that it would be most inequitable to require appellants to pay a judgment recovered against them for the breach of a bond upon which they were sureties when, as a matter of fact, no such breach had occurred, and while the facts and circumstances relied upon to give them relief require a somewhat novel application of the principles of equity, yet we are not wholly without precedent upon this subject.

The case of McJilton v. Love, 13 Ill. 486, had many points in common with the case under consideration by us. In that case one Fairfield in May, 1846, through his attorneys, Field and Hall, recovered a judgment against James Love in the Circuit Court of the county of St. Louis, Missouri, for $800.00. Execution was issued and returned in October of that year satisfied in full by order of the plaintiff. About a month later, Field and Hall entered a motion to vacate the entry of satisfaction and award an execution on the judgment to enable them to collect the sum of $500 on the ground that so much of the judgment was assigned to them by Fairfield, with the knowledge of Love, before the return of the execution. On January 9, 1847, the court sustained the motion and set aside the entry of satisfaction as to $500.00, directing an execution to issue for that amount for the benefit of Field and Hall. Love resisted the motion and sued out a writ of error to the Supreme Court of the State of Missouri, which, at the March term, 1850, reversed the order of the court below, sustaining the motion of Field and Hall. In the meantime in March, 1847, Field and Hall, in the name of Fairfield, for their use, sued out of the Circuit Court of Madison county in this state, an attachment against Love, which was levied on certain real estate. They declared on the Missouri judgment above mentioned, alleging that $500.00 of it remained due and unpaid. Upon the trial Love introduced the return of the sheriff, showing the satisfaction of the judgment and Field and Hall produced a transcript of the subsequent proceedings. The court rendered a judgment against Love for $569.09 and awarded special execution against the property attached. Love prosecuted an appeal to the Supreme Court of this state, where the judgment against him was affirmed at the December term, 1848. Love v. Fairfield, 10 Ill. 303. Field and Hall subsequently assigned their judgment to McJilton, who bid in the property when it was sold under special execution and. received a certificate of purchase therefor. In April, 1850, after the Supreme Court of Missouri had reversed the order of the court below, sustaining the motion of Field and Hall, Love filed a bill in chancery in the Circuit Court of Madison county, Illinois, against Fair-field, Field, Hall and McJilton, setting forth the above facts, alleging that McJilton purchased the judgment, with knowledge of all the previous proceedings, and praying that the sale to him be set aside and the defendants enjoined from asserting any rights under the judgment, and on the hearing the trial court sustained his bill and granted the injunction prayed for. On appeal the Supreme Court of this state affirmed the decree of the court below. In the course of the opinion, the court stated, among other things, that so long as the order sustaining the claim of Field and Hall remained unreversed, Love was precluded from sustaining a plea of payment; that if he had offered to produce proof of payment to Fairfield, he would have been met with the objection that the court before which the judgment was obtained had judicially determined that the payment was made in fraud of their rights and therefore could not be interposed to defeat an action brought for their benefit; that he resorted to the only effectual means to remove the obstacle in the way of a perfect defense to the action in this state by procuring a writ of error to reverse the order vacating the entry of satisfaction made by the Missouri court; that the effect of the reversal of that order was to restore the entry of satisfaction and leave the judgment discharged of record; that it exonerated Love from the payment of any part of the judgment to Field and Hall, and left the judgment in this state without the least foundation upon which to rest; that the law is well settled that where ■ a judgment is reversed the parties are restored to their original rights, so far as it can be done without prejudice to third persons; that if the plaintiff has derived any benefit from the judgment, he must make as full restitution to the defendant as the circumstances of the case will permit; that if he has purchased property under the judgment, and still retains the ownership, the defendant may recover the specific property in the appropriate action; that the complainant had made out a clear case for the interposition of a court of equity against Fairfield, Field and Hall and that McJilton, as assignee, occupied no more favorable position than they; that he took the judgment subject to all defenses that existed against it in the hands of the party from whom he received it.

We have quoted at length from the above case for the reason that the facts there were so similar to the case under consideration, and because they seemed to raise substantially every question that could be raised here. The doctrine laid down as the law in that case appears to us to be conclusive of this case, and in accordance with it appellant was entitled to the relief prayed for in his bill, and the demurrer to the same should have been overruled. The decree of the court below will be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

jReversed and remanded.


text:
    P. L. Hunter, Appellee, v. J. E. Bumgardner, Appellant.
    1. Fraudulent conveyances—propositions of law. The proposition of law, that whenever a person sells or transfers his property to another, with intent to hinder, delay, or defraud his creditors, or his wife in her efforts to obtain her necessary support from him, then in such case, no action can be maintained by any of the parties to such fraud against any other party to such fraud, is correct.
    2. Fraudulent conveyances—Mils and notes. A finding of the court for plaintiff on a note which is alleged to have been given as false evidence of a purchase of property in a fraudulent scheme to hinder the wife of the owner of such property from collecting alimony at the termination of a divorce suit then pending, is supported by the evidence which, although conflicting, tends to show that the maker of the note, while holding the property in question as bailee, gave the note in payment therefor to the plaintiff, the payee, to whom the property had been given in satisfaction of a prior debt and who was not shown to have had any knowledge of the alleged fraud.
    Appeal from the Circuit Court of Fayette county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    Albert & Matheny, for appellant.
    Brown & Burnside, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit on a promissory note,' for $700.00, dated July 10, 1906, due twelve months after date, given by appellant, J. E. Bumgardner, to appellee, P. L. Hunter. To the ordinary declaration on a note, with the common counts, there was filed, in addition to the plea of non assumpsit, a special plea, which stated that one W. M. Hunter (a son of appellee) was involved in litigation with his wife, who was seeking to obtain alimony and separate maintenance; that in order to defraud his wife out of any judgment she might obtain, said Hunter fraudulently transferred divers horses and other property owned by him to the appellant; that said fraudulent transfer was made to defraud the creditors and wife of said Hunter; that, at the request of said Hunter and appellee and their agents, appellant made and delivered the note sued on as false evidence of a purchase of said property; that appellant was directed by said Hunter and appellee and their agents to sell said property so fraudulently transferred to him and to deduct from the sale price obtained all the cost and expense's of keeping, caring for and selling said property, together with pay for his services, and deliver the surplus to appellee and said Hunter and their agents, which the appellant did; that there was no valid consideration for said note and that the consideration therefor had wholly failed. A replication was filed to the special plea and issues were joined.

A jury having been waived by the parties, the trial was had before the court, who found in favor of appellee, and gave judgment for her in the sum of $452.91.

Propositions of law were presented by appellant, all of which were held in his favor by the court.

The theory of the law, held by these propositions, were substantially the same as that set forth in the third, which stated that, “Wherever a person sells or transfers his property to another, with intent to hinder, delay or defraud his creditors, or his wife in her efforts to obtain her necessary support from him, then in such case, no action can be maintained by any of the parties to. such fraud against any other party to such fraud.” There does not appear to be any difference of opinion between the parties as to the law governing the case, and the same is correctly stated by the propositions submitted and marked “held.” The only question presented to us is whether the proofs in the case were sufficient to sustain the finding and judgment of the court below in favor of appellee.

The proofs in the case were substantially as follows: P. L. Hunter, appellee, was the mother of W. M. Hunter and J. T. Hunter. W. M. Hunter was married and had two children and in the summer of 1905, a suit against him, brought by his wife for alimony and separate maintenance, was pending. She had obtained a decree against him for support and an appeal had been taken to the Appellate Court for the third district, which, on June 7, 1905, reversed the decree and remanded the cause with certain directions. Hunter v. Hunter, 121 Ill. App. 380. During the summer, it appears that appellee tried without success to sell some horses which he owned. Later on, during the same year, W. M. Hunter went to appellant, who then lived in Illinois, but who had rented a place near Fordyce, Arkansas, and was making arrangements to move there and asked appellant to ship his horses in the name of appellant or his brother, who was going along, stating, as appellant testified, that he wanted to get the property out of the reach of his wife. Appellant further testified that Hunter asked him to give a note for the property to show it had been transferred, but this was not done. The. horses and some other property were, however, shipped in December, 1905, with appellant’s property, to Fordyce, Arkansas, there being two car loads, one of which was shipped in the name of appellant, and the other in the name of his brother. Hunter also went to Fordyce and remained with appellant about two weeks, during which time the latter also kept the horses. At the end of the two weeks appellee, together with a niece and a child of the latter, came to Fordyce and they, together with W. M. Hunter, went to a place he had rented, taking with them his property which-had been at appellant’s place. They lived together on a rented place in Arkansas until June, 1906, when an officer from Shelby county, Illinois, came there who arrested W. M. Hunter for wife abandonment, and took him back to Illinois where he was confined in the jail of said county for some six months. Soon after W. M. Hunter was brought back to Illinois, his brother J. T. Hunter wrote to appellant telling him to sell everything off down there for appellee except the household goods, some harness and fly nets, which he was directed to send back to Illinois. Appellant shortly afterwards came back to Illinois and had a conference with the Hunter brothers, who asked him to look after appellee, their mother, and the stock and to sell the stock as rapidly as possible. Upon appellant’s return to Arkansas he took appellee to his house where she remained some three weeks, at the end of which time he made arrangements for her return to Illinois. It was while appellee was at the house of appellant, just before her return to Illinois, that appellant executed and gave to her the $700.00 note in suit.

Appellant testified that he said nothing to appellee when he gave her the note and that she made no remarks concerning it; that he never bought any property from her; that he never talked to appellee about buying the property; that as a matter of fact the property remained the property of W. M. Hunter; that there was no consideration for the note.

W. M. Hunter testified that he owed appellee, his mother, $1400.00 and that he sold the property to her for $1200.00 to be credited on that amount. His brother, J. T. Hunter, testified that he knew W. M. Hunter was indebted to his mother for borrowed money; that he, witness, asked appellant to sell the property for his mother and turn the money over to her and send her back soon; that appellant said the stuff ought to be worth $1,000.00; that witness told him, “If he wanted to keep the stuff to make ma a note for whatever he could invoice it at and he said he would do that and if he sold the property, he would divide the balance there was left;” that later he received a letter, introduced in evidence, from appellant in which he said he would give appellee his note for $700.00. Witness denied that he told appellant he wanted him to give the note to cover up the transaction of his brothers. There was some correspondence between the Hunter brothers and appellant, introduced in evidence, some of which tended to show that appellant had bought the property of appellee, while other parts tended to show that he was selling it either for W. M. Hunter or appellee.

Appellee was not a witness, and there was no competent evidence tending to charge her with knowledge of any fraud connected with the transaction in the course, of which she received the note. Appellant paid $265.00 which, on December 6, 1906, was credited on the note and this suit was brought for the balance.

The evidence in the case was conflicting, but upon the whole appears to us to have warranted the finding of the court below and the judgment will therefore.-be affirmed.

Judgment affirmed.

Mb. Justice McBride having tried this case in the court below, took no part here.


author: Mr. Presiding Justice Higbee

text:
    Roy Sellars, Appellee, v. Peabody Coal Company, Appellant.
    1. Mines and miners—duty of mine manager in permitting work under unsafe conditions. The provision of the Mining Act, section 18, that the operator of a mine may permit a man to enter the mine, to work under the direction of the mine manager, even where unsafe conditions exist, means that the manager under such conditions shall he vigilant to care for the safety of men under his charge.
    2. Mines and miners—when miner is not working in dangerous place under direction of mine manager. Where a miner employed to clear away a fall from the roof of a mine complies with instructions of the mine manager to make the roof temporarily safe, by setting props around the edges of the fall, and another fall occurs three days later causing injury, the manager not having given any directions or visited the place during the interim, the miner is not working under the directions of the mine manager as required by the Mining Act; section 18.
    3. Mines and miners—miner removing debris from ground is not making dangerous roof safe. Where a fall from the roof of a mine has occurred, and the miner has complied with instructions to make the roof temporarily safe by setting props around the edges of the fall, he is not, in removing the coal and material constituting the fall, making a dangerous place safe, and is entitled to the protection of the Mining Act when another fall occurs.
    4. Mines and miners—when wilful violation of statute as proximate cause of injury is for the jury. Where a miner employed to clear away a fall obeys instructions from the mine manager to make the roof temporarily safe by props, and another fall causing injury occurs three days later without the manager having again visited the place or given directions, whether such wilful violation of the Mining Act, section 18, was the proximate cause of ithe injury is for the jury.

      5. Mines and miners—when instruction is misleading. An instruction that if a miner in clearing away debris where a fall had occurred was restoring the place to a safe working condition under the direction of the mine manager, and was an experienced miner knowing the danger of another fall, he could not recover, is misleading in involving the inapplicable doctrine of contributory negligence.
    6. Mines and miners—when instruction improper in assuming facts. An instruction that if a miner was employed to set timbers under a roof where a fall had occurred, and to clean up the fall for the purpose of making the place safe, and was directed by the mine manager to set the timbers and clean up the fall, and was injured by another fall in performing work under the direction of the mine manager, he could not recover, is improper, where the uncontradicted evidence shows he was employed to remove the debris from the fall, and that setting of the props was only for temporary protection and not for the purpose of making the roof permanently safe.
    7. Mines and miners—instructions. Where a fall from the roof of a mine has occurred, and a miner by direction has set props under the dangerous place and is employed to remove the debris, and the mine manager does not visit the place before another fall occurs three days later, an instruction that if the manager went with the miner and directed him to set the timbers and clean up the fall, to make the place safe, and the miner was injured while performing the work he was directed to do, he cannot recover, does not state the law correctly.
    8. Appeals and errors—harmless error. The improper admission of testimony of a physician concerning future results of injury not based upon existing conditions is not injurious where a verdict for $600.00 for injuries from which a miner suffered great pain, loss of work, and reduction of earning capacity, might properly have been for a greater amount.
    Appeal from the Circuit Court of Williamson county; the Hon. Wm. W. Clemens, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    Denison & Spiller, for appellant; Mastín & Sherlock, of counsel.
    Hartwell & White, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This suit was brought by appellee to recover damages for personal injuries received by him, while working in appellant’s mine in Williamson county, Illinois, on February 23, 1909. The injuries were occasioned by a fall of slate from the roof in the room where appellee was working and the suit is based on the alleged wilful failure of appellant to comply with the provisions of sections 16 and 18 of the Mining Statute.

The declaration which contained five counts, charged that appellant wilfully failed to inspect said room for recent falls or other unsafe conditions on said day, and wilfully failed to make report of the condition of the' mine at that time, in a book kept for that purpose, before appellee was permitted to enter the mine; that appellant wilfully permitted appellee to enter the mine to work on said day, not under the direction of the mine manager, before all conditions had been made safe; that appellant wilfully failed at said time to inspect said room and inscribe on the walls the date of the inspection, and place a conspicuous mark thereat as notice for all men to keep out; that it wilfully failed to see that all dangerous places were properly marked and danger signals displayed. Each count alleged that plaintiff was injured as a direct result of the violation of the statute therein referred to.

There was a verdict and a judgment in favor of appellee for $600.00. Appellant complains of the action of the trial court in refusing to peremptorily instruct the jury to find defendant not guilty, thereby raising the question as to whether the evidence was sufficient to establish appellee’s case, and also states that the court erred in admitting improper evidence on behalf of appellee and in its rulings in regard to the instructions.

Appellee, as it appears from the proofs, on February 23, 1909, and for some time prior thereto, was employed as a coal miner in appellant’s mine. Along the south side of the sixth west entry off the fourth south entry were certain rooms, among others Nos. 22, 23 and 24. Sometime prior to said date there had been large falls in rooms 22 and 23, which closed them so that they were abandoned. Afterwards a new room was turned off east of and nearly at rig’ht angles to room 24, which was called new room No. 22, and after it had been driven some distance, another room was turned off from it towards the south, known as new room No. 23. The tracks over which the coal was hauled along the entry were extended to the face of room 24, and a sidetrack led off, about half way down the latter room, to new rooms 22 and 23.

Appellee Boy Sellars and his brother Theodore were working in new rooms 22 and 23 and Monroe Bussell was working in room 24. Several days prior to the. time of the injury a fall of coal and slate from the roof thereof had occurred in the roadway in room 24 which covered up the track about at the point where the switch turned off to new rooms 22 and 23, so that coal could not be hauled out from any of said three rooms. When appellee, his brother and Bussell went to work on February 18, 1909, they found the fall in room 24 and reported it to the mine manager, who said he would see about it the next day they worked. On the morning of February 20, at the bottom of the ■shaft, the manager made arrangements with them to clean it up, for which they were to receive the wages of one shift and pay for what coal there was in the fall. They then went to the fall which was about half a mile away when they discovered that another fall had occurred since they were last there. One of them went back for the -mine manager, who came to the place and made a new contract with them to clean it up at a rate agreed upon per hour. The place in the roof, from which the fall came, was from twelve to fifteen feet across and after the fall there was exposed in the roof a “slippery” soapstone. The mine manager, who was the only witness on the part of appellant, testified that such a roof is liable to fall after the top coal has come down without any warning, if not secured, and this fact was also testified to by witnesses for appellee. The manager told appellee and the two men working with him to set some props around the edges of the fall where the top coal was and also on the edge of the slate where it was broken, and marked the places where they were to be placed, which he said he knew would hold the roof temporarily. The props were set by the men around both sides of the fall, and along the edges thereof, as directed on February 20, and they worked there that day breaking up the coal and other material, constituting the fall, removing it from the track and shoveling it alongside towards the rib so the cars could pass. The next two days they did not work, but on the morning of the twenty-third they returned and continued clearing the track, until about 2:30 p. m. when a large mass, weighing several tons, suddenly fell from the place in the roof where ■the previous fall had occurred, killing appellee’s brother Theodore and striking appellee upon the shoulder, thereby severely injuring him. At the time he was injured, appellee was earning, when the mine was running on average time, from four to six dollars a day. By reason of his injuries he was unable to labor for four months, and since that time he has been unable to work as a coal miner in the manner he did before, and has not received over $2.25 a day. He incurred physicians ’ bills to a small amount and testified that at the time of the trial, more than two years later, his shoulder was still hurting him. It is the contention of appellant that the trial court should have directed a verdict of not guilty because, (1) appellee was working under the direction of the mine manager when he was injured; (2) was engaged in making a dangerous place safe at the time he was injured; (3) the evidence does not tend to prove that the wilful violation of the statute was the proximate cause of the injury, and (4) appellee, while engaged in the general work of making the place, where he was working, safe, was not within the class contemplated by the statute, for the protection of which the law was enacted.

Section 18 of the statute in reference to Mines and Miners provides that no one shall be allowed to enter the mine to work therein, except under the direction of the mine manager, until all conditions shall have been made safe.

We do not think the evidence in this case shows that appellee was working under the direction of the mine manager in such a way as to deprive him of the protection afforded by the statute. He, with the other two men, had been employed to clean up the fall and clear the tracks at the place in question by the manager and he had given them certain directions for protecting themselves, which they appear to have substantially followed. The fall which caused the injury, however, occurred three days later and in the meantime the men had not been given any directions by the manager or visited by him or any one for him nor had the place been examined, marked or reported by the mine examiner.

The provision in the statute that the operator of a mine may permit a man to enter the mine to work, under the direction of the mine manager, even where unsafe conditions exist, must be held to mean that the manager, under such conditions, will be vigilant to care for the safety of the men under his charge. In this case, however, while the instructions given by the manager were, as he himself asserts, only intended to. make the place temporarily safe, and while the construction of the roof was such, as shown by the proofs, that dangerous changes might occur at almost any time, yet the manager gave no further attention to the place or the men, and three days later, dangerous changes having taken place, a fall occurred and appellee was injured. To hold that appellee was, at the time of the injury, working under the direction of the mine manag’er would be to set at naught the provisions made by the statute for his safety. Nor were appellee and his companions, in our opinion, engaged at the time of his injury in making a dangerous place safe. All the evidence shows that they were engaged in removing the fall from the track and clearing the entry so that cars could pass over the track and the work of mining therein, and in new rooms 22 and 23, be proceeded with. The danger point was the roof above them and that they had no instructions to make safe, other than those originally given them by the mine manager for temporary purposes, which they had obeyed. Whether the wilful violation of the statute alleged was or was not the proximate cause of the injury received by appellee was a question of fact for the jury. The workmen at the place of the fall had no notice of danger other than that which they had attempted to provide against temporarily in accordance with the instructions of the mine manager, when they first went to work. It is certainly a reasonable inference that if the mine examiner had examined the roof at that point on the third day after they went to work he would have ascertained the danger and marked the place as required by law, and the workmen would have remained away from the point of danger. From what is above said it follows that the claim of appellant that appellee was not at the time of the injury entitled to the protection of the statute, for the reason he was engaged in the general work of making the place safe, is not well founded.

We are of opinion that under the proofs in the case, the court below did not err in refusing to instruct the jury to find appellant not guilty.

Appellant complains that over its objection, the court admitted the testimony of a physician concerning probable future results of his injury, which were said to be not based on conditions then existing. We are inclined to think the evidence was properly admitted, but at any rate its admission did not injure appellant’s case as it could only have bearing upon the amount of the verdict, which in this case was even smaller than the other proofs in the case would have warranted. Complaint is also made by appellant, that several miners who were examined, as witnesses, were permitted to testify as experts that a roof, such as that above the place where appellee was working, was dangerous. This testimony might well have been rejected by the court, but the other evidence in the case showed that the place was dangerous beyond all doubt, and appellant itself insisted, as one of its defenses, that appellee was working under the direction of the mine manager in making a dangerous place safe. So the admission of the testimony did not constitute material error.

Appellant complains that sixteen of the instructions it offered were refused, and the refused instructions are discussed seriatim.

The first refused instruction told the jury that, if they believed from the evidence the work appellee was doing was part of the general work of cleaning up the fall and restoring the place where the fall had occurred to a safe working condition, and that appellee was doing such work under the direction of the mine manager, and was an experienced miner knowing the dangers to which he was exposed while doing such work, he could not recover. This instruction was misleading in that it appears to involve the question of contributory negligence on the part of appellee, which could not be involved in this case, and the same statement is applicable to refused instruction No. 16 which more directly invoked the doctrine of contributory negligence on the part of appellee.

Refused instruction No. 8 told the jury that if appellee was employed by the mine manager to set timbers under the roof, at or near the place where the fall had occurred, to clean up the fall for the purpose of making the place safe, and that the manager went with appellee and directed him to set the timbers and clean up the fall to make the place safe, and that appellee was injured while performing the work he was directed by the mine manager to do, he could not recover for such injury. The vice of this instruction is that it appears to assume that appellee was employed to set timbers, under the roof, and clean up the fall for the purpose of making the place safe, whereas the uncontradicted evidence showed that he was employed to clean up the entry so that the cars could pass over the tracks and the work of mining proceed, and that the setting of the timbers was only for temporary protection for them during the prosecution of the work, and not for the purpose of making the room permanently safe. Also because the latter part of the instruction told the jury in effect that if the manager went with appellee, and gave him directions when he set him to work, and he was injured while performing that work by a fall which occurred three days later, he could not recover, which under the circumstances shown by the proofs, was not a correct statement of ■the law.

We have carefully examined appellant’s other refused instructions, and have arrived at the conclusion that the court committed no reversible error in refusing to give them.

The instructions given for appellee were unnecessarily numerous and complicated, but while the court might well have refused some of them and thereby simplified the trial, and made the law governing the case easier of comprehension by the jury, yet we cannot say there was such error in giving them as would make necessary the reversal of a judgment in a case like this, where substantial justice appears to have been done.

The judgment of the court below will be affirmed.

Affirmed.


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    William U. Halbert, Administrator, Plaintiff in Error, v. Trader’s Live Stock Exchange, Defendant in Error.
    Boards of trade—bill to recover value of membership. A bill of an administrator of a member of a live stock exchange against the exchange to recover the market value of the certificate, containing appropriate averments as to the liability, and proceeding under the theory that there is a trust fund for the redemption of such certificates and that the market value of such certificate should be ascertained, and on refusal to pay for it a lien should be established against the fund, is not demurrable on the ground that the remedy at law must be first exhausted.
    Error to City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1912.
    E. W. Eggman, for plaintiff in error.
    Whitnel, Browning & Gillespie, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit in chancery, instituted by William TJ. Halbert, as administrator of the estate of Frank Moonan, deceased-, to recover the value of a certain certificate of membership in the Trader’s Live Stock Exchange held by Moonan at the time of his death.

The bill alleged, among other things, that said Frank Moonan, was at the time of his death, a member in good standing of said exchange, a corporation located at the National Stock Yards in the county of St. Clair and state of Illinois; that the same was an organization of stock men, formed for the protection of the live stock interests of its members; that in accordance with the by-laws of the association it was necessary, in order to become a member, to pay the sum of $500.00 ■into the treasury of the association to he elected to ■membership; that Moonan had been elected to membership in the association and paid the treasury thereof, the said sum of $500.00; that a certificate of membership was issued to said intestate, entitling him to all the privileges of membership, including a sale of the same; that plaintiff in error could not attach a copy of intestate’s certificate of membership in said association, for the reason that he was unable to obtain possession of the same; that deceased was, at the time of his death, in possession of said certificate and that all fines and dues owing on the same, had been paid to the association and no forfeiture, sale or assignment had been made of the same and said certificate was, at said time, in full force and validity; that during the time said Moonan held a membership in said association and at the time of his death, there was in force a rule containing certain provisions, among which were that the membership in the exchange should be $500.00 and upon payment of that fee the secretary and treasurer should issue a certificate of membership, transferable on payment of a fee of $50.00; should any certificate of membership in the name of a deceased member, on which all fines and dues have been paid, be offered for redemption, the board of directors might, at their option, purchase, cancel and retire the same at a price, not to exceed $100.00 above the current market price of memberships, the said market price to be ascertained and determined by the board of directors; provided, however, that the minimum redemption fee should be not less than $300.00; should any membership in the name of a deceased member not be offered for redemption, the board of directors might vote a benefit not to exceed $100.00 to his estate.

The bill further alleged that shortly after the death of the intestate, said association obtained possession of said certificate of membership, without the knowledge or permission of appellee, and refused to deliver the same to appellee upon demand; that after obtaining possession of said certificate, the association caused the same to be canceled; that plaintiff in error received no consideration or payment for the cancellation of said certificate and had no notice of its surrender and delivery to said association until long after it had been surrendered and cancelled; that he is entitled to the possession of said certificate arid all the interest of decedent therein and became entitled to the value thereof upon the confiscation and cancellation of the same by said association; that said membership of intestate in said association was, at the time of his death, worth $600.00 and said sum was the fair market value of said certificate at said time and is at the present time; that by reason of the wrongful conversion and cancellation of said certificate by said association, plaintiff in error became entitled to the sum of $600.00 for the benefit of said estate; that said association is composed of about fifty members and is organized for mutual benefit and not for pecuniary profit; that it has no property or surplus earnings except a fund held for the purpose of making redemption of its certificates of membership, said fund being held by the officers of said association as a trust fund for said purpose; that said fund is not subject to garnishment or execution and can only be subjected to the lien and claim of plaintiff in error by the order and decree of a court of equity; that said association, by its wrongful possession of said certificate and refusal to deliver the same to plaintiff in error, is guilty of fraud and by reason of its conversion of the certificate to its own use has become liable to pay plaintiff in error the sum of $600.00, being the full value of said certificate.

' The prayer of the petition was that plaintiff in error be decreed to be entitled to the possession of said certificate; that an accounting be taken under the direction of the court as to the current market price of the same at the time of the wrongful and unauthorized cancellation thereof; that the association be required to pay to plaintiff in error the current market value of the certificate by a short day to be fixed by the court; that the association be decreed to hold said sum so found to be the current market value of said certificate in trust for plaintiff in error as administrator of said estate, and ordered and decreed to pay to him said sum for such uses and purposes; and that plaintiff in error have general equitable relief.

Defendant in error filed a demurrer to said bill stating as grounds therefor that complainant had not exhausted his remedy at law; that the bill did not show a demand which could be enforced primarily in equity or that defendant was insolvent; that the facts shown by the bill, if true, would entitle complainant to a judgment at law and that there was no equity on the face of the bill. The court sustained the demurrer and dismissed the bill for want of equity with costs against complainant. The principal contentions of defendant in error in support of the decree of the court below dismissing the bill, are, first, that intestate’s certificate of membership in said association is to be likened to a membership in the Chicago Board of Trade, which, it has been held by our Supreme Court, is not such property as can be subjected to the payment of the debts of the holder by legal proceeding. Second, that if said fund can be held to be in any way subject to the payment of the claim of plaintiff in error he must first exhaust his remedy at law, and that if the association has a surplus fund for the redemption of certificates of membership there is no reason why an execution issued upon a judgment against it could not be made; or if the association has wrongfully converted the certificate to its own use trover will lie for the same.

On the other hand plaintiff in error insists that the fund in the hands of the association being, as alleged, a trust fund, the proper and most appropriate way of reaching it and subjecting it to the payment of his claim, is by invoking the aid of a court of equity.

In the consideration of the questions presented, we are of course confined to the allegations of the bill and must accept them as true. We must therefore assume, as charged in the bill, that while defendant in error is organized for the mutual benefit of its members and not for pecuniary profit, yet that it is necessary, before one can become a member of the same, to pay $500.00 into the treasury and that this amount was paid by the intestate; that the rules regarding membership provided, should any certificate of membership in the name of a deceased member, on which all fines and dues have been paid, be offered for redemption, the board of directors might purchase, cancel and retire the same at a price not exceeding $100.00 above the current market price of the same, and that the minimum redemption fee should not be less than $300.00; that said association has a fund held for the purpose of mailing redemption of its certificates of membership and that the same is held by its officers as a trust fund for that purpose; that the fair market value of the certificates at the time of the death of the intestate, and at the filing of the bill was $600.00; that said certificate had come into the possession of the association since the death of the intestate and had been canceled and that the same had not been delivered to the association by any one having legal authority, or authorized by plaintiff in error, to do so. From these allegations it clearly appears the certificate was an asset of the estate of the intestate and that under the by-laws of the association it had a value; that the officers of the association have a fund which they hold in trust for the payment of such certificate, and that having elected to treat the certificate as offered for redemption and having canceled and retired the same, it was the duty of the directors to ascertain and determine the current market price of the same as provided by the rules and, having done so, to pay such price over to plaintiff in error; that the directors not having done so, plaintiff in error had a right to maintain his bill in equity to require the market price of said certificate to be ascertained as the rules direct, to establish his lien for the amount so determined upon said trust fund and to require the payment of the amount of such lien from said fund by the directors or other proper officers of defendant in error.

It follows that the court below erred in sustaining the demurrer to the bill of plaintiff in error and the decree is therefore reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


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    Catherine Horttman, Appellee, v. Illinois State Trust Company, Appellant.
    1. Pledge—misappropriation. Where the owner of notes permits the same together with a mortgage as collateral security therefor, to he pledged hy a third party as security for a loan of a certain amount, and a bank knowing the facts gives a greater loan than authorized by the owner, on receiving such security, and sells the same on default of payment for about one fourth its value, the owner is entitled to recover from the hank the loss sustained.
    2. Evidence—conversations relative to transactions. In a suit to recover for the value of collateral security given to the pledgee on a loan being made to a third party, evidence as to any conversation had between the pledgee and the third party receiving the loan, in the absence of the plaintiff, relative to such security, is inadmissible.
    3. Instructions—modification. An instruction relative to the receipt of collateral security hy the pledgee as security for a loan made to a third party, which ignores the question of the right to make a greater loan than authorized hy the owner of such security, is properly modified to include such point where the same has been raised by the evidence in the case.
    4. Pledgee—credit for redeeming pledged property from master's sale. Where the holder of a mortgage permits the same together with the notes for which it was given as security to be pledged as security for a loan to a third party, the pledgee, who has wrongfully sold the same and is being sued therefor, is not entitled to any credit against the owner of the mortgage for redeeming the mortgaged property from a master’s sale where it was not done with the knowledge or consent of such owner, and where the property was of sufficient value to pay the mortgage debt in addition to the amount paid for such redemption.
    5. Damages—when not excessive for wrongful sale of pledged securities. A judgment of $3,000 against a pledgee, for the wrongful sale of securities, is not excessive where the owner had authorized but a $500 loan to a third party on such securities in which he had a $3,000 interest and on which two years’ interest was due at the time of the judgment.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 31, 1912.
    Maurice V. Joyce and A. B. Garrett, for appellant.
    Webb & Webb and Louis A. Klingel, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This suit was originally brought by appellee against the Illinois State Trust Company in replevin, to recover certain notes and a mortgage claimed by her, and later was changed to a case in trover, alleging the wrongful conversion of the property by said company, and seeking a recovery for the value thereof. Subsequently appellee took leave to amend and added appellant as a party defendant. At the conclusion of appellee’s evidence, the court directed a verdict in favor of the Illinois State Trust Company, but refused to give such instruction in favor of appellant, and the case proceeded against the latter alone.

The jury returned a verdict against appellant for $3,000.00 and judgment was entered for that amount.

The following case is presented by the facts: On April 15, 1907, L. M. Jeffries, borrowed $3,000.00 from appellee, through a loan agent named F. W. Puderer. As evidence of the loan he executed a principal note for said amount, together with six semiannual interest notes for $90.00 each, both principal and interest notes, bearing interest at the rate of six per cent, per annum from maturity, and also a mortgage on certain real estate in Denverside subdivision of East St. Louis, Illinois. Jeffries was a frequent visitor at the home of appellee and, according to the testimony, was then “keeping company” with her daughter, Mathilda Horttman. Early in the spring of 1908, Jeffries applied to F. T. Joyner, vice-president and cashier of appellant, at the bank for a loan of $500.00, proposing to secure the same by good collateral and stating the collateral would be a mortgage which belonged to • a lady friend. Sometime afterwards, Jeffries brought the $3,000.00 mortgage and the notes secured thereby to the bank. Accompanying the papers, which were left with Joyner, was an abstract of title to the property covered by the mortgage, and upon examining the same he found there were several mechanics ’ liens, amounting to several hundred dollars, against the premises, and that the same had been sold by the master in chancery to satisfy the liens. A few days later, on April 20, 1908, he and Mathilda Horttman went to the bank to close the loan, when Joyner told them that the liens must be cleaned up before the loan could be completed. After considerable discussion it was arranged that the bank should make the loan for $1,000.00, instead of $500.00, which it did, taking Jeffries’ note therefor and a collateral agreement in writing signed by him and Mathilda Horttman, pledging the $3,000.00 mortgage and notes. At that time appellee had collected two of the $90.00 interest notes, leaving unpaid four interest notes in addition to the $3,000.00 principal note. Of the $1,000.00 so borrowed, appellant retained $384.53, which it used to redeem the property from the master’s sale and paid the balance to Jeffries. Sometime later the note was increased to $1,500.00 and the collateral again pledged in the same manner by Jeffries and Mathilda Horttman to secure the same. The Jeffries note for $1,500.00 was renewed in like manner several times, the interest each time being added to the principal and the last note given by him, being dated June 1, 1909, for the sum of $1,588.00. The bank was unable to collect this note and, therefore, on November 1, 1909, it sold the collateral for $1,631.00 to F. W. Kraft to satisfy the debt and expenses attending the sale. Two days later, this suit was commenced by appellee. It is not disputed that the $3,000 mortgage and the notes secured thereby belonged to appellee and that she authorized Jeffries to pledge the same to appellant for a loan of $500.00.

Appellant insists here that the verdict was against the weight of the evidence, that the court erred in rejecting certain evidence offered by it, that the court improperly modified two instructions offered by it, and •that the verdict was excessive.

The principal question of fact in controversy was as to whether appellant or its officers knew that Mathilda Horttman was not the owner of the notes and mortgage deposited as collateral. Joyner, the cashier, and Jeffries, both swore that there was nothing said at the time the original loan was negotiated tending to show that she was not in fact the owner of the collateral. While on the other hand Mathilda Horttman testified that she' told Joyner, when it was proposed to make the loan $1,000.00 instead of $500.00, that she was not the owner of the $3,000.00 note and mortgage, but that her mother was; that her mother did not know anything about it, and that she had only agreed to let Jeffries take it for $500.00, and that Joyner replied, “Oh, that is all right; that will be paid and Mr. Jeffries will take care of that, your mother won’t need to know anything about it.” Another witness, Puderer, who made the loan on the real estate for appellee to Jeffries, testified that Joyner asked him about the loan and he told him that he had made it to appellee; that he requested Joyner to hold up the loan a short time until he could find out how Jeffries got possession of the paper, and consent was given for the delay; that he consulted appellee and afterwards told Joyner that it was all right that Jeffries was to have $500.00 on the papers. Another witness testified to facts tending to impeach the testimony of Jeffries, his statement being that Jeffries told him that both he and Miss Horttman told Joyner that the papers belonged to appellee. Taking all this evidence in consideration, together with the circumstances of the case, the preponderance of the evidence would appear to show that the cashier, Joyner, knew at the time he made the loan of $1,000.00, that the collateral did not belong to Mathilda Horttman, and that Jeffries was only authorized to borrow $500.00 on it.

A preponderance of the evidence also showed that while the collateral was sold for $1,631.00, the property described in the mortgage, which secured the $3,000.00 loan, was worth from $3,500.00 to $4,500.00. Upon the facts as a whole, appellee was entitled to recover.

Joyner testified in speaking of Jeffries’ application for the loan, “I asked him why he did not sell the mortgage and he said it did not belong to him; that it belonged to a lady friend of his.” Counsel for appellee objected to any further conversation between Joyner and Jeffries at that time, as it was in the absence of appellee and the court sustained the objection. This objection was properly sustained, as it appeared that Joyner was informed that Jeffries did not own the mortgage and that he was at that time only seeking to borrow the $500.00, which he had been authorized by appellee to borrow on the collateral. Objections of appellee to certain other statements of Jeffries to Joyner, at the time the loan was increased to $1,500.00, and at the time when Miss Horttman was present with them when the loan was negotiated, were sustained by the court. We are inclined to the opinion that these statements were, under the circumstances of this case, properly refused admittance, but as a matter of fact, the substance of them appears to have been made known to the jury in the admitted testimony of the various witnesses.

No instructions were given for appellee. Five were offered for appellant, all of which were given, but instructions Nos. 2 and 3 of those given, were modified by the court and of these modifications appellant complains. Instruction No. 2 as modified was as follows, the modification being shown by the italics:

“The court instructs the jury that if you believe from the evidence, that the plaintiff herein permitted any person to take possession of the note in question, for the purpose of using the same, as collateral security, for a loan, then in such case, the person accepting such note as such security, without notice of any limitation of the use of such paper, would have the right to hold the same for whatever sum was loaned upon such security. And if you believe from the weight of the evidence that the defendant obtained the note in question, as collateral security for a loan made under such conditions, and, pursuant to a power of sale given at the time such loan was made, sold said note and applied the proceeds thereof in payment of said loan, then the plaintiff cannot recover of the defendant for said note and your verdict should be for the defendant. Unless you further believe from the evidence that at the time of talcing such collateral, defendant had notice that Jeffries was authorized to pledge the same for the sum of five hundred dollars only.”

These modifications appear to us to have been not only proper but necessary to make the instruction a valid one under the proofs in this case. If appellant’s cashier had notice at the time the loan was made that Jeffries was authorized to pledge the same for only the sum of $500.00, then appellant had no right to take the same as security for a loan of $1,000.00 as it did in the first instance, nor to take it as collateral security for a note of $1,500.00 as was subsequently done and to sell such collateral to pay said debt; What is above said will apply with equal force to appellant’s criticism of the modification of its third instruction.

Appellant insists that it should have had credit for the $384.53 paid by it to redeem the mortgaged property from the master’s sale, as the same was necessary to protect the security. This payment was a voluntary act on the part of appellant, without consideration and not made at the request or with the knowledge of appellee. Under such circumstances, appellant has no legal right to recover the same from appellee. (30 Cyc. 1298.) But apart from the general rule of law governing such instructions, appellant should not be permitted credit for the amount paid, as against appellee’s mortgage, as it made this payment with the knowledge, consent and really for the benefit of Jeffries, the owner, and the mortgaged premises were of sufficient value, as shown by the proofs, to not only pay the mortgage debt of appellee, but the additional amount paid by appellant to redeem them from said sale. Nor was the judgment in this case excessive. The date of the note and mortgage was April 15, 1907, and appellee had collected the interest for only one year. She was entitled to recover the $3,000.00 principal, less the $500.00 which she had authorized Jeffries to borrow on the collateral, from April 15, 1908, to the date of the verdict, September 25, 1911. The interest was payable semiannually and for two years was evidenced by interest notes, which bore interest from maturity. The principal and interest together would fully amount to the sum of $3,000.00, for which appellee received judgment. The judgment of the court below will be affirmed.

Affirmed.


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    City of Christopher, Appellee, v. John Massotti et al., Appellants.
    1. Cities and villages—intoxicating liquors. Under Cities and Villages Act, art. 5, giving municipalities the power to “license, regulate and prohibit the selling, etc., of intoxicating liquors,” a city or village has no power to pass an ordinance prohibiting the storage of liquor for future delivery.
    2. Dramshops—variance. Where a complaint is based solely upon the breach of a liquor ordinance which is held invalid, other charges, although supported by the evidence are not available.
    Appeal from the Circuit Court of Franklin county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 31, 1912.
    D. F. Moore, for appellants.
    W. H. Williams, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Separate complaints were filed against appellants, John Massotti and Dominick Rebufino, charging them with a violation of Section 3 of Ordinance No. 1 of the City of Christopher, Illinois, but the suits were afterwards, by agreement of the parties, tried together, before the justice of the peace, where they were instituted and in the Circuit Court to which they were taken by appeal.

The section of the ordinance, which appellants were charged with having violated, was as follows: “No person or persons either as principal, clerk, servant or agent, of any person, brewery or wholesale or retail liquor house, shall, within the corporate limits of the city of Christopher, deliver, distribute or store in any place for the purpose of future delivery, sale or distribution, any consignment or shipment of the liquors herein named. ’ ’

The jury by their verdict found both the defendants guilty “of storing for future delivery, certain malted liquors in a building within the corporate limits of the city of Christopher, in violation of the ordinance of said city, in manner and form as charged in the complaints.” They also fixed the amount of fine to be paid by each of said defendants at the sum of $70.00. The court entered judgment upon the verdict, against each defendant for $70.00 and costs and ordered that execution issue for the same.

The proofs show that appellants were owners or in control of certain cold storage houses in the city of Christopher and were also licensed teamsters; that they were accustomed to receive beer in car load lots, from brewers, place it in their storage houses and afterwards deliver it to consumers throughout the city. The evidence in the case is unsatisfactory and from the same it cannot be determined whether appellants were acting for themselves, for the brewers or for the purchasers and consumers of the beer. It simply appeared that they received the beer, put it in the storage houses and then delivered it. The terms upon which and the length of time for which the beer was stored are not disclosed by the proofs, nor does it appear whether the storage houses were kept exclusively for the storage of beer or were used for a general cold storage business.

The first and principal question raised by appellants is that the city had no power to enact that section of the ordinance upon which the prosecution is based, and if that contention is well founded, these suits must fail. The section in question, as above set forth, provides, that no person shall “deliver, distribute or store in any place, for the purpose of future delivery, sale or distribution, any consignment or shipment of the liquors herein named.”

The complaints charged the violation of said section of the ordinance “by delivering and storing for the purpose of future delivery, certain malted liquors,” in buildings, whose locations were described and the verdict of the jury found the defendants guilty “of storing for future delivery, certain malted liquors in a building within the corporate limits of the city of Christopher.”

The question presented for our consideration, therefore, is whether or not the city had the power, under the statutes of the state, to pass an ordinance prohibiting the storage of malted liquors for the purpose of future delivery. It is insisted by appellee that Article five of the Act in relation to Cities, Villages and Towns, which gives municipalities named therein the power “to license,, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor,” is broad enough to authorize the ordinance above referred to upon the subject in question. This power, it will be observed, is limited to the right to license, regulate and prohibit the selling or giving away of intoxicating, malt, or vinous liquors, but the charge against the defendants and the ordinance invoked is not for selling or giving away of malt liquors but for the storage for future delivery and, in our opinion, is not within the power granted by this section of the statute.

Appellants relied, as one of their defenses, upon the fact that the city, after the commencement of this suit and before its trial on appeal in the Circuit Court, by another ordinance, suspended the operation of the ordinance in question “so long as the city remains or continues to be anti-saloon territory.” It is claimed by appellants that the repeal or suspension of said ordinance operated to put an end to the prosecution of these suits, because the repealing ordinance did not contain a saving clause providing for keeping the same in being. Viewing this case as we do it is not necessary for us to determine whether a general repealing ordinance providing that, “no suit, proceeding or rights vested under or by virtue of any ordinance before its repeal or modification, shall be annulled, released or discharged or in any wise affected by the passage of such repealing or modifying ordinance, but the same may be recovered, prosecuted, completed and enjoyed as fully in all respects as if such ordinance or part thereof, had remained in full force, unless otherwise expressly provided in the ordinance, making such repeal,” would operate to save the prosecution of this suit or not. We are of the opinion that under the law, appellee had no authority to pass an ordinance providing a penalty, merely for the storage of the liquors in question, within the city for the purpose of future delivery, and that the appellants could not be rightfully convicted under such an ordinance.

It is contended, however, by appellee that appellants’ course of conduct in receiving, storing, and delivering the liquors in question, constituted in effect, a shift or device to evade the provisions of the act in regard to anti-saloon territory and comes within the scope of section 13 of said act.

A consideration of the proofs shows that this claim of appellee is not without substantial foundation but it cannot avail the city in this suit, for the reason that the complaint does not charge that the transaction constituted a shift or device to evade the provisions of the act in relation to anti-saloon territory, but is based solely upon the breach of an ordinance, under which we have held a conviction cannot be sustained.

Some question is raised in the argument of the case as to whether the storage houses in question constituted common nuisances under the statute, and we therefore deem it proper to say that we do not intend to hold by anything contained in this opinion that a complaint could not be sustained, under a proper ordinance, if supported by proof, charging that the maintenance of a place where intoxicating liquor was stored for future delivery, had become a nuisance in fact and thereby constituted a nuisance under the statute and the provisions of such ordinance.

For the reasons above given the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


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    M. W. Cockrum, Appellant, v. Theodore C. Keller, Appellee.

      Fraud—special interrogatory. Where action is brought for alleged fraud in representing to the plaintiff that a core taken from his land by a drill showed that the coal thereunder contained a parting of foreign substances, when in fact a stratum over eight feet thick, practically free of foreign matter, existed, an answer to a special interrogatory as to thickness of the impurities in the coal as shown by the core taken by drilling, which stated that the thickness was seven inches, is not inconsistent with a general verdict for the plaintiff since the question will be held to refer to the core which the defendant represented came from the land.
    Appeal from the Circuit Court of Franklin county; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed October 31, 1912.
    Dillion & Strickland and Layman & Johnson, for appellant.
    William H. Hart, W. F. Spiller and Underwood & Smyser, for appellee; Charles R. Young, of counsel.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellant brought this suit against appellee for damages, charging fraud and deceit in connection with the sale of .certain coal interests.

The three counts of the declaration stated in substance that appellant, in June, 1905, was the owner of some 300 acres of coal and mineral lands in Franklin county and that appellee was a coal operator, desiring to buy the coal, mineral and gas underlying the same and certain lands contiguous thereto; that in order to ascertain the quality of the underlying mineral, appellee secured permission to drill a test-well upon his land and also upon two adjoining tracts; that appellee did go upon said lands and drill three prospect holes and secured three cores of coal, which demonstrated that said coal field contained a stratum of coal of eight feet six inches in thickness, practically free from foreign or faulty substance and of extra fine quality; that appellee showed appellant three cores of coal underlying the premises of the latter containing a parting of slate, rock or other foreign substance and representing to appellant that the stratum of coal underlying the premises of the latter, contained a parting of rock, slate or other foreign substance, and was therefore practically worthless; that said representations of appellant, as to said partings of rock, slate and other foreign substances, were untrue and were falsely and fraudulently made for the purpose of deceiving and defrauding appellant; that the stratum of coal so underlying the premises of appellant did not contain said parting of slate, rock or other foreign substances; that said parting contained in said cores of coal as exhibited was fraudulently placed there by appellee or his agent at his request; that appellant did not know that the representations of appellee as aforesaid were false, but relying upon the truth of the same, conveyed to appellee the coal, oil, gas and other minerals underlying said premises for the sum of $7.50 per acre to the damage of appellant of $16,000.00.

It appears from the proofs that appellee engaged the Sullivan Machinery Company to drill the prospect hole for him on appellant’s land and coal was struck on the evening of September 26, 1905; that the drilling proceeded for a time on the same evening after coal was struck and some three feet of the coal core was then removed from the core barrel, and the drill and the core barrel placed back in the prospect hole the drill shut down; that after it was ascertained coal had been struck, a controversy arose between certain parties interested in the enterprise as to who should be present to see the rest of the coal core taken from the ground; that after discussion, extending over some 12 or 15 hours, the remaining portion of the coal core was taken out and put in a box that had been prepared for that purpose with the three feet of core which had been taken out the day before; that it was then discovered that the core contained in the box, which was nine feet one inch in length, contained a parting or fault of slate, seven inches in width; that appellee declared the parting of slate made the coal practically worthless for mining purposes, but that he afterwards purchased the same for the amount above named.

Appellant claims he subsequently discovered that the parting of slate had been placed in the core by appellee, or under his direction, after the first three feet had been taken out and before the balance of the core was removed from the prospect hole and placed in the box, but this was denied by appellee. It is unnecessary to make a further statement of the evidence or to discuss the same, for the reason that there are other matters which must control in the disposition of the case in this court.

Upon the trial the court instructed the jury that in addition to a general verdict they should return special findings upon ten questions of fact submitted to them. They found a general verdict in favor of appellant, and assessed his damages at $3800.00. They also answered all of the special interrogatories submitted to them on behalf of appellee. Appellee thereupon entered a motion for judgment in its behalf and against appellant for costs on the special findings of fact, which motion was sustained by the court, and judgment was entered upon said special findings in favor of the appellee and against the appellant for costs.

Section 79 chapter 110 of our Revised Statutes provides in regard to special finding of fact that “When the special finding of fact is inconsistent with the general verdict, the former shall control the latter and the court may render judgment accordingly,” and the action of the court in entering judgment against appellant, notwithstanding the general verdict of the jury in his favor, was based upon this statute.

Special findings Nos. 1, 2, 4 and 5 related to the thickness of the coal vein underlying the premises of appellant, both as a matter of fact and as shown by the drilling of the hole, the answers being that there were nine feet of coal and one inch of foreign substances. The jury in answer to interrogatories 6, 7 and 8 found that appellee had not personally tampered with or changed the core taken out by the drilling on the land of appellant, but that he had personally directed or authorized it to be done and that he had made false statements concerning the coal underlying the land. Interrogatories 9 and 10 related to the original contract in writing between appellant and appellee, and the jury found the parties had entered into said contract under seal and had carried out the terms of the same. All of the interrogatories above referred to, appear, and are in effect conceded by the parties, to be in harmony with the general verdict rendered by the jury in favor of appellant. Special interrogatory 3 presented to the jury was as follows: “What thickness, if any of impurities, blue band, rock, mining fault, dirt or other foreign substance do you find exists within said coal, as shown by the core, taken from the land of plaintiff by drilling thereon?” and the answer of the jury to the same was, “Seven inches.”

It is said by appellee that the sole question, upon which the court permitted the case to go to the jury, was as to whether the coal core taken from the drill had been “Stuffed” or in other words, whether a part of the coal core had been removed and a parting of slate inserted for the purpose of malting it appear that the stratum of coal contained a thicker or larger layer of foreign substance than really belonged there, and he asserts that the answer to this interrogatory negatives appellant’s ground of action and is inconsistent with the general verdict of the jury. His claim is that the jury mean by their answer to find that the parting of seven inches of impurities was what actually existed in the vein of coal as it lay in the ground and was actually removed with the coal, surrounding it from the core barrel, as it came from the drill untouched by any person.

Appellant, on the contrary, asserts that, by their answer to said interrogatory, the jury intended to and did find that there was seven inches of impurities in the core after it had been placed in the box and was exhibited to appellant and others.

We do not intend to intimate that even if the question and answer referred to could be< held to bear the construction placed upon it by appellee, that taking into consideration all the other answers to the special interrogatories the court below would have been justified in entering judgment against the general verdict solely by reason of the answer given to this interrogatory. But apart from that question, we are of opinion that the question and answer plainly bear the construction placed upon them by appellant. The question requires the jury to find the thickness of the impurities which existed within the coal “as shown by the core taken from the land of plaintiff by drilling thereon.” This seems to us to refer to the core, as it appeared in the box, after having been taken from the land and was shown to the parties interested, and such, judging by the general verdict and the answers given to the other special interrogatories, was plainly the construction put upon the question by the jury. The special finding No. 3 was, therefore, not inconsistent with the general verdict, and the court below erred in entering judgment upon the special finding of fact in favor of appellee and against appellant for costs.

The judgment will be reversed and the cause remanded, with directions to the court below, to enter judgment in favor of appellant upon the general verdict for the sum of thirty-eight hundred dollars, together with the cost.

Reversed and remanded ivith directions.