text:
    James O. McConaughy, Appellant, v. Willis J. Huston et al., Appellees.
    Gen. No. 5,004.
    1. Landlord and tenant-when clause of lease mere nudum pactum. A provision in a lease as follows: “No other repairs except as hereafter mutually agreed upon” is a mere nudum pactum.

    2. Tendee-when insufficient. Held, that the tender made in this case in a justice court was insufficient and was not kept good.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Ogle county; the Hon. Richabd S. Farrakd, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Statement by tie Court. On March 2, 1907, James O. McConaughy rented a brick store building in Rochelle, Illinois, to Willis J. Huston and Lulu King, partners, doing business under the firm name of W. J. Huston & Co., from February 19, 1907, to January 1, 1908, rent to March 1, 1907, to be $10.50 and for the remainder of the term $35 per month, payable monthly in advance. The lease is in writing, signed by the parties under seal. It contains a clause: “1st party to raise floor where settled on south side and clean ceiling, and no other repairs except as hereafter mutually agreed.3 3 The landlord made the repairs provided for in the lease. For some months prior to September, 1907, the tenants called the landlord’s attention to the fact that the roof of the building was leaking more or less. The landlord said he would try and have it fixed and did have repairs made on the roof, but the tenants claimed they were insufficient. On August 21,1907, the tenants served notice upon the landlord that unless the roof was put in proper repair within ten days from the service of the notice they should consider the lease cancelled. The landlord had repairs made before August 30, but the tenants still claimed the repairs were insufficient. On September 3, the landlord brought suit before a justice, for the $35 rent, due September 1. On September 6, the tenants moved out, but the landlord did not accept the surrender of the premises.
    On September 7, the defendant paid to the justice “$9.87 as a tender to plaintiff for his demand and costs,” and also deposited the keys with the justice for the plaintiff. The plaintiff refused to accept the tender or the keys. A judgment was rendered before the justice that the “defendants recover from the plaintiff one dollar and their costs.” The plaintiff appealed to the Circuit Court. The justice did not transmit the tender to the Circuit Court, but retained it. In the Circuit Court a verdict was rendered in favor of the defendants. A motion for a new trial was overruled and judgment rendered against the plaintiff for costs; from that judgment the plaintiff appeals.
    W. P. Landon, J. C. Seyster and E. L. McConaughy, for appellant.
    . Baxter & Wirick and W. B. McHenry, for appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

By the lease the appellees owed the plaintiff $35 for rent, due September 1, which the evidence shows has not been paid. The lease called for certain enumerated repairs, which it is admitted were made by the appellant. The lease provides “no other repairs except as hereafter mutually agreed.” This clause is a nudum pactum and ineffective for any purpose. A change in the lease could only be made by some instrument under seal. To bind the landlord to make any other repairs than those enumerated would require a new contract in writing based on a new consideration. Goldsbrough v. Gable, 140 Ill. 269. The appellant did not agree to make any repairs to the roof in the written lease and was under - no obligation to repair it. Sunasack v. Morey, 196 Ill. 569; Watson v. Moulton, 100 Ill. App. 560. Ño reason is shown why the appellees are entitled to any relief against their express contract to pay the $35, due September 1.

The tender was insufficient and informal and admitted the amount tendered, less the costs at the time of making the tender, to be due. If plaintiff had not been entitled to recover more than the tender, the jury should have found for the defendants on the issue of tender. Appellees should have tendered a specific amount to the appellant and the costs, and the tender should have been forwarded by the justice to the Circuit Court. Under the evidence the jury should have found in favor of the plaintiff for $35, the amount of the rent due, or for- dollars in addition to said sum tendered, 'after the costs were deducted, naming an amount sufficient to make the total $35. The court could then render a proper judgment that the plaintiff accept the tender and have and recover of the defendants judgment for-dollars, over and above the said sum tendered, etc. The judgment is reversed and the cause remanded.

Reversed' and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Ora B. Esmond et al., Executors, Appellees, v. S. E. Esmond, Appellant.
    Gen. No. 5,008.
    1. Appeals and ebbors—what subject to review in absence of bill of exceptions. A judgment appealed from, in the absence of a bill of exceptions, will only be reviewed with respect to those matters which form a part of the common law record.
    2. Appeals and errors—when ruling subject to review, in absence of bill of exceptions. The action of the lower court in dismissing an appeal is subject to review even though no bill of exceptions is contained in the record.
    3. Appeals and errors—when appeal should not be dismissed. Where a party appeals from a judgment of a court of limited jurisdiction and has filed a transcript and an appeal bond has been properly approved, the appeal may not be dismissed for any informality or insufficiency in the transcript without giving the appealing party a reasonable opportunity to correct the defect.
    4. Appeals and errors—what questions cannot be raised on review. A question cannot be raised on review which was not raised in the trial court.
    5. Practice—what transcript in appeal from court of probate need not contain. A transcript in an appeal from the court of probate to the Circuit Court need not contain the entire proceedings in the estate, such as the probate of the will, unless the appeal is from the probate of the will.

      Objections to executors’ report. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    H. M. Kelly and D. B. Snow, for appellant.
    Chase Fowler, George P. Hills and Browse & Wiley, for appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

On March 12, 1907, Ora B. Esmond and Thomas W. Esmond, as executors of the last will of Cornelius W. Esmond, deceased, filed in the Prohate Court of La Salle county a report as executors of said estate. On May 27, 1907, S. C. Esmond, appellant, filed certain objections, involving several thousand dollars, to portions of the report made by the executors. There was a hearing in the Probate Court on the objections. On June 27, 1907, the court' overruled the objections and made an order approving’ the report of the executors. From the judgment overruling the objections S. C. Esmond prayed an appeal to the Circuit Court. A transcript was filed in the Circuit Court October 1, 1907. The case was set down for hearing at the October term of the court by agreement of both parties for December 24, 1907, and reset for January 6th. At the hearing on January 6th after the opening statements had been made to the court by counsel for both parties, the record shows that “the court stated that he would have to dismiss the appeal in the cause for the reason that it does not appear that the persons named in the transcript were ever appointed executors in said estate, or ever qualified as such, or that any such estate is pending in the Probate Court; thereupon counsel, for objector, S. C. Esmond, moved the court for a certiorari to the clerk of the Probate Court for more perfect record, which motion the court overruled and thereupon dismissed said appeal.” From the order of the Circuit Court dismissing that appeal the objector prosecutes this appeal.

There is no bill of exceptions in the record. The ordinary rule is that the judgment of a court cannot be reviewed without a bill of exceptions showing the grounds on which the court acted. To that rule, however, there is the exception when the judgment appealed from concerns a matter of pleading. The exception also includes cases where the record shows the grounds on which the court acted. Wiggins Ferry Co. v. People ex rel., 101 Ill. 446; People ex rel. v. C. & N. W. Ry. Co., 200 Ill. 289; Alley v. McCabe, 147 Ill. 410; City of Rockford v. Compton, 115 Ill. App. 406; Offield v. Siler, 15 Ill. App. 308; Radke Brewing Co. v. Granger, 101 Ill. App. 599.

The record in this case states that the court dismissed the appeal for the reason that it does not appear from the transcript that the persons named therein were executors in said estate. An assignment that the court erred in so dismissing the appeal is properly presented for decision without a bill of exceptions. It is not now contended by appellees that there was anything defective in the transcript or that it was necessary that the transcript should show the appointment of executors and the pendency of the estate in the Probate Court.

The transcript from the Probate Court shows a proper placita and sets out in full the report of the executors of the estate and the objections to such report by appellant. Only such part of the report as was objected to wherein the objections were overruled was appealed to the Circuit Court. No reason or authority is presented that requires the transcript from the Probate Court to show the entire proceedings in the estate. There was no necessity for the transcript showing the proceedings on the probate of the will unless the appeal was from the probate of the will. The record, showing the appellees as such executors had filed such report and that the Probate Court had approved it and overruled the objections thereto, was sufficient to show that the Probate Court had such an estate before it. It may be that upon the hearing of the objections, it might be necessary to offer in evidence the will and other papers in the estate, either to explain items in the account or for the purpose of some point in the objections, but that would not make it necessary to include such papers in the transcript sent up on the appeal for the purpose of giving the Circuit Court jurisdiction of the objections to the report. The appellees contend that the appellant confessed that the record was imperfect by asking for leave to procure a more perfect record. It was the right of appellant, when the court had intimated that he thought the record was insufficient, to try to meet the views of the court by procuring a record that would conform to the requirements of the court.

It is a general principle that where a party appeals from the judgment of a court of limited jurisdiction, and has filed a transcript and an appeal bond has been properly approved, the appeal may not be dismissed, for any informality or insufficiency in the transcript without giving the appealing party a reasonable opportunity to correct the defect, if it can be done, and he desires to correct it. Statute of Amendments and Jeofails, sec. 1. That opportunity was refused in this case.

Appellees further contend that another reason may be found in the record for dismissing the appeal. Appellees did not seek to have the appeal dismissed in the court below on the ground they now contend was a good cause for the dismissal, and the record shows that the court did not dismiss it on that ground. Appellees cannot raise a question here successfully which was not raised in the court below and which the opposite party has had no opportunity to meet, and concerning the merits of which we refrain from expressing any opinion in this decision, inasmuch as appellant desired to have a more complete record from the Probate Court, and that record might meet the reason urged in this court for the dismissal. We think the court erred in the dismissal of the appeal on the ground that the transcript was insufficient, and in not giving appellant an opportunity to file an amended transcript.

Reversed and remanded.


text:
    Frank J. Hennessey, Administrator, Appellee, v. Charles Walsh, Administrator, et al., Appellants.
    Gen. No. 5,013.
    1. Chancery-when reference to master necessary. In the absence of an agreement, reference to a master to state an account is essential to regular procedure in a foreclosure proceeding.
    2. Interest-at what rate should he. allowed. The court must allow interest at the rate provided for in a contract unless such rate is usurious.
    3. Statute oe Limitations-what tolls running of. Payments made and indorsed upon a note operate to toll the running of the statute and to start the same afresh from the date of the last payment.
    4. Evidence-effect of failing to produce. A party who takes a paper pertaining to a transaction in issue from the files of a court without leaving a copy thereof and who fails to produce the same on notice, thereby furnishes strong presumptions that such paper, if produced; would he prejudicial to his defense.
    Bill in equity. Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Statement by tie Court. On March 1, 1880, William Walsh and Catherine Walsh, his wife, executed a trust deed to Thomas P. Bonfield, on certain real estate in Iroquois county, Illinois, to secure the payment of $1,424, evidenced by four promissory notes .executed by William Walsh, of even date with the trust deed, each of the notes being for the sum of $356, payable to the order of Lemiiel Milk at Ohehanse, Illinois, on October 1, 1880, 1881, 1882 and 1883 respectively, with interest thereon at seven per cent, per annum until due and at the rate of eight per cent, per annum after due. The first of the notes was paid to Milk. The payee assigned the remaining three notes to Charles Gallagher, a bachelor brother of Catherine Walsh. Charles Gallagher died at the home of William Walsh in February, 1894, where he had made his home when out of work and in the winter time. William Gallagher by his will bequeathed the notes to Michael Gallagher, another bachelor brother. The probate records of Iroquois county show that these notes were delivered March 29, 1894, to Michael Gallagher by William Walsh, one of the executors of Charles Gallagher, who were the sons of William Walsh. William Walsh, the executor, at that time lived with his father. Michael Gallagher died intestate at the home of William Walsh, March 15, 1900. Frank J. Hennessey, the appellee, was appointed administrator of the estate of Michael Gallagher in July, 1900. The effects of Michael Gallagher were at the home of William Walsh at the date of his death and under the control of Walsh until September. Amongst the effects of Michael Gallagher were $139 in cash, a note for $175 executed by John Slater on which was a credit of $75, a note for $1,200 executed by Mrs. Milk, and his personal effects. William Walsh claimed the Slater note belonged to him and paid the funeral expenses out of the $139, retaining the balance. The three notes for $356 each could not be found. The appellee filed the bill in equity in this case October 28, 1903, to foreclose the trust deed securing the three notes dated March 1, 1880, making William Walsh, the maker, and various other parties defendants and with the bill filed an affidavit of the loss of the notes. William Walsh answered the bill, admitting the three notes had been turned over to Michael Gallagher by the executors of Charles Gallagher, but claiming that the notes had been paid to Charles Gallagher and Michael Gallagher in their lifetime by board and lodging furnished to the Gallagher brothers. The answer further alleges that the board, lodging and care bestowed on Charles Gallagher and Michael Gallagher, while they lived with said Walsh, including the nursing of them during their last illness, was worth greatly in excess of said notes and interest thereon, so that said notes were fully paid, hut states that no price was agreed on for board, etc., and that no money was ever paid to or demanded by either of said Gallaghers in their lifetime, nor any accounting had with reference to said board, etc., or said notes and interest, and that said Michael Gallagher told the said defendant that said notes were boarded out. The answer of Walsh states that the Slater note was given to said defendant in payment of board by Michael Gallagher. The answer also pleads and claims the benefit of the Statute of Limitations. William Walsh filed a cross-bill, making substantially the same allegations that are contained in the answer, and alleging that after the death of Michael Gallagher, William Walsh made a thorough search amongst the papers of Gallagher for the notes sought to be foreclosed, but no trace of them was found, and that cross-complainant believes Michael Gallagher destroyed them in his lifetime. The cross-bill alleges that the trust deed is a cloud on the title of cross-complainant to said lands and prays that said notes may be declared cancelled and the trustee be directed to release the trust deed.
    An answer was filed to the cross-bill denying the material allegations, and answers to the original bill were filed by other defendants, and those that did not answer were defaulted. Beplications were filed and the cause was referred to the master .in chancery to take and report the evidence. The evidence for the complainant in the original bill was taken, and thereafter, before the defendants’ evidence was taken, William Walsh died. The heirs and administrator of William Walsh were made parties and the pleadings amended to correspond with the change of parties. The master filed a report of evidence. The cause was then heard on the pleadings and the report of the evidence at the June term, 1904, before Judge Hilscher, who died before deciding the canse. The cause was again heard by agreement of the parties before another judge without any statement of an account by the master. The court found that the allegations of the original bill were proved; that there was due on the three promissory notes the sum of said notes with interest from October 1,1894, at the rate of eight per cent, per annum, and that the defendants were entitled to a credit on the notes of the sum of $12.50 for each and every month beginning with February 9, 1894, up to and including March 15, 1900, for board of Michael Gallagher during said time, and that said payment shall be considered as made and applied by said parties during their lifetime, respectively, and be credited on said notes, beginning October 1, 1894, and afterwards on the first day of each and every month in the manner and form of partial payments, and the remainder due on March 15, 1900, shall bear interest at eight per cent, per annum to the date of the decree, and that, after deducting the partial payments in said manner and calculating the interest, there is due from the estate of William Walsh, deceased, $740, and a solicitor’s fee of $74, being ten per cent, on the money due, as provided in the trust deed. The court further found that the cross-bill was not sustained by the evidence. It was further adjudged that in default of payment of said sum and solicitor’s fees within thirty days said premises described in said trust deed be sold, etc., and that the cross-bill be dismissed. The heirs and administrator of William Walsh, deceased, appeal from that decree.
    Granger & Granger, for appellants.
    Small & Brook and C. B. Campbell, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This cause should under the chancery practice in this state have been referred to the master to state the account, but by agreement of both parties it was tried by the court without such a statement. No error is assigned upon the fact that the court undertook the trouble of stating the account nor is it questioned but what the manner of stating the account adopted by the court as set forth in the decree is the correct method, if the premises found by the court are correct. Any error in procedure in not having a statement of the account by the master is waived.

The only questions assigned for error are that the court should not have found that the principal of the notes was due and unpaid October 1, 1894; that the court should have found that the cause of action was barred by the Statute of Limitations; that the court should have allowed a credit for board at the rate of $20 per month instead of $12.50 and that the court erred in allowing interest at eight per cent, per annum after October 1,1894.

The notes provided that they should bear interest at eight per cent, per annum after maturity. If the notes were not fully paid the court could not do otherwise than allow interest at the rate the parties had agreed upon.

After Michael Gallagher’s death, William Walsh, William Lamb, a nephew of William Walsh and Frank J. Hennessey, in a bank in Chebanse, figured on the amount due from Walsh on these notes. Walsh gave Lamb and Hennessey the data to figure upon. At that time Walsh said the notes bore six per cent, interest and the board was calculated at $12.50. There was also proof that Gallagher paid $2.50 per week for board and sometimes $10 per month. While proof was made that it was worth $18 or $20 per month, the court was justified in fixing $12.50 as the proper credit to be allowed and there was no error in the court’s action.

It is contended that the Statute of Limitations is a bar to the suit. The answer of William Walsh states that no money was ever asked for or paid on the notes, but that they were boarded out. William Walsh, who was one of the executors of Charles Gallagher, deceased, and was also a son of the maker of the notes, and one of the defendants, testified that while he was such executor and living with his father in 1894, he was authorized to indorse the amount of the board bill of Charles Gallagher for the previous years on the note and did so indorse them, and that there were other indorsements on them at that time but that he could not tell the amounts or dates. He also stated that Charles Gallagher was up to the time of his death boarding at William Walsh’s on these notes. If that be true, then William Walsh made a payment by board furnished Gallagher on these notes; that fact would prevent the running of the statute up to the date of the last board furnished. William Walsh, Jr., showed the notes to his father, who was interested as a legatee in Charles Gallagher’s estate, when he was paying a sister of Charles Gallagher a bequest made in the will. William Walsh was cognizant of the indorsement, and failing to repudiate it, the effect of the payment and indorsement was to toll the statute. Willett v. Maxwell, 169 Ill. 540. In 1900, after the death of Michael Gallagher, in conversation with various parties, William Walsh acknowledged the notes to be unpaid. He even prepared and filed a verified claim of $900 for board against the estate of Michael Gallagher. This through his counsel he withdrew from the files of the Probate Court without leaving a copy. Notice was given him to produce this that it might be used in evidence in the case, but it was not produced. This is a very strong-circumstance against the appellants. An account of that kind would keep alive the notes unless the statute had already run against them, and ten years had not intervened since credit had been given to Charles Gallagher on the notes by. furnishing him board to be applied in payment on them. The allegations of the answer and cross-bill show that it was the agreement between the parties that the board should be applied as a payment on the notes, and that there was almost every year some hoard furnished by William Walsh to the holder of the notes, and that indorsements for board were made, although the amount of the indorsements was not proven. The court was justified on the proven admissions of William Walsh and the agreed application of the board of the Gallaghers on the notes, in finding that the debt was a subsisting obligation and in decreeing a foreclosure. Where the evidence is conflicting this court will not disturb the decree unless it is clearly and manifestly against the weight of the evidence. Day v. Wright, 233 Ill. 218, and cases cited.

Some cross-errors have been assigned by the appellee but we do not find any merit in them. The decree is affirmed.

Affirmed.


text:
    Horace W. Blood, Adm’r, Appellee, v. Illinois Steel Company, Appellant.
    Gen. No. 5,016.
    1. Verdicts-—when set aside as against the evidence. A verdict clearly against the preponderance of the evidence will he set aside on review.
    2. Master and servant—when doctrine of assumed risk applies. A servant is held to have assumed the risk of injury when he voluntarily chooses a dangerous method in the performance of his work when the master has provided a safe one.
    Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed.
    Opinion filed August 10, 1908.
    Garnsey & Wood, for appellant; Knapp, Haynie & Campbell, of counsel.
    Frank J. Wise and J. W. Downey, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by Horace W. Blood, administrator of the estate of William T. Poole, deceased, against the Illinois Steel Company, to recover damages for the benefit of the next of kin, on account of the death of the intestate, alleged to have been caused by the negligence of appellant, April 17,1906, while the deceased was working in appellant’s roll mill. A jury returned a verdict for $9,000. A remittitur of $2,500 was entered and judgment rendered for $6,500. The defendant prosecutes this appeal.

The cause was submitted to the jury on four counts of the declaration which aver that the defendant negligently furnished a crane of insufficient strength to move certain heavy rolls, and that the mechanism of the crane was out of repair and unsafe, of which fact the defendant had notice, etc. No question is raised but that a cause of action is stated in the declaration.

The principal assignment of error, and the only one necessary to discuss, is that the judgment cannot be sustained on the evidence. The roll shop of appellant is a building in which heavy rolls used for the purpose of rolling iron or steel ingots into bars were dressed and turned down in lathes. The rolls are of different sizes, varying in weight from five hundred pounds to fourteen tons. Two large cranes worked by electric power are used in placing the rolls into and in taking them out of the lathes and in moving the rolls from one part of the shop to another. The deceased was a man. forty-six years of age who had worked in this shop for several months. Three weeks before the accident he had been promoted to be a cranesman. The foreman had instructed the deceased as to the management and use of the various appliances, and the deceased appeared to have operated the crane satisfactorily. As cranesman the deceased had general charge of the cranes, operating, oiling and adjusting them as he found necessary. The cranes are about twenty feet high, the boom being a few feet below the ceiling. In moving a roll the movement is in two directions. The roll is hoisted and then by means of a trolley device the roll is shifted in or out on the boom of the crane, an operation known as “racking in” or “racking out.” When light rolls are being moved the crane is managed by one man, and when the heavy rolls known as “bloom rolls” are being moved the eranesman has a helper. The levers, brakes and other appliances by which the crane is operated are situated at the bottom of the upright beam of the crane. Above the head of the eranesman where he stood at the levers and on the upright standard of the crane is a large iron gear wheel on the end of a shaft which winds up the heavy chain used in raising and lowering the rolls. This wheel is over four feet in diameter and has six spokes. A ladder hung on the wall twelve feet away from the crane. The purpose of this ladder was to climb about the crane to adjust or repair if when the repairs were beyond the reach of men on the floor. There was a friction brake on tlie hoisting mechanism of the crane at the foot of it, which had to be adjusted by tightening and loosening certain nuts according to the weight to be moved on the crane. The racking device is on the top of the crane and is independent of the hoisting device, except that the power is derived from the same shaft. The racking device was liable to get out of adjustment and it was the duty of the eranesman to adjust it, and whenever he could not adjust it machinists were sent to fix it. At the time of the accident the deceased and a helper were moving a thirteen-ton roll out of the lathe. The roll was raised up and then it was desired to rack the roll out. The racking device would not move in response to the racking lever. The deceased asked his helper to take charge of the brake lever, and climbed up and stood on the top of the four-foot gear wheel on the upright, or on one of the spokes of the wheel, to adjust the turnbuckle or nut on the racking device at the top of the crane. While the deceased was standing on the gearwheel something caused the wheel to turn letting the roll drop, about a foot. The deceased lost his balance and fell, striking his head on a casting, fracturing his skull and inflicting injuries from which he shortly died. This accident happened on Tuesday. On the preceding Sunday the racking device would not work, and the deceased at that time adjusted it. On that occasion he did not climb on the wheel, but used the ladder which hung near for that purpose. A man named Keats, who had been cranesman for four years before the deceased, instructed him at that time in regard to the adjustment.

The appellee claims the racking device failed to work because it was out of repair. The appellant claims that the helper was negligent and let the brake lever slip or that the deceased had not properly adjusted the nuts on the friction brake for the weight of the roll to be moved. There is no evidence that the hoisting apparatus, which is independent of the racking mechanism, was defective or worn, and it was the movement of the hoisting apparatus that caused the deceased to fall. Independent of these respective contentions, it is not disputed that a ladder was a few feet distant to be used for the purpose of reaching the place the deceased climbed and stood upon the greasy wheel to reach. The wheel the deceased climbed upon was not placed there to be used as a ladder. There was a ladder near, and the deceased had very recently used it. He knew the great weight that was hanging on the wheel, which was held by the friction brake, the adjustment of which was under his charge and that he had placed it under the control of his assistant. He knew the danger he assumed in climbing on the wheel. Two methods were presented to him to adjust the racking device: A safe way, by using the ladder provided by his employer; and a dangerous way, not provided for that purpose by the master, but adopted by the employe. He must, be held to have assumed the risk when he voluntarily chose a dangerous method in the performance of his work, when the master had provided a safe one. Kath v. East St. Louis & Sub. Ry. Co., 232 Ill. 126; Werk v. Ill. Steel. Co., 154 Ill. 427; O’Donnell v. MacVeigh, 205 Ill. 23; Kistner v. American Steel Foundries, 233 Ill. 35. The death of the appellee’s intestate was caused by his own negligence. The judgment is therefore reversed with a finding of fact.

Reversed.

Finding of fact to be incorporated in the judgment of the court: The death of William T. Poole was caused by his own want of ordinary care in the performance of his work in a method voluntarily assumed by him when the employer had provided a safe method.


text:
    Martha Wand, Plaintiff in Error, v. Thomas Wand, Sr., Defendant in Error.
    Gen. No. 5,019.

      Alimony—when amount fixed by court will not be disturbed. A decree fixing alimony and solicitor’s fees will not be disturbed as to amount unless there is a decided difference of opinion between the lower and the reviewing court.
    Separate maintenance. Error to the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    F. R. Moore and Nelly B. Kessler, for plaintiff in error.
    M. K. Smith and Kay, Saum & Kay, for defendant in error.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

On September 22, 1907, Martha Wand, plaintiff in error, filed her unverified bill in the Circuit Court of Iroquois county, charging her husband, Thomas Wand, 'Sr., defendant in error, with desertion, and praying for an allowance for her separate maintenance. The defendants filed a demurrer to the bill, which from thb record does not appear to have been passed upon. On November 20th the complainant entered her motion in such suit for an order for temporary alimony. On December 5th the court made an order for the payment to complainant of forty dollars per month as temporary alimony, the said, payments to begin December 1, 1907, and that the defendant pay within ten days the further sum of twenty dollars due the attending physician of complainant, and also the further sum of thirty dollars owing by complainant for coal and supplies. On December 11th the court, on motion of the complainant, jnade a further order that the defendant in error pay to “Moore & Kessler, solicitors for complainant, the sum of one hundred dollars within thirty days as and for their reasonable solicitor’s fees and expenses to date.” On December 21, the complainant made a motion “that the court increase the allowance for nurse attendance to begin as of the date of September 14, 1907.” This motion the court denied.

From that order complainant prosecutes this writ of error.

The affidavits filed on the hearing of the original motion for an allowance for complainant’s maintenance show that the complainant is seventy-two years of age and that the defendant is seventy-six years of age and owns real estate worth abont twenty-two thousand dollars ; that during the greater part of two years prior to the filing of the bill the defendant had paid her four hundred dollars per annum and for the remaining part of that time he paid her thirty dollars per month, which sum is considerably more than one-half of the defendant’s net income; that the complainant had in addition thereto the exclusive use of the defendant’s homestead, and received from renting part of the homestead one hundred dollars, and also received six dollars per month income from a small property of her own, and that she owes the defendant seven hundred dollars for borrowed money which had been secured by a mortgage on some real estate owned by complainant in Colorado, which mortgage defendant had released when complainant sold her said Colorado property.

From the affidavits presented to the court on the part of complainant, on the hearing of the motion the overruling of which this writ of error is prosecuted to reverse, it does not appear that her necessities are as great as they were when the first order for an allowance was made. She states that between November 20th and December 21st she has become a sufferer from vertigo, but that she feels better and stronger than she was in September when she had an attack of paralysis: The counter-affidavits show that when the motion for an increase of her allowance was made, she had recovered from her attack of paralysis, and was in her usual health and was about visiting her neighbors almost daily. It is also shown that the respondent is a cripple, and only gets about in a wheeled-chair; he claims to have had to leave his home because of his feeble condition and the refusal of complainant while she was in good health to give him any attention when he could not care for himself.

Both parties to this suit had been married before and had had children by their former marriages. The affidavit of complainant requests the court to order payments of twenty-five dollars per week from September 14, 1907, to David Booth, a son of complainant by her former marriage. From the affidavit of said son filed on behalf of complainant, he appears for some years to have been an invalid and unable to work, and. that in the fall of 1908 he agreed to go to Onarga to care for complainant, and that complainant was to pay him twelve dollars per month for her board, and he and bis wife were to live with the complainant, and that said Booth and his wife went to Onarga to live with complainant under such agreement. The motion from appellant’s own showing impresses us as being an attempt to get assistance for a stepson, rather than additional support for appellant.

Allowances to a wife for solicitors’fees and separate maintenance rest in the judicial discretion of the chancellor, and a decree fixing these will not be disturbed, unless there is a decided difference of opinion between the lower and the reviewing court. Aurand v. Aurand, 157 Ill. 321; Foss v. Foss, 100 Ill. 576. The only ruling of the court of which complaint is made is the refusal to increase the allowance for support, and we cannot from the showing made say that her allowance was insufficient. No change in the circumstances of complainant requiring an increase was shown. The order of the court overruling the motion is therefore affirmed.

Affirmed.


text:
    Patrick Foley, Appellee, v. Francis D. Everett et al., Appellants.
    Gen. No. 5,024.
    1. Personal injuries-what not competent in favor of landlord in suit for personal injuries. In an action by a third party for personal injuries occasioned by the want of repair of a building, a lease by which a tenant assumes the obligation to repair is not competent in favor of the landlord who is named as defendant.
    2. Evidence-right to limit effect of, by instructions. Held, that a will offered in evidence in this case was competent for the purpose of showing title, and that if it was believed that the wealth of the estate, as shown by such will, was lilcely to result in prejudice to the defendant, it was his right and privilege to ask instructions limiting the effect of such will, and, in the absence of so doing, the right to complain is lost.
    3. Damages-what may be recovered in an action for personal
      injuries. In an action for personal injuries, the plaintiff is entitled to recover for lost earnings, for the loss of future earnings, for pain, suffering, inconvenience, past and prospective, for expenses necessarily incurred in an effort to be cured, and in arriving at a correct verdict, the jury is entitled to consider in connection with evidence of permanent injury, the age and expectancy of life of the plaintiff.
    4. Vebdict—how may not he impeached. The verdict of a jury cannot be impeached by the statements of a juror shown either by the affidavit of himself or by the affidavit of a third party.
    5. Vebdict—what does not show excessiveness of. The fact that a jury and a court may materially differ with respect to the compensation which should he awarded to a plaintiff for injuries sustained, etc., does not establish the fact that the verdict is so excessive as to indicate passion, prejudice or other undue influence.
    6. Vebdict—when not excessive. A verdict of $25,000 reduced by remittitur to $12,500, rendered in an action on the case for personal injuries, held, not so grossly excessive as to indicate passion, prejudice or other undue influences, where it appeared that the plaintiff at the time of his injury was of the age of about thirty-one years, was strong, vigorous and healthy, was earning $3.40 per day and upwards, became as a result of the accident a physical wreck and a constant sufferer, with injuries consisting in part of a broken hip requiring the use of a crutch.
    Action in case for personal injuries. Appeal from the Circuit Court of Lake county; the Hon. Chables H. Dokweixy, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    David L. Zook, for appellants.
    B. J. Wellman and Orvis & Edwards, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a suit brought by Patrick Foley, appellee, against Frank D. Everett and George H. Campbell, appellants, to recover damages for injuries sustained by him from being struck by an iron shutter falling from an upper window of a building, which appellants were possessed of as trustees under a will. This is the second appeal of this case to this court. At the first trial there was a judgment for $10,000 in favor of appellee which was reversed by this court and the cause remanded. Everett v. Foley, 132 Ill. App. 438.

Upon the second trial the appellee recovered a verdict of $25,000. A remittitur was entered for $12,500 by the direction of the court, as a condition to overruling a motion for a new trial. A motion for a new trial was overruled and judgment was entered for $12,500. The defendants prosecute this appeal.

The opinion of this court on the former appeal states fully the nature and circumstances of the case and the law applicable to it. The gist of the action is that appellee was injured by the negligence of the appellants in permitting the shutters and hinges thereof, on a building of which they were possessed, to become and remain in a dangerous condition, by means whereof an iron shutter fell upon'the appellee while in an alley and seriously injured him.

The appellant offered, and the court admitted in .evidence a lease made October 21, 1904, leasing the premises from which the shutter fell to the Wonderland Company from May 1, 1904, to May 1, 1908. The appellants then offered in evidence a lease dated April 1, 1903, in effect from May 1,1903, to April 30, 1904, also leases for several years immediately preceding the last described lease. The court sustained an objection to all the leases except the one in effect at the date of the injury, July 21,1904. This ruling is assigned for error. The leases each contained a clause that the tenant received the premises in good repair and agreed to keep them in good repair at its own expense. The court properly sustained the objection for the reason that no matter what the agreement was it could not affect the appellee.

It is further insisted that, the court erroneously admitted in evidence the will of James Campbell, deceased, of whose estate the appellants are trustees. The will showed the title of appellants to the estate of which the building that the shutter fell from was a part. The codicil attached to the will empowered the trustees to borrow $50,000, instead of $20,000 as provided in the original will, for the purpose of improving and protecting the estate, and it is argued that the jury was prejudiced against appellants by the wealth of the estate as shown by these instruments. The will was proper evidence to show their title, and that they were furnished with funds to keep this building in repair, or had the right and authority to raise funds for that purpose. It was the right of appellants to'have had the effect of this evidence limited to the purpose for which it was offered, but there was no error in its admission. It is insisted that the codicil was not offered in evidence, but that the jury took it to the jury room when considering their verdict. The abstract contains a statement that the codicil never was offered in evidence. The record contains no such statement, but the codicil is contained in the record as a part of the will. The record shows that after the admission of the will and codicil in evidence, and while other evidence was being heard, counsel for appellants stated: “We desire in the matter of the will as it is presented here to particularly object to the introduction of the codicil to the will.” There was no error in the admission of the will and codicil, nor in taking them to the jury room.

In the former opinion it was said: “If the evidence shows that the shutter fell because of a state of decay that existed on May 1, 1904, that the appellant by reasonable care should have known of and remedied,” then a judgment for appellee can be sustained. In the former trial that character of evidence was entirely lacking. The evidence now shows that the shutter that fell was about eight feet long and two and one-half feet wide, made of iron the body of which is from an eighth to a fourth of an inch in thickness, and surrounded by a band from two to three inches wide and half an inch thick.

The shutter weighs from 150 to 250 pounds. It fell from the third story or about twenty-four feet. The part of the hinges that gave way was the part fastened into the wall. The parts of the hinges that broke were produced in evidence, with parts of the shutter and parts of brick that it was testified fell with the shutter. The part of the hinges attached to the wall at the top of the shutter broke off, leaving part of the hinge in the wall. The part of the middle hinge attached to the wall pulled out of the wall, and on the bottom hinge the part attached to the wall was broken off. Witnesses, who stated that they were accustomed to be in this alley, testify that they had noticed the condition of the wall both before the first of May, 1904, and after the accident, and that the wall was in bad condition, bricks rotten, cracking and crumbling out, and that the shutters were decayed, with holes rusted through them. One witness testified that that condition had existed four years before July, 1904. Another testified to its bad condition nine months before the accident. The pieces of iron offered in evidence had been fitted to the pieces remaining in the wall. There was direct testimony and expert testimony concerning the shutter and hinges, and as to what from their appearance had been their condition, which showed that the shutter and wall were in a very decayed condition, and that the hinges were almost eaten through by rust, so that there was danger of their falling, for a time extending back long prior to the date of the lease. There was also evidence offered by the appellants that the shutter, hinges and wall, were in good condition. That one hinge pulled out and the other two broke off, permitting the shutter to fall, is certain. There was ample testimony from which the jury might find that the shutter, wall and hinges, were in a decayed and dangerous condition on May 1, 1904. The jury saw the witnesses and were the judges of their credibility and the weig'ht to be given to their testimony. The trial court approved the finding of the jury as to the rights of the parties. We cannot say the jury was mistaken.

It is also insisted that one of the jurors was disqualified by reason of prejudice towards the defendants. An affidavit was filed in support of the motion for a new trial, stating that the affiant in conversation with one of the jurors after the return of the verdict, heard the juror say that the verdict was made larg’e to get even with one of the appellants. In connection with this affidavit was an affidavit of counsel that he had examined the juror as to whether he had any prejudice in the ease. These affidavits could not be considered by the court to impeach the verdict. The statements of a juror, after he has returned a verdict, cannot be received to impeach the verdict in this state. Allison v. People, 45 Ill. 37; Smith v. Smith, 169 Ill. 623; City of Chicago v. Saldman, 225 Ill. 629; Wyckoff v. Chicago City Ry. Co., 234 Ill. 613.

. It is claimed that the verdict of $25,000 was so excessive as to indicate passion and prejudice, and not a calm deliberate judgment on the part of the jury, and that the requirement by the trial court of a remittitur of one-half the amount of the verdict does not cure the evil effect of the supposed prejudice. The injury occurred July 21, 1904. The second trial in the Circuit Court was in November, 1907, more than three years after the accident. When the accident occurred the appellee was of the age of thirty-one years, strong, vigorous and healthy. He was a laborer working at digging deep foundation wells for sky scrapers, earning $3.40 per day of eight hours, and worked overtime to a considerable extent, for which he received fifty per cent, extra. The evidence shows unquestionably that the accident has made him a physical wreck and a constant sufferer. His pelvis was broken by the accident at the left hip. He has to wear a urinal bag all the time because of injury to the bladder, and has a hernia caused by the accident. There appears still to be an unhealed wound at the hip over which the skin will not grow. He walked on crutches for two years after he got out of the hospital and still uses one crutch, moving with much difficulty and pain. The appellants by their cross-examination of appellee injected into the suit the question of the appellee only getting a portion of the judgment, by showing the suit was prosecuted for a contingent fee.

There is no precise legal measure of damages in cases of this nature. A new trial should not be granted because there is a mere difference of opinion between the court and the jury as to the proper amount due for personal injuries.

The appellee is entitled to all the earnings that he has lost by reason of his loss of time since the injury and all that he will lose in the future. He is entitled to compensation for all his suffering, paiñ and inconvenience, past and prospective, and compensation for all medical expenses necessarily incurred by him. In arriving at the amount he is entitled to recover, his age and expectancy of life should be considered in connection with both his earning capacity and suffering. Reasonable men, exercising their calm judgment on all the evidence in this case, might arrive at a conclusion differing as widely as the jury and the trial court.

That the court required such a large remittitur does not necessarily prove prejudice on the part of the jury. Judgments have been sustained for amounts as large or larger than the amount of the verdict in this case, when the damages were no greater. Chicago & Eastern Ry. Co. v. Holland, 122 Ill. 461, (18 Ill. App. 418); Penn. Co. v. Barton, 130 Ill. App. 573; Postal Telegraph Co. v. Likes, 124 Ill. App. 459; P., C., C. & St. L. Ry. Co. v. Banfill, 107 Ill. App. 254 (Affirmed in 206 Ill. 553).

This is the second trial of this case. We find no error of law, and cannot say that more has been awarded to appellee than substantial justice requires. The-judgment is therefore affirmed.

Affirmed.


author: Mb. Presiding Justice Thompson

text:
    Peter Peterson, Appellant, v. Emanuel Mayer, Appellee.
    Gen. No. 5,027.
    1. Pbactice—what not part of record without incorporation in hill of exceptions. A bill of particulars is not a part of the record unless incorporated in a bill of exceptions.
    2. Mechanic’s liens—section IS of Act 1903 construed. Section 13 of the Mechanic’s Lien Act in force July 1, 1903, applies only to actions where an answer has been filed and the evidence has been heard.
    3. Mechanic’s liens—what law governs. The law in force at the time of the making of the contract governs the rights of the parties, but the law in force at the time of the proceeding to enforce such contract, controls the remedy and the procedure with respect thereto.
    4. Mechanic’s liens—when decree not har to action at law upon same cause of action. A decree in a mechanic’s lien proceeding is not a bar to an action at law for the contract price provided for in the contract involved in the lien proceeding, where such lien proceeding was not adjudicated upon the merits.
    Assumpsit. Appeal from the County Court of Rock Island county; the Hon. R. W. Olmstead, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Statement toy the Court. This is an action in assumpsit begun by appellant against the appellee in the County Court of Bock Island county. The declaration contains the common counts only and alleges the date of the cause of action under a videlicet as June 30, 1903. The defendant filed a plea of the general issue and also a special plea of former adjudication. The special plea avers that the plaintiff heretofore, to-wit, at the January term, 1904, of the Circuit Court of Bock Island county filed a bill for a mechanic’s lien against the defendant for the same cause of action in the said declaration above mentioned; that the matters in issue in this case are the same and not in any respects different from the matters in issue in the former suit; whereupon the said defendant, to-wit, at the said term “filed his demurrer which was sustained; whereupon the plaintiff filed his amended bill for the same cause of action in the said declaration mentioned and the matters in issue in this case are the same and not in any respect different from the matters in issue in said amended bill; whereupon the said defendant afterwards, to-wit, at the said term filed his demurrer to said amended bill, assigning special causes of demurrer, and thereupon, to-wit, on the 31st day of March, 1904, at the said term of the said Circuit Court, the said demurrer was sustained and a decree entered therein dismissing the amended bill of said plaintiff for want of equity, with costs to the defendant to be taxed * * * which decree remains in full force and effect not in the least reversed or made void,” and this the defendant is ready to verify by the record, wherefore he prays judgment, etc.
    To the special plea a demurrer was filed. The court overruled the demurrer. The plaintiff elected to abide by his demurrer. The following order was thereupon made: “It is therefore considered and ordered by the court that said defendant do have and recover of and from said plaintiff the costs of this suit herein expended and that execution issue therefor. And the said plaintiff appeals from the judgment of this court.”
    J. B. and J. L. Oakleaf and Seakle & Marshall, for appellant.
    W. R. Moore, for appellee.
   Mb. Presiding Justice Thompson

delivered the opin- ¡ ion of the court.

The record does not show that any judgment was rendered in bar of the action but both parties have treated it as a final judgment and the case will be considered on the merits of the pleadings.

There is incorporated in the record a bill of particulars filed subsequent to the filing of the declaration. The bill of particulars is no part of the declaration and not properly a part of the record when not incorporated therein by a bill of exceptions.

The special plea of former adjudication sets forth that the demurrer in the lien proceedings was a special demurrer and does not allege that the former judgment was on the merits. The appellee contends that the plea sets up a legal bar to the action under section 13 of chapter 82 of the statute (Mechanic’s Lien, Statute in force July 1, 1903), which provides: “Defendant shall answer the bill. * * * The owner shall be entitled to make any defense against the contractor by way of set off, recoupment or counter claim that he could in any action at law, and shall be entitled to the same right of recovery on proof of such in excess of the claim of the contractor against the contractor only but for matters not growing out of the contract such recovery shall be without prejudice to the rights of the subcontractors thereunder for payment out of the contract price or fund; and in the event that the court shall find, in any proceedings in chancery, that no right to a lien exists the contractor shall be entitled to recover against the owner as at law and the court shall render judgment as at law for the amount which the contractor is entitled to, together with the costs in the discretion of the court. * *

It is insisted by appellant that the lien law in force prior to July, 1903, governs the rights of the parties to this suit, and that the section quoted has no bearing on this case. So far as the rights of the parties to a lien are concerned that is a correct statement. The legislature however had a right to change the remedy so long as it did not interfere with contract rights. A change of remedy or of the course of procedure does not change the rights of the parties. The legal procedure must be pursuant to the law of procedure in force existing at the time the suit is prosecuted. ‘£ There can be no vested right in any particular remedy or in any special manner of enforcing it.” Woods v. Soucy, 166 Ill. 407; 6 Am. & Eng. Ency. of Law 947 (2nd ed.).

This statute from its language would only appear to apply to suits where an answer had been filed and the ' evidence heard. If the facts averred in the bill show there was no remedy in equity, then it was the constitutional right of each party to have the controversy tried by a jury. If the statute is given the construction that the provision for a recovery as at law only applies after answer and trial, then the construction we have given it might render it constitutional, and it is the duty of this court to give it such construction as would hold it constitutional. Havens & Geddes Co. v. Diamond, 93 Ill. App. 557; Endlieh on Interpretation of Statutes, 178. The court could not find that the contractor was entitled to recover without hearing the evidence. The plea avers that it was a special demurrer upon which the judgment was rendered in the chancery case, dismissing that suit for want of equity. A judgment for the defendant upon sustaining a general demurrer to a bill in equity is not a bar to a subsequent suit at law, where the ground for sustaining the demurrer is that complainant has mistaken his remedy, which was at law. Farmer’s & Mechanic’s Life Assn. v. Caine, 224 Ill. 599. The plea should either aver that the adjudication in the chancery case was on the merits, or better pleading would be to aver such facts that it can be seen such was the fact. The judgment is reversed, with directions to sustain the demurrer.

Reversed and remanded.


text:
    Frank Gschwendtner, Appellee, v. Charles Gebhardt, Appellant.
    Gen. No. 5,030
    1. Contracts—when contract price not agreed upon. The price to be paid for services rendered pursuant to a parol contract is not agreed upon or fixed where the same had been stated in an advertisement, which advertisement it does not appear was seen by the party sought to be charged.
    2. Appeals and errors'—when rulings upon the evidence not subject to review. ' The ruling of the trial court with respect to evidence is not subject to review in the absence of a bill of exceptions showing a motion for a new trial, the overruling thereof by the court and an exception to such action of the court by the complaining party.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Z. F. Yost, for appellant.
    Bert W. Adsit, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This was a suit begun by appellee before a justice of the peace to recover stud, fees claimed to be due for service to appellant’s mare during the breerjing season of 1906, according to printed and posted terms of service, and for what such service was reasonably worth if not the amount stated in the printed terms. The case was appealed from the justice court to the Circuit Court. At the close of all the evidence the defendant made a motion to exclude the evidence and to instruct the jury to find for the defendant. The court overruled the motion, and the jury found in favor of the plaintiff and assessed his damages at ten dollars. The bill of exceptions contains neither any refused instruction nor any motion for a new trial or any exception to the rendering of judgment. The defendant prosecutes this appeal.

The evidence shows that appellee had a stallion named Syrop, which was advertised to stand at his home five miles east of Pontiac on certain days and at other days at Odell. The advertisements stated the terms to be “$18 to insure a colt to stand and suck when conditions are met. When a mare changes ownership or is taken out of immediate community the service fee of $18 is due.” Appellant by his hired man sent the mare to appellee’s home to be bred in June, 1906, and afterwards in December, 1906, sold the mare. The appellant testified he did not know and never heard of that part of the terms, “When a mare changes ownership,” etc. Appellee’s claim is that he only stood the horse on the terms advertised. Appellee then proved what was the value of such services without a warranty of a colt. This it is claimed was error. Appellant sold his mare, which would make him liable for the stud fee of $18 under appellee’s terms: Ifappellant did not see the advertisement and did not know of appellee’s terms, then it is evident the minds of the parties never met and there was no express contract. Under that state of the c&stTappellgg'was entitTerTto recover on a quantum meruit upon ánlrmiTTéd^ümtTfl.ct for the value of the services. Phillips v. Roberts, 90 Ill. 492; Farrell v. Dooley, 17 Ill. App. 66; Squire Dingee Co. v. McDonald, 61 Ill. App. 607. Appellee was not by this suit seeking to enforce a lien under chapter eight of the statutes of Illinois.

An exception in a bill of exceptions to the overruling of a motion for a new trial is necessary in a case tried by a jury to authorize an appellate court to review questions involving the admission or exclusion of evidence or the sufficiency of the evidence to support the verdict. Chicago, Burlington & Quincy R. R. Co. v. Haselwood, 194 Ill. 69, and cases therein cited; Call v. People, 201 Ill. 499; C. & E. I. R. R. Co. v. Schmitz, 211 Ill. 446; I. C. R. R. Co. v. Johnson, 191 Ill. 594; Derby v. Peterson, 128 Ill. App. 494. Failure to incorporate in the bill of exceptions a motion for a new trial and an exception to the ruling of the court on the motion for a new trial, waives the right to a review of the questions that have been argued in this court. The judgment is affirmed.

Affirmed.


text:
    David Stephens, Appellant, v. John A. S. Neilson, Appellee.
    Gen. No. 5,039
    1. Instructions-when, as to right to disregard testimony of witness, erroneous. Contradiction or 'direct impeachment do not confer upon a jury the right entirely to disregard the testimony of a, witness.
    2. Instructions-when, as to preponderance of evidence, misleading. Held, that under the facts of this case, an instruction was misleading which told the jury that it was necessary for the plaintiff to make out his case by a preponderance of the evidence and that if the jury found that the evidence was evenly balanced, then the jury should find for the defendant.
    Distress for rent. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Brooks & Brooks, for appellant.
    Wooster & Edwards, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

John A. S. Neilson in August, 1905, rented a farm from David Stephens for the year March, 1906, to March 1, 1907, and gave notes for part of the rent. One of these notes became due March 1,1906. On June 25, 1906, the landlord issued a distress warrant for the sum of $238.84, claiming that sum was due and unpaid for rent. The defendant filed the general issue. On the trial the defendant claimed he had paid all the rent due, and produced a receipt for $250 signed by the landlord. The jury returned a verdict for the defendant. The court overruled a motion for a new trial and rendered judgment on the verdict. The plaintiff prosecutes this appeal.

The appellant admitted the signature tó the receipt was his writing, but claimed it had been torn off from another paper and that the receipt had been wrongfully written over his signature. The body of the receipt was in the writing of appellee. The evidence of the parties was in direct conflict. There also was evidence impeaching the reputation of the appellant for truth and veracity. In that state of the case the court gave the following instruction:

“Ton are instructed that in determining the question of fact in this case, you should consider the entire evidence introduced by the respective parties; but the jury are at liberty to disregard the statement of all such wit ■ nesses, if any there be, as have been successfully impeached either by direct contradiction or proof of having made different statements at other times, or of proof for bad reputation for truth and veracity in the neighborhoods in which they live, except in so far as such witnesses have been corroborated by other credible evidence or by facts or circumstances proven on the trial.”

A jury may only disregard the evidence of a witness, when from the evidence"they believe such witness has wilfully and knowingly sworn falsely to some matter material to the issues. It is not sufficient that the witness be contradicted or may make contradictory statements or be mistaken or that his reputation for truth and veracity be impeached. Such matters affect the credibility of the witness. Before the jury have the right to disregard the evidence of a witness they must believe from the evidence that the witness has wilfully and knowingly sworn falsely to some material matter. Beedle v. People, 204 Ill. 197; Matthews v. Granger, 196 Ill. 164; Healy v. People, 163 Ill. 372; Perkins v. Knisely, 204 Ill. 275; Chicago City Ry. Co. v. Ryan, 225 Ill. 287; Godair v. Ham Nat. Bank, 225 Ill. 572.

The second instruction given for the appellee was misleading. It told the jury that it is necessary for the plaintiff to make out his case by a preponderance of the evidence, and if the jury find the evidence evenly balancecl then the jury will find for the defendant. The defendant did not deny making the note and lease, and assumed the burden of proving payment. When the receipt had been proved and admitted in evidence, then the burden of explaining or contradicting it was upon the party executing it. If the proof offered to impair the written receipt neutralized or balanced the proof offered in its support, the receipt must be given its prima facie effect. Winchester v. Grosvenor, 44 Ill. 425; Ennis v. Pullman Car Co., 165 Ill. 161; Fitzgerald v. Coleman, 114 Ill. App. 25.

Where the evidence is in such irreconcilable conflict the jury should be accurately instructed. For the error in giving the appellee’s first instruction the judginent is reversed and the cause remanded.

Reversed and remanded.


text:
    Fred P. Auxer, Appellant, v. Edward Llewellyn, Appellee.
    Gen. No. 5,036.
    1. Maxims-extent of application in Illinois of rule of in pari delicto. The rule is not of universal application in this state that where parties voluntarily engage in an unlawful or illegal transaction, the law will hold them to be in pari delicto, and that there cannot be a recovery by one of the parties from the other, even when there is no statute providing for a recovery.
    2. Gambling-when recovery of money lost, may he had. Held, that notwithstanding the plaintiff sought to perpetrate a fraud, he was entitled to recover, in the interests of public policy, money lost or sought to be wagered upon a “fake” fight. The right of recovery in this state is recognized whether the bet is on a “sure thing” or upon an uncertain event.
    Attachment. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.

      Statement toy the Court. The record ■ shows that the plaintiff, Fred P. Auxer, and defendant, Edward Llewellyn, both reside in Cleveland, Ohio. Auxer first met Llewellyn in September, 1904. One Carrol, apparently a mutual friend of plaintiff and defendant, in September of that year met Auxer, and told him he knew of a good thing; if a man had $1,500 which could be used for a little while, a man could make $300 with no risks. He also told Auxer that one Taber had told him that it was proposed to pull off a fake prize fight in Illinois, and that a friend of his, Edward Llewellyn, whom he had known as a boy, was to be one of the fighters'; that Llewellyn was from Cleveland, and they wanted a man from Cleveland with $1,500 or $2,000 to come out with Llewellyn as a backer; that this money was .not to be used, but only to be deposited to show that Llewellyn had some finacial backing. Auxer then saw Llewellyn, and expressed a doubt whether lie could raise that much cash at that time. A friend of Auxer gave him a letter of credit for $1,500; this Auxer showed to Llewellyn, who said he did not know whether that would do or not, but Llewellyn said they would take it to Fair-bury, Illinois, to a man named Haughn, who would be able to tell whether it would do. Llewellyn told Auxer that Haughn -was connected with the Bloomington Athletic Club, and was the man who was to frame up this fight. Llewellyn showed Auxer some letters, between himself and Haughn, written on stationery of the Bloomington Athletic Club stating that in Bloomington they had a fighter named Bennett whom the sports had won considerable money on and they were willing to back him to a considerable extent against Llewellyn, and that Hauglm was to manage the deal. It wás proposed that Bennett was to be beaten by Llewellyn, and Haughn said in the letters that these sports had been cleaning up a lot of money, while he had been working in his official capacity for the club, and that he now proposed to make a little money himself so he had framed up this fight.

      Auxer, Taber and Llewellyn left Cleveland and came to Fairbury, where they met Haughn in a room in the Thomas House. Auxer showed his letter of credit to Haughn, who told him that it would not do, that they must have cash to deposit in the bank, and that he ought to have $2,000, so that if his standing was questioned the money could be produced. Auxer went back to Cleveland and procured a certified check for $1,500 and $500 cash, and then returned to Fairbury, arriving there Sunday evening, and deposited the $2,000 in the First National Bank of Fairbury on Monday morning. That evening the Bloomington sports, Funk and Livingston, arrived with Bennett. It had been arranged between Haughn, Llewellyn and Auxer that a match should first be made for about $2,500 a side, and that they would make some side bets later. The plan was that Llewellyn and Auxer should leave the hotel, apparently to get the money to bet with, and upon their return to the hotel Haughn was to meet them in the hallway and hand Auxer the money to wager on the fight; Auxer would then bet the money handed to him by Haughn with the Bloomington parties, Auxer 'at no time putting up any of his money; Haughn seemingly acting as the stakeholder would apparently place the money in the satchel and put it in the safe in the hotel. The next two days the same performance was repeated, except that these bets were $1,500. The fake fight was to take place on Friday. On Friday morning Haughn suggested that the Bloomington people had some more money, and that they make another bet of $2,500 a side. The agreement for this bet was made in the hotel, and Auxer and Llewellyn started as usual down the street, making a show of going after the money. When they were on the street, Auxer noticed that the Bloomington men were following them and called Llewellyn’s attention to it; Llewéllyn said “You will have to make good now. Those fellows are right behind us. It won’t make any difference; you draw the money and Haughn will hand it back to you. ’ ’ They went into the bank, followed by the Bloomington people, and Auxer drew the $2,000. They then returned to the Thomas House, where Auxer handed the $2,000 to Haughn, thus apparently betting his own money. He realized immediately that he had been fleeced, and went to his room with Llewellyn and Taber, where he accused them of being in the steal. They assured him it was all right. Haughn sent Bennett up to Auxer’s room, to tell them ‘1 They were ready to pull off the fight.” Auxer went down stairs, but would not go to the place where the fake fight was to be held. All went out on the street, and Auxer hunted up the mayor and had Llewellyn, Taber, Haughn and the Bloomington parties arrested. Llewellyn apparently had no money while he was on the way from Cleveland to Fairbury. Auxer understood he was to get $300 from Haughn or Llewellyn or some other person out of the money they expected to win from the Bloomington people, and that the Bloomington fighter was to let Llewellyn beat him and Llewellyn was to be declared the winner. Auxer, apparently betting with the Bloomington parties, placed his money with Haughn and not with Llewellyn. Llewellyn when arrested on the day that the fight was to have occurred had no money. All that he had was a satchel with a pair of old boxing gloves. He and Taber were arrested a second time, when they were about to go away on a train a day or two later; and then Llewellyn had $60 in his pocket and $800 concealed in his hat. This money was placed in the First National Bank, and is the property attached in this suit.
    Fred P. Auxer began this suit in attachment against Edward Llewellyn in the Circuit Court of Livingston county on September 24, 1904. The affidavit for the attachment states that Llewellyn is indebted to Auxer $870, and that the defendant obtained the same by conspiring with other persons, and that the defendant is about to depart from this State with the intention of having his effects removed therefrom, and other statutory reasons. The declaration contains the common counts. The only plea is the general issue. At the close of plaintiff’s evidence the court directed a verdict for the defendant. A motion for a new trial was overruled, judgment entered on the verdict and plaintiff appeals.
    White & Tuesburg, for appellant.
    A. C. Norton, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The only question presented for review is the propriety of the instruction to the jury to find for the defendant. Appellant by his own showing was ambitious to become a member of a class of confidence sharks. He willingly joined with Llewellyn, Taber and Haughn in an arrangement with Bennett that Bennett and Llewellyn should have a fake fight, in which appellee was to win, and the Bloomington sports, who had bet their money on Bennett, were to lose and Auxer who had nominally bet his money on Llewellyn on a sure thing was to win, and was to receive $300 “easy money” for permitting his name to be used as a financial backer of Llewellyn, although he believed he was not risking anything. The proof tends to show that the real conspiracy was between Llewellyn, Bennett, Haughn, Taber, Funk and Livingston “to make a killing,” and that Auxer was the lamb they had selected for the sacrifice. Before the time for the fight arrived, appellant realized how he had been trapped and had repented and demanded his money back.

Appellant in making out his case shows that he believed that he and appellee, with Haughn, Taber and Bennett, were engaged in an unlawful enterprise against Funk and Livingston. It is claimed they were in pari delicto, and the Circuit Court held that the maxim potior est conditio defendentis applies. Appellee cites Shaffner v. Pinchback, 133 Ill. 410; Mosher v. Griffin, 51 Ill. 184, and the dissenting opinions in Pearce v. Foote, 113 Ill. 244, and Stewart v. Wright, 147 Fed. R. 336, in support of his contention that because of this maxim the court should leave the parties as it finds them.

The rule is not of universal application in this State that where parties voluntarily engage in an unlawful or illegal transaction, the law will hold them to be in pari delicto, and that there cannot be a recovery by one of the parties from the other, even when there is no statute providing for a recovery. Evans v. Funk, 151 Ill. 650; Herrick v. Lynch, 150 Ill. 283; Paige v. Hieronymus, 180 Ill. 637.

At the common law, gambling contracts when fair and free from cheating, were assumed by the court to be valid. There were however certain classes of wagering contracts which were exceptions to the general rule. 14 Am. & Eng. Ency. of Law, 2nd Ed., 586. By the Statute of Illinois all gambling is prohibited and all gambling contracts are made invalid, except contracts of insurance (sections 126 to 137 of the Criminal Code). Section 132 of the Criminal Code provides: Any person who shall at any time or sitting, by playing at cards, dice or any other game or games, or by betting on the side or hands of such as do game, or by any wager or bet upon any race, fight, pastime, sport, lot, chance, casualty, election of unknown or contingent event whatever, lose to any person so playing or betting any sum of money, or other valuable thing amounting in the whole to the sum of $10, and shall pay or deliver the same, or any part thereof, the person so losing and paying or delivering the same shall be at liberty to sue for and recover the money, goods or other valuable thing, so lost and paid or delivered or any part thereof, or the full value of the same, by action of debt, replevin, assumpsit or trover or proceeding in chancery, from the winner thereof with costs in any court of competent jurisdiction. In any such action at law it shall be sufficient for the plaintiff to declare generally as in actions of debt or ..assumpsit for money had and received by the defendant to the plaintiff’s use,” etc. By sections 231 to 235 of the Criminal Code, prize fighting, sparring and boxing are made illegal and criminal, and all parties who participate in or encourage or promote such contests are liable to fine or imprisonment. Section 132 provides that parties wagering their money on a fight may after they have parted with it sue and recover the same. A fight is illegal even if the parties thereto honestly endeavor to overcome each other. If there are no degrees in crime, then it was not more wrongful because the fight was a cheat and fixed.

It is said appellant did not lose his money to appellee, but to Haughn. “There is and can be no such thing as agency in the perpetration of crimes or misdemeanors, or indeed in the doing of any unlawful act. All parties actively participating are principals.” Pearce v. Foote, 113 Ill. 228. The maxim, applies “Who acts through another is in law considered as doing it himself.” If Haughn received the money of appellant on a bet and divided the proceeds with appellee then appellee must be held to be a winner of the money of appellant. In view of the statute the maxim potior est conditio defendentis cannot be invoked to bar this suit. Recoveries have been sustained on transactions very similar to the case at bar, in the following cases: Snyder v. Nelson, 101 Ill. App. 619; Falkenberg v. Allen, 90 Pacific R. 415 (Okla.), 10 L. R. A. 494 (N. S.); Hobbs v. Boatright, 195 Mo. 693; Lockman v. Cobb, 77 Ark. 279; Stewart v. Wright, 147 Fed. R. 321. We are of the opinion that while the appellant was willing to be a confidence shark, still the statute of this state, in the interest of public policy, has not excepted bets on fake races or fights from the general rule, and permits the victim of such a conspiracy, although a conspirator, to recover his money, whether the bet was on a sure thing or on an uncertain event.

It is said there was no proof that the money found upon appellee was any portion of the money deposited with Haughn by appellant. The proof is that appellee on Ms way from Cleveland to Fairbury had no money; that he borrowed small sums on the train from appellant and that he said he was “dead broke.” The money found on him was concealed in his hat. These were facts from which it might be inferred the money found on him was the money of appellant, and that Auxer was staMng Ms money against the combined cunning of the reputed pugilists and their associates. There was evidence that should be submitted to a jury on the question whether appellee had the money or any part of it that was wagered by appellant on the fake fight. The instruction to find the appellee not guilty should not have been given. For tMs error the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The Commissioners of Vermilion Special Drainage District, Appellants, v. Frank Shockey, Appellee.
    Gen. No. 5,049.

      Dbainage—what land, not subject to assessment. The Farm Drainage Act does not provide for an- assessment upon lands benefited outside the district in question unless the lands are, or may become, a part of another district or the channel is across the lands to be assessed.
    Assumpsit. Appeal from the Circuit Court of Livingston county;' the Hon. Geobge W. Patton, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed in part and reversed in part.
    Opinion filed August 10, 1908.
    Cloud & Thompson, for appellants.
    A. C. Norton and F. A. Ortman, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The commissioners of Vermilion Special Drainage District in the counties of Ford, Livingston and Iroquois, Illinois, appellants, brought suit in assumpsit against Frank Shockey, appellee. The declaration contains two special counts, and alleges that the plaintiff drainage district was organized in the County Court of Ford county, Illinois, on September 15, 1880, under the provisions of an act of the legislature of the state of Illinois, entitled “An act to provide for the organization of drainage districts and to provide for the construction, maintenance and repair of drains and ditches by special assessments on the property benefited thereby,” approved May 29, 1879, and still maintains its corporate existence. It is alleged that after the ditches and drains of appellant were constructed, they were found to have no sufficient outlet, and it was found necessary to enlarge a certain natural channel across certain sections of land, describing them, lying below and beyond the boundaries of the district, and that plaintiff thereafter in July, 1903, caused a special assessment to be spread and collected on all the lands within the district, and thereafter did clear, enlarge and straighten said natural channel below the mouth of its main ditch, which said work is completed, and said district has expended ninety thousand dollars for the purposes aforesaid; that the defendant owns two certain forty-acre tracts of land, particularly described, near said outlet ditch and not in any drainage district, which drains into said natural channel so enlarged, but of which the drainage was inadequate before the construction of said outlet ditch. It is averred said lands of defendant have been benefited by the construction of said outlet ditch, and that by reason of the statute the plaintiffs are entitled to recover fair compensation for the benefits, to the land of defendant, by reason of the construction of said outlet ditch, etc.

The defendant filed a demurrer to the declaration which was sustained, and plaintiffs abiding by their declaration, judgment was entered in favor of the defendant and for costs. The plaintiffs prayed an appeal to this court.

The demurrer is both general and special. The act declared upon was repealed by an act known as the “Farm Drainage Act” passed in 1885 (Session Laws 1885, page 78), which however provided that districts organized under the act of 1879 shall be deemed legally organized and continued under the act of 1885. Section 41 of the Farm Drainage Act of 1885 was amended in 1901. This section as amended contains a .clause, “If it be necessary to clear and enlarge any natural or artificial channel lying beyond the boundaries of the district to obtain a proper outlet, the commissioners shall use the corporate funds for this purpose, and if the necessary privileges cannot be obtained for this by agreement with the landowners or the commissioners, if the land or lands through which such outlet must be made, are within another organised district, the commissioners may acquire the same by condemnation under the act for exercising the right of eminent domain: Provided, in all such cases, if sufficient funds are not on hand, the commissioners shall make a new tax levy; provided further, that the commissioners * * * to secure a proper outlet have enlarged or improved * * * any natural or artificial channel lying beyond the boundaries of the district, as provided for in this section, upon lands owned by private individuals or which may be or hereafter become a part of another organized district, and who by such work have or may hereafter benefit the whole or a part of such lands, whether the privilege to so enlarge or improve was or may be obtained by agreement with the owners * * * or acquired by condemnation under the act for the exercise of the right of eminent domain, the commissioners * * * may collect from said land owners or other drainage district or districts, as the case may be, such an amount as may be considered a fair compensation for the benefits received. * * * ” Both counts of the declaration demurred to aver that the lands of appellee are the southwest quarter of the northwest quarter of section eighteen and the southeast quarter of the northeast quarter of section thirteen; that the lands of appellee are not in any drainage district and that the natural channel enlarged is across other sections. It is not averred that the natural channel that was enlarged touches either section on which the appellee’s lands are situated. Neither is it averred that the appellee owns any land on the sections crossed by the natural channel so enlarged. It is averred that the lands of appellee are not in any drainage district but there is no averment that they may hereafter become a part of another organized district.

The language of the section upon which it is sought to base a recovery, is not broad enough to include ap pellee’s land. There is no averment that will embrace his land. The statute does not provide for an assessment upon lands benefited outside the district unless the lands are or may become a part of another organized district or the channel is across said lands to be assessed. The court properly sustained the demurrer.

Counsel for appellee in their argument also contend that section 41 of the Farm Drainage Act is not constitutional because it gives the commissioners the right ,to assess part of the cost of improving the drainage outlet on lands outside the district that are benefited thereby without any right of representation on the part of such land owner. Nothing in the demurrer raises that question. We conclude that the question of the validity of the statute is not raised, and is not necessary to the decision of the case and therefore is not involved.

The judgment of the court in form was erroneous in that it awarded an execution for costs, and that part of the judgment must be reversed. As the appellants have neither assigned any error nor made any argument on that point that part of the judgment awarding the execution -is reversed, and the costs of this court will be adjudged against appellants, without execution. In all other respects the judgment is affirmed.

Affirmed in part and reversed in part.