author: Mr. Justice Willis Willis, J.

text:
    E. L. Clover, Executor, Appellee, v. Modern Woodmen of America, Appellant.
    Gen. No. 4,916.
    1. Evidence—when testimony of wife incompetent. A wife is incompetent as to statements and confessions made to her by her husband, and such incompetency continues after his death.
    2. Evidence—when testimony of wife competent. In an action upon an insurance policy, the wife of the deceased insured is competent to testify to a conversation with a beneficiary named in the certificate; also, such wife is competent as to facts learned during the existence of the marital relation in ways other than by conversations with or admissions by her husband—the suit being one to which neither she nor the estate of her husband is a party.
    3. Insubance—phrase “sound body, mind and health,” defined. Held, that the following instruction correctly defined the phrase “sound body, mind and health.”
    “The court instructs the jury that the words ‘sound body, mind and health, and free from disease or injury,’ as used in the application which forms part of said policy, does not import that the insured at the time of making said application is absolutely free from all infirmities, or from all tendency to disease, but that the person said to be of sound body, mind, and health and free from disease or injury, is in á reasonably good or sound state of physical and mental health, and that he is free from any disease or illness that tends seriously or permanently to weaken or impair his constitution.
    4. Amendments and jeofails—what essential to amendment of record after lapse of term. In order to amend a record after the lapse of the term, it is essential that there be some official or quasi-official note, .memorandum or memorial paper remaining in the files of the case or upon the records of the court upon which such amendment may be predicated; such an amendment cannot be based upon the recollection of the judge or other person, or be based upon ex parte affidavits or testimony.
    Assumpsit. Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Truman Plantz and Cornelius Reardon, for appellant.
    J. W. Rausch, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On April 20, 1900, Thomas F. Clover made application for admission with insurance to the Modern Woodmen of America. His application was accepted and a benefit certificate issued payable to his wife. On February 1, 1906, the beneficiary was changed from his wife to his mother, Susan B. Clover. On April 18, 1906, Clover died, and on May 17, 1906, Susan B. Clover died testate, naming appellee as her executor, who ■ instituted this suit in the Circuit Court of Grundy county, on August 21, 1906, to recover the indemnity stipulated in the certificate. The declaration counted on the benefit certificate. To this declaration, appellant interposed the general issue, and a special plea averring that certain representations and declarations made by the deceased in his application for insurance were not true, and that by reason of the untruthfulness thereof the benefit certificate became void. There was a trial, a verdict for appellee for $2,070.62; a motion for a new trial was denied; judgment was entered on the verdict; and this is an appeal by defendant to review said judgment.

In the application, in answer to questions, deceased stated that he was of sound body, mind and health, and free from disease or injury; that he had not, within seven years, been treated by or consulted a physician in regard to personal ailments; that he never had had piles, syphilis, stricture or a venereal disease. Appellant sought to prove that these answers were untrue and that the appellant had had a venereal disease which resulted in locomotor ataxia with which he had been severely affected for a long time, and that he had been treated by a physician for a long time, much less than seven years before the application was made. The evidence on that subject was very conflicting, there being positive evidence on the part of appellant that the answers in the' application of deceased were false, and other facts and circumstances tending to indicate that this testimony was untrue. Appellant took the deposition of Losta Clover, widow of deceased, who was the original beneficiary in the certificate, and that deposition was offered in evidence. Appellee objected to its introduction on the ground that the deponent was incompetent as a witness because she was the surviving widow of Thomas F. Clover, upon whose life the insurance was sought to be recovered. That objection was sustained, and appellant preserved an exception thereto.

Section 1, chapter 51, Hurd’s Statutes, 1905, makes all witnesses competent to testify unless they come within some of the exceptions. Section 5 of the same act makes husband and wife incompetent to testify for or against each other with certain exceptions, and in a proviso enacts that nothing therein contained shall make them ever competent to testify to any admissions or conversations by the other or by either of them to a third person, except in actions between them as husband and wife.

A considerable portion of the deposition excluded was made up of testimony of the witness, Losta Clover, relative to statements and confessions made to her by her husband. All that testimony was clearly incompetent and properly, excluded. She also testified to a conversation with Mrs. Clover, the mother of deceased and the substituted beneficiary in the certificate, which was also excluded. We see no reason why she was not competent to testify to that conversation. The conclusion of the witness as to what the mother meant by what she said was clearly incompetent. There were other matters in the excluded deposition, which, in our opinion, were competent.

The evidence shows without contradiction that a year or two before the certificate was applied for, Thomas F. Clover went to Eureka Springs, Arkansas, and after being there several days, was unable to arise from his bed and complained of pain and trouble in his lower limbs. There was evidence introduced by appellant to show that locomotor ataxia results from syphilis or venereal disease. To meet and overcome this evidence, appellee introduced evidence to show that deceased had been during the preceding days riding-horse back and tramping over hills, to show that the trouble with his legs was caused by the unaccustomed exercise, he being a man of sedentary habits. Mrs. Losta. Clover testified in the deposition that was excluded, that her husband, the deceased, was afflicted with locomotor ataxia prior to his death; that prior to the date of his application for membership he took irregular steps, and that the morning he left for Eureka Springs he could hardly walk to the boat, and that he had difficulty in walking on other occasions, and that this was more than three or four times.

This is not a suit between man and wife. It is not a suit in which the husband’s estate is a party, but it is a suit between the executor of the mother and the insurance company. Mrs. Losta Clover, surviving widow of deceased, was not a competent witness to state anything that she learned by conversations with her husband or to state anything he said to her or she to him. We can see no reason why, as between these parties, she was not competent to testify to the fact that her husband had locomotor ataxia, and that, on the morning- he left for Eureka Springs, he could scarcely walk to the boat, and that he took irregular steps, before the date of the application, and frequently had difficulty in walking.

The evidence in this record is so evenly balanced that we are of the opinion that the evidence so improperly excluded might have caused, had it been admitted, the jury to find for the appellant.

An instruction to the jury, asked by appellee and given was as follows:

“The court instructs the jury that the words ‘sound body, mind, and health, and free from disease or injury, ’ as used in the application which forms part of said policy, does not import that the insured at the time of making said application is absolutely free from all infirmities, or from all tendency to disease, but that the person said to be of s,ound body, mind, and health and free from disease or injury, is in a reasonably good or sound state of physical and mental health, and that he is free from any disease or illness that tends seriously or permanently to weaken or impair his constitution. ’ ’

Appellant urges that the definition of “sound body, mind and health,” contained in this instruction is incorrect. In Court of Honor v. Dinger, 221 Ill. 181, the court, in passing on an instruction in the following words, “The court instructs the jury that thq. words ‘good health,’ when applied to a human being, mean that the person said to be in good health is in a reasonably good state of health, and that he is free from any disease or illness that tends seriously or permanently to weaken or impair the constitution, ’ ’ said, ‘ ‘ This instruction gives a reasonable definition to the term good health, and we think a correct one.” In Brown v. Metropolitan Life Insurance Company, 65 Mich. 306, the court defining “sound health” as appearing in an application for insurance, said: “It is a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system seriously, not mere temporary indisposition which does not tend to weaken or undermine the constitution of the assured. ’ ’ May on Insurance, 3rd ed., 387; Manhattan Life Insurance Company v. Gardner, 82 Fed. Rep. 989.

The expression “sound health” and “good health” being of the same import, we think that the instruction complained of gives a correct definition of the words “sound body, mind and health.’’

For the error indicated the judgment is reversed and the cause remanded.

'Reversed and remanded.

Willis, J.

A rehearing- was granted to permit appellee to secure an amendment to the bill of exceptions, which, it was alleged, would show that no error was committed by the court in sustaining the objection to the deposition of Losta Clover. Such an amendment was made in the court below and appellant took a bill of exceptions preserving the evidence upon which the amendment was based. That record was filed here by leave of court and a motion was made by appellant to strike from the record the amendment to the bill of exceptions. That motion was taken with the case. The bill of exceptions taken upon that motion shows that the order giving leave to amend was based upon affidavits of the recollections of witnesses as to what occurred when the deposition was offered in evidence at the trial. This was after the trial term.

A record may be amended after the term at which it is made has elapsed by an order of the court entered nunc pro tunc, when by reason of a clerical misprision it does not speak the truth. The amendment must however, be based upon some official or g«asi-official note or memorandum or memorial paper remaining in the files of the cause, or upon the records of the court, and a fact proposed to be incorporated into a record to supply an omission cannot rest in the recollection of the judge or other person, or be based upon ex parte affidavits or testimony after the event has transpired. Dougherty v. The People, 118 Ill. 160 ; Tynan v. Weinhard, 153 id. 598; Village of No. Chillicothe v. Burr, 178 id. 218; Chicago, Burlington & Quincy Railroad Co. v. Wingler, 165 id. 634; Dreyer v. People, 188 id. 40; Hubbard v. The People, 197 id. 15; Wesley Hospital v. Strong, 233 id. 153. In Tynan v. Weinhard, supra, it was said: “It must be shown by the production of some note or memorandum from the records or quasi records of the court, or by the judge’s minutes, or some entry in some book required to be kept by law, or in the papers or files in the case. It cannot be determined from the memory of witnesses, or by the recollection of the judge himself.” “Tiré memorial paper or minute by which a record may be amended must be made and preserved as a part of the record, pursuant to law. A private memorandum of a witness is not sufficient.” Dougherty v. People, supra.

As this amendment made at a later term, was not based on any official or quasi-official record or memorandum or memorial paper, remaining in the files of the case, or upon records of the court, but solely upon the ex parte affidavits based upon the recollection of the witnesses, the motion to strike the amendment from the files must be and is granted. The case then stands as before the rehearing. With this addition, the former opinion is adopted and ordered refiled.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Dora Bennett, Appellant, v. Norman Millard et al., Appellees.
    Gen. No. 4,960.
    1. Practice-when propositions of law need not he presented. In a certiorari proceeding, which is tried before the court and with respect to which a jury trial cannot he had, propositions of law need not he presented in order to preserve for review questions of law.
    2. Conveyances-presumption as to date of delivery of deed. In the absence of evidence to the contrary, the presumption is that a deed was delivered on the day of its date, and this presumption prevails notwithstanding the instrument was acknowledged at a later date; nor does the fact that final acceptance of such deed by-commissioners of highways took place at a time later than such date rehut the presumption.
    3. Commissioners oe highways-when do not lose jurisdiction
      of petition. Where a settlement is in fact made within ten days of the date of the order laying out a new road, and condemnation of such lands so to be taken is thereby obviated, the commissioners are not ousted of jurisdiction of the subject-matter because their records fail to show a record of such settlement made within ten days of the date of the order to lay out the road.

      Certiorari. Appeal from the Circuit Court of Carroll county; the Hon. Riohabd S. Fabbamd, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Ralph E. Eaton, for appellant.
    Franklin J. Stransky, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

In February, 1907, certain residents and landowners of the town of York, Carroll county, presented a petition to the commissioners of highways of said town, praying that a portion of a certain public highway be vacated, and that a new road be laid out across certain premises therein described. The commissioners of highways fixed upon March 11, 1907, as the time when they would meet to hear reasons for and against granting the prayer of the petition. Notices were duly posted, showing the time and place of such meeting, as required by section 33 chapter 121 Hurd’s B. S. 1905. The commissioners of highways met "pursuant to such notice, on the day and at the place named therein, and decided to vacate the old highway, and lay out the new road. On April 3, 1907, the commissioners of highways ordered the old highway vacated, and the new road laid out, as prayed for in the petition. On July 19, 1907, appellant, Dora Bennett, filed a petition in the office of the circuit clerk of said county. The petition alleged that the order of April 3, 1907, purporting to lay out the new road and to vacate a portion of the old Mghway, was void, because it was made after the commissioners of highways had lost jurisdiction over the subject-matter, alleging as ground therefor, that the commissioners of highways neither settled with the owners of the land to be taken for the new road, nor filed a certificate with a justice of the peace to have the damages therefor assessed within ten days after they determined to grant the prayer of the petition as required by section 41, chapter 121, Hurd’s B. S. 1905. The petition made the clerk and the highway commissioners of the town of York, defendants, and prayed that a common law writ of certiorari issue, commanding them to make return thereto, certifying the record of their proceedings into the Circuit Court of said county for its inspection and further order. The writ issued, and was served on appellees. They appeared and moved the court to quash the writ and dismiss the petition. This motion was overruled. Appellees then filed certified copies of their proceedings as their return to the writ. The court inspected the record appearing in the return, and found that the commissioners had jurisdiction to make, and did lawfully make, said final order of April 3, 1907, quashed the writ, dismissed the petition, and adjudged the costs against appellant, who prosecutes this appeal.

Appellant offered certain propositions of law, some of which were held, and others refused. It is argued that such refusal was error. A certiorari proceeding is tried upon the record only, and presents only a question of law for the court. Neither party to this proceeding was entitled to a trial by jury, and therefore the practice of presenting propositions to be heard as the law of the case as provided by section 41 of the Practice Act had no application to the case. That section only applies where parties are entitled to a jury trial, and a jury has been waived. Martin v. Martin, 170 Ill. 18; Coffey v. Coffey, 179 Ill. 283; Chicago Union Traction Co. v. City of Chicago, 202 Ill. 576; Cody v. Town of Cicero, 203 Ill. 322; The People v. C., B. & Q. R. R. Co., 231 Ill. 112; Sampson v. Commissioners of Highways, Chestnut Township, 115 Ill. App. 443. It is therefore unnecessary to consider whether the rulings of the trial court in refusing the propositions of law, indicate that he held incorrect views of the principles of law involved. More v. More, 211 Ill. 268; The People v. C., B. & Q. R. R. Co., supra.

The record appearing in appellee’s return, contained a written instrument under seal, dated March 18, 1907, signed by Frank Melendy, Lulu Melendy, his wife, and Joseph Melendy, a single man, the only persons who owned land to be taken for the new road. This instrument conveyed to the commissioners of highways of the town of York, and their successors in office, for the uses and purposes of a public highway, all the land over which the new road was to pass, and the same instrument released all claim for damages sustained by the Melendys by reason of the laying out and opening of said new road. The instrument expressed a valuable consideration therefor, and the receipt of the same, and was acknowledged before the town clerk, who was also a notary public, March 19, 1907. The date of the written instrument or release was within ten days of March 11, 1907. There is no evidence in the record, beyond what is furnished by the instrument itself, showing the date of its delivery to th'e commissioners of highways, and under these circumstances, the legal presumption must prevail, that it was delivered on the day of its date. Hardin v. Crate, 78 Ill. 533; Deininger v. McConnel, 41 id. 227; Jayne v. Gregg, 42 id. 413; Darst v. Bates, 51 id. 439; Walker v. Doane, 131 Ill. 27. Adopting that presumption as in the absence of countervailing evidence we must, it follows, that' the instrument of release had already been executed and delivered by the Melendys to the commissioners or to some one of them, on the 18th day of March, which was within ten days of March 11, 1907. The fact that the certificate of acknowledgment bears a later date, is not sufficient to rebut such presumption. L. E. & W. R. Co. v. Whitman, 155 Ill. 514; Schaeppi v. Glade, 95 Ill. App. 500; Deininger v. McConnel, supra.

Counsel for appellant contends that the record shows that the release was delivered on March 26, 1907, more than ten days after March 11, 1907. The order of the highway commissioners of March 26 does not contain any statement that .would warrant such assumption. The record of the highway commissioners does show that on March 26, 1907, they met as a board and formally accepted the release which had been executed by the Melendys. This fact is not in any way inconsistent with the presumption of law that the deed was delivered on March 18, 1907. The delivery of the deed to the town clerk on its date, or to any of the highway commissioners individually would undoubtedly end all control of the Melendys over the instrument; yet the same could not be accepted by the commissioners individually, but it would be necessary for them to meet as* a board and act officially. The language relied upon by appellant to establish the delivery of the release on March 26, is “Said damages having been, on the 26th day of March, 1907, definitely fixed and settled at the sum of one dollar, by written agreement, signed by Frank and Joseph Melendy, the owners of the land over which said new road is to pass, and the undersigned commissioners.” This does not rehut, or tend to rebut, the presumption that the deed was delivered by the Melendys on the day of its date.

Counsel for appellant cites as authority in support of his contention, that the commissioners of highways lost jurisdiction over the subject-matter of the petition, Imhoff v. Commissioners of Highways, 89 Ill. App. 66. The petition in that case prayed that two things should he done. The record of the commissioners showed that the notice had been given only of one of the subjects of the petition, and that notwithstanding such lack of notice which related to the vacation of the road, the commissioners entered an order, vacating such road, and the court held that the commissioners had not acquired jurisdiction. In the case at bar, counsel for appellant admits the commissioners had acquired jurisdiction. The application of the Imhoff case to the facts in this case is therefore not apparent to us. Trainer v. Lawrence, 36 Ill. App. 90, and People v. Ruby, 59 Ill. App. 653, cited by appellant, are not applicable to the facts involved in the case at bar. In neither was there a release of the right of way procured from the landowners. The parties complaining were the parties whose land was to be taken. Both relate entirely to the proceedings before the justice, and the question involved was, whether the justice had acquired jurisdiction,, and not whether the commissioners had lost jurisdiction. These cases do not hold, as appellant contends, that the commissioners of highways, by failing to file certificates, lost jurisdiction of the subject-matter of the petition, but only lost jurisdiction to condemn the land for such road.

In this case the commissioners had a deed of the land, and a release of damages for laying out the road, and condemnation proceedings were not necessary. After the road was ordered opened, the Melendys were paid the amount of damages agreed upon for the location and opening of the highway. This estopped them from alleging that the commissioners lost jurisdiction. Town v. Town of Blackberry, 29 Ill. 137; Kile v. Town of Yellowhead, 80 Ill. 208. If the owners of the land to be taken are bound by the deed and release and es-topped, appellant, having no interest in the land taken, cannot complain. In certiorari one landowner cannot object to an irregularity which only concerns the land of another landowner. Deslauries v. Soucie, 222 Ill. 522. Moreover appellant’s petition attacking the order of April 3, was not filed until more than three months thereafter, and it did not allege that appellant was the owner of, or was interested in, any lands whatever at the time the order of April 3, 1907, was made. It did state, however, that she was the owner of lands, over which the road ordered vacated passed, at the time she filed her petition. Under no construction nor by the aid of any presumption, can it be inferred or known that she owned or was interested in the land, over which this road passed, at the time the order was made. Ownership of land acquired after the laying and vacation of a road, is not sufficient to entitle a person to a writ of certiorari to review the proceedings.

Our conclusion is, that where a settlement is in fact made within ten days of the date of the order laying-out a new road, and condemnation of such land so to be taken is thereby obviated, that the commissioners are not ousted of jurisdiction of the subject-matter because their records fail to show a record of such settlement made within ten days of the date of the order to lay out the road.

The judgment of the court is therefore affirmed.

Affirmed.


text:
    H. S. Whitmore, Appellant, v. William Waters’ Estate, Appellee.
    Gen. No. 4,967.

      Instructions—when peremptory instruction should he given. A peremptory instruction for the defendant is proper where there is no proof hy which the jury can 'fix any amount of damages and the evidence is in such shape that a verdict, if in favor of the plaintiff, would have amounted to a mere guess.
    Contested claim in court of prohate. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Hodson & Campbell and Sheean & Sheean, for appellant.
    Jones & Kerz, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

H. S. Whitmore, appellant, filed a claim against the estate of William Waters in the County Court of Jo Daviess county, to recover a share of the proceeds of two sales of certain mining leases and privileges made by William Waters, who died July 30, 1906. The widow of Waters was appointed executrix of his estate January 22, 1907. So far as appears, appellant had nothing to do with Waters’ mining operations. Whit-more filed a claim for $4,160 against Waters’ estate, showing a credit for $1,000 paid by Waters. On the hearing in the County Court, judgment was entered against the estate for $2,750. From this judgment, an appeal was taken to the Circuit Court of said county where a trial was had before a jury. At the close of claimant’s evidence, appellee moved to dismiss the case for want of jurisdiction in the Circuit and County Courts, on the ground that the claim arose out of an unsettled partnership account. The court heard the argument of counsel and authorities cited, and after holding the motion under advisement for a day or two, held that the County and Circuit Courts had jurisdiction, and denied the motion. Appellant then made a motion for leave to withdraw a juror. The next day, appellant withdrew that motion. Appellee then moved the court to instruct the jury to find the issues for the defendant. Such an instruction was given, and a verdict for appellee returned. A motion for a new trial was denied, there was a judgment against appellant for costs, and this appeal is prosecuted by plaintiff below.

The evidence shows that Waters, the deceased, a lead miner in Q-alena, for a number of years had been mining certain lead veins on the property of a number of persons, under leases from the owners, and under certain streets under ordinances of the city. In 1902, he desired to secure a lease giving him authority to extend the same veins through the lands of Mr. and Mrs. Beed and a Mrs. Klett. His purpose in securing the Beed and Klett lease seems to have been to aid him in selling his entire mining leases. He applied to Beed, who refused to lease to him. Waters then got appellant to go with him to Beed, and they together succeeded in procuring from Beed and his wife a lease to Waters and appellant, which Mrs. Klett, who owned land between the Beed farm and the west end of Waters’ other leased lands, signed. On December 1, 1902, appellant assigned said lease to Waters. On December 12, 1902, Waters made a contract for the sale of all his mining property to one Chappell for $30,000 of which $7,500 was paid in cash. The contract provided for a forfeiture in case the deferred payments were not made. Waters then drew a check in favor of appellant for $500, and delivered it to appellant’s wife in appellant’s absence, saying there was more to come. The purchaser failed to complete the contract, and forfeited the $7,500. On May 11, 1903, the said leases, and others obtained by the purchase of December 12, 1902, were assigned to Waters,* who, on June 16, 1906, made a contract for the sale of said leases to the Lake Superior Development Company, of Ironwood, Michigan, for $15,000 of which $5,000 was paid in cash. Waters delivered a check to appellant for $500 after the second sale. This sale was not completed, and the $5,000 was forfeited. About four years after the first sale, appellant filed this claim, for what he asserts is his share of the cash payments of $7,500 and $5,000.

It is assumed that the trial court held that the relation between appellant and Waters was that of partners, and that appellant could not recover in an action at law against the estate, but that he should have filed a bill in equity, and it is argued that the court should not have directed the jury to find for the estate. If that was the view of the court he should not have so directed the jury, but should have discharged them, and proceeded to hear the case on equitable principles. As four days elapsed after the motion was made to dismiss the suit for want of jurisdiction before the court finally directed a verdict, appellant had ample time to ask that the jury be discharged if he so desired. He did ask leave to withdraw a juror and then withdrew that motion. He could not expect the court to determine for him what course he should pursue. As appellant persisted in having a jury, the directed verdict was right, unless the evidence tended to make a case for appellant. Regardless of whether the relations between the parties constituted a partnership as claimed by appellee, or not, as claimed by appellant, we are of the opinion that there was not sufficient evidence before the court to warrant the jury in finding a verdict for appellant. Appellant did have a lease, in company with Waters, of the Reed and Klett lands. He transferred his leasehold interest therein to Waters before Waters made the first sale. His motive in passing his interest over to Waters does not appear from the proof. For aught that appears in the record, he may have been paid the full value therefor, or he may have understood that his interest was to be but slight. When Waters made the first sale, and delivered to appellant’s wife a check for $500 he said, there was “more to come.” That may have meant, as appellant contends, that more of the $7,500 paid down was to be paid him, but it is equally consistent to infer from the language used, that there was more to come from the deferred payment of $22,500, if the purchaser decided to complete the transaction. If more of the cash payment of $7,500 was due appellant, it is strange that he made no effort to obtain it during the four years thereafter, that Waters lived. When Waters made the second sale he again delivered to appellant a check for $500.

There is no proof that appellant ever had any money in Waters’ mining enterprise except that he furnished Waters a check for $80 to help pay for a test hole sunk on the Eeed and Klett land, which failed to develop mineral, and was abandoned. There is proof by several witnesses that Waters said appellant had an interest in the leases of the Eeed and Klett lands, but absolutely nothing to show what that interest was. The proof shows that appellant worked a little on one of the test holes sunk on the Eeed and Klett lands. However, none of the shafts or test holes sunk on the Eeed and Klett lands showed any mineral.

There could be no verdict for appellant for any amount because there was no evidence showing the extent of his interest in the property, and for the further reason, that if appellant was in fact, owner, as he claimed, of a one-half interest in the Eeed and Klett lands, the cash payments made on the two sales were on the whole of Waters’ mining interest, including various veins under the lands of numerous other owners and under the streets of the city, and the evidence furnishes no basis or test by which the jury could decide what portion of the sum paid ought to be allowed for the portion covered by the Eeed and Klett leases. Moreover, the proof does not show that there were any workable veins or ore of value under the Eeed and Klett lands. Whether the veins Waters was working would run into the Eeed and Klett lands and be of value, was uncertain and purely speculative. There was no intelligent measure of recovery placed before the jury, or in other words, there was no proof by which the jury could fix any amount of damages, and their verdict, if in favor of appellant, would have amounted to a guess.

The trial court committed no error in directing a verdict for appellee, and the judgment of the Circuit Court is affirmed.

Affirmed.


author: Mb. Justice Willis

text:
    Sam Moyses, Appellee, v. Margaret Schendorf et al., Appellants.
    Gen. No. 4,969.
    1. Judgment by confession—when leave to plead should he granted. A motion for leave to plead should he granted if the showing in support of the motion makes a prima facie defense to the note upon which the judgment is entered.
    2. Sales—when vendor excused from tender. When the time for performance has come, the vendor must possess the thing to he sold and must tender it, if it is susceptible of manual delivery, or by conveyance, if it is not, before he can put the other party in default; hut if the vendee or grantee declares his intention not to perform, or refuses to perform, then a tender of delivery or a conveyance is not necessary, as the law does not require a needless formality.
    3. Sales—what false representations of fact. To state that a business sought to be sold has been conducted at a profit when in fact it had been conducted at a loss, is to falsely represent a matter of fact, which authorizes a rescission. Held, however, in this case, that the affidavit by which it was sought to show the falsity of such representations in order that a judgment by confession might be opened up, was not sufficient in that it was predicated upon hearsay.
    4. Penalties and forfeitures—what deemed liquidated damages. A provision for the payment of a particular sum in the event of the breach of a contract is presumed to be a provision for the payment of liquidated damages where the damages which would result from a breach would be difficult to estimate and could not be proved with any degree of certainty.
    Judgment by confession. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Clark & Clark, for appellants; Clyde L. Day, of counsel. >
    C. B. Haffenberg and Louis Grollman, for appellee; Herman Frank, of counsel.
   Mb. Justice Willis

delivered the opinion of the court.

In vacation, after the October term of the Lake County Circuit Court, appellants, Margaret Schendorf and Henry C. Schendorf, confessed judgment on a promissory note in favor of appellee, Sam Moyses, for $1,515. At the next term, said appellants moved the court to stay execution, vacate the judgment, and for leave to plead. This motion was heard without objection or exception, upon an affidavit of Henry C. Schendorf with, a contract attached thereto, as an exhibit, and upon counter-affidavits for appellee, and an affidavit in reply by appellant Henry C. Schendorf. Notwithstanding the absence of objection to that method of hearing the motion, we are of the opinion that the court should have opened the judgment independent of the showing in the counter-affidavits, if the showing in support of the motion made a prima facie defense to the note. It appears that appellee and appellant, Henry C. Schendorf, hereinafter called Schendorf, entered into a written contract dated September 1,1906, for the purchase of 100 shares of the capital stock of the E. Goldstein Company, a corporation doing business in Chicago, Illinois, for $8,000, the same to be paid not later than November 1, 1906. To secure the consummation of the contract, Schendorf and Margaret Schendorf, his wife, appellants, executed and delivered to appellee a promissory note for $1,500 payable November 1, 1906. The contract provided that if Schendorf paid for the stock according to the terms of the contract, the note was to be returned to him; if he did not, the note should become due and payable immediately. This was the note upon which the judgment was .entered-.

The business of the E. Goldstein Company was a saloon and restaurant operated together. By the terms of the contract, Schendorf became manager of the restaurant portion of the business at a salary of $25 per week, which position he was to hold until the first of November, 1906. He, however, continued as manager until November 15,1906, when he surrendered the keys to appellee’s attorney.

It is contended that appellants were not liable on the note because appellee did not tender Schendorf the 100 shares of stock contracted for, and that he did not show that he owned the stock. It is no doubt true that when the time for performance has come, the vendor must possess the thing to be sold, and must tender it, if it is susceptible of manual delivery, or by conveyance if it is not, before he can put the other party in default. Augsberg v. Meredith, 101 Ill. App. 629, and cases there cited. There is an exception to this rule however. If the vendee or grantee declares his intention not to perform, or refuses to perform, then a tender of delivery or a conveyance is not necessary, as the law does not require a needless formality. Osgood v. Skinner, 211 Ill. 229. From the proof it is clear that the capital stock of the E. Goldstein Company consisted of 200 shares, that Goldstein owned 100 shares and appellee 100 shares on November 1,1906, and it is undisputed that Schendorf told appellee or his attorney that he would not take the stock. Since appellee owned the stock and Schendorf declared that he would not take it, it was essential that appellee tender it to him in order that a right of action should accrue on the note.

Appellants’ main contention is that the contract and note given to secure their compliance therewith, were procured by false and fraudulent representations. It appears from the affidavit first filed by Schendorf, that on or about August 25,1906, as an inducement for him to buy the stock, appellee told him that this saloon and restaurant business was making money, and that this statement was absolutely false, and known to be false by appellee; and that at the time said negotiations were being made said saloon and restaurant business was being run by the Goldstein Company at a loss of $35 to $50 per day, and that said loss continued at the same rate up to the time Schendorf gave up said restaurant, November 15, 1906.

Schendorf, in an affidavit filed in reply, stated that appellee told him that the restaurant was not paying, but that the saloon was paying first rate, and was making so much money that both operated together were profitable, and on a paying’ basis. It is contended by appellee that these statements, if made, were but puffing one’s wares, and that the seller had a right to do that. If the statement had been that it would pay in the future, this position would be correct. If, in fact, the saloon and restaurant business was being conducted at a loss of from $35 to $50 per day then the statement made by appellee to Schendorf that it was being conducted at a profit was false, as a matter of fact, and not as a matter of opinion, and that fact was within the knowledge of appellee, and not of Schendorf. We, however, conclude that the proofs appearing-in the affirmative were not sufficient for this reason to warrant the court in opening the judgment and giving leave to set this matter up as a defense. Obviously Schendorf did not know, from his own knowledge, that the business was run at a loss of from $35 to $50 per day during the period covered by the negotiations, and if he had learned that fact from anyone, it was but hearsay on his part. If someone knew the fact, and told him of it, there should have been an affidavit showing that fact by some person knowing it, or knowing-facts sufficient to show it. In order to know whether the business was being- conducted at a loss, it would be necessary not merely to consider the receipts for a few days, but to know what the .expenditures had been for stock, labor, rent, etc., over a considerable period of time. Schendorf’s was the only affidavit filed showing that the business was being conducted at a loss during the period covered by these negotiations. It is true that Schendorf’s affidavit does not show that he made these statements -upon information and belief, but shows that the statements were made by him as if he knew them to be true, but it is obvious from a consideration of Ms entire affidavit, that he couM not know the fact and that it was but hearsay. We are of the opinion that an allegation of this Mnd, on hearsay only, unsupported by any direct proof of the truth of the statement, or by anything to show that the statement can be supported by such proof, is not a sufficient allegation. It is true that Schendorf stated in his affidavit that while he was manager of the restaurant, from about September 1 to November 15, 1906, the entire business was losing from $35 to $50 a day. If tMs were true, its being conducted at a loss then would not prove that it had been previously conducted at a loss and the loss, if any, might have been due to the inexperienced management of Schendorf. Moreover, Schendorf includes the saloon as well as the restaurant business, and, except for ten days, he apparently had nothing to do with that, and in his affidavit in reply he states that he really did not know that they were losing business before the first of November, so that even his allegation that they were losing money from the time he took possession, at the rate of from $35 to $50 per day is hearsay, without being supported by the affidavit of anyone who knew. Taken altogether, Schendorf’s affidavit means no more than that he had reason to believe that from undisclosed sources he will be able to show that the business was conducted at a loss. We think this insufficient to authorize the court to open the judgment.

Appellant further contends that the contract was rescinded by mutual agreement, and the liability on the note thereby released. Appellee’s attorney went to Schendorf several times, and insisted on his paying for the stock if he was going to take it, and he begged off, asking for more time in wMch to sell certain stock on the farm to raise the money. Schendorf in his reply affidavit, says that though he probably did say those things, he was not giving his true motive, but that Ms real desire was to get more time to find out whether it was a paying institution. About November 15,1906, appellee’s attorney said to Schendorf that he must either get out of the restaurant and give up the keys or take the stock and pay for it, and he said he would get out. He did surrender the keys and get out immediately. This, in our opinion, was only a surrender of his position as manager of the restaurant at $25 per week, and we do not think it can be considered to mean that he was released from the liquidated damages embraced in the consideration expressed in the note, by giving up the management of the restaurant and the keys.

Appellants insist that the consideration expressed in the note was a penalty, and that forfeitures are odious to the courts, except when definitely contracted for, and when nothing is done by the party for whose benefit they are made to mislead the other to his injury, and that courts of justice do not regard forfeitures with favor, and they are never enforced unless the evidence is clear that such was the intention. We do not incline to the opinion that the consideration expressed in the note was in the nature of a penalty, but under the authority of Gobble v. Linder, 76 Ill. 157, conclude that it was in the nature of liquidated damages, for the reason that appellee had agreed to sell to Schendorf for $8,000, 100 shares of stock in the E. Goldstein Company, and in case of a breach of the agreement it would be difficult to estimate and prove with any degree of certainty, the amount of damage sustained. For that reason it may be presumed that the damages had been the subject of calculation and adjustment, and that the sum named was the amount definitely agreed upon. As said in the Gobble case, it does not militate against the principle that the damages actually suffered may have been small in comparison with the sum mentioned in the agreement.

Nothing in the agreement in evidence in this case manifests any intention that the sum named should be treated as a penalty. On the contrary, as was said in Peine v. Weber, 47 Ill. 41, “Unless there is good cause for it, a court cannot declare a stipulated sum, which the parties themselves have said shall be the amount of damages, to be a penalty merely.” The facts in this case afford no sufficient reason for so declaring. We are of the opinion that the contract was fairly made and understandingly entered into. Considering the language employed, the nature of the contract, what the parties had contracted to do, and all the attending circumstances, we are led to the conclusion that it was the intention that the sum named should be the measure of damages in ease of the failure of Schendorf to perform Ms part of the contract, and therefore was liquidated damages.

We conclude, therefore, that appellants’ showing in support of the motion to open the judgment with leave to plead, was not sufficient, and that there was no error in the denial of such motion.

The judgment is therefore affirmed.

Affirmed.


text:
      City of Marseilles, Appellant, v. John Heister, Appellee.

      Gen. No. 4,972.

    1. Evidence-when exclusion of evidence in rebuttal not ground for reversal. It is within the discretion of the trial court to grant or refuse leave to introduce evidence in rebuttal, which is not strictly in rebuttal; a reversal will not be predicated upon such action of the trial court in the absence of an abuse of discretionary power.
    2. Instructions-must be confined to the issues. An instruction is properly refused which does not relate to the issues in the cause.
    3. Appeals and errors-when assignment of error deemed waived. An assignment of error not argued is deemed waived.
    Action commenced before justice of the peace. Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stouqh, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Peter M. McArthur, for appellant.
    No appearance for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

John Heister, appellee, was arrested in the city of Marseilles in the night-time upon the arrival of an interurban car from Ottawa. He was held until the following morning, when he gave bail, and was after-wards tried before a police magistrate and jury. There was no complaint in writing, but the transcript of the police magistrate’s docket recited that he was tried on the charge of being drunk and disorderly upon the streets of Marseilles. The jury found appellee not guilty. The city appealed the case to the Circuit Court of LaSalle county, where, as the evidence discloses, appellee was tried on the charge of being drunk and disorderly on an interurban car within the limits of the city of Marseilles. The jury there found appellee not guilty. A motion for a new trial was denied. Judgment was entered against the city for costs, and the city prosecutes this further appeal.

The city of Ottawa and the city of Marseilles are connected by an interurban railway operated by the Illinois Valley Bailway Company. On the night of September 11, 1907, appellee boarded a car of said company at Ottawa, which arrived at Marseilles about 11 p. m. Appellant’s proof tended to show that appellee was drunk and disorderly and indulged in the use of obscene and profane language after the car, which was running east, had passed the west limits of the city of Marseilles. Appellee’s proof tended to show that, while he was somewhat under the influence of liquor, his conduct was not disorderly or his language improper after the car came within the limits of Marseilles.

The evidence is undisputed that shortly after appellee got off the car at the station in Marseilles, one Smith, appellant’s chief of police, approached and addressed some remark to appellee and then knocked him down with a club. Appellee testified that hé knew nothing thereafter until the next morning. Nine witnesses testified that Smith struck appellee several times after he knocked him down. They all said this more than once, and some said it as many as five or six times, and one witness said Smith kicked appellee after knocking him down. After appellee had been clubbed by Smith into apparent unconsciousness, Smith and one Coffin, appellant’s assistant chief of police, dragged him face downward for some distance until bystanders interfered. Then, with other help, they carried him to the station, where it became necessary to call a surgeon to dress his wounds. The evidence is also undisputed that his clothes were badly torn and a trail of blood marked the course over which he was dragged.

On rebuttal, the chief of police was permitted, over objection, to relate his version of what transpired after appellee got off the car. The judge stated that he did not think it was rebuttal, but that he might answer. The assistant chief was then asked to relate his version of what occurred. The objection was renewed and sustained on the ground that it was not rebuttal. Of this ruling appellant complains. If appellant sought to convict appellee of being drunk and disorderly after he left the car it should have produced the evidence thereof before resting its case. If the case sought to be made by appellant in chief was that of disorderly conduct on the car, then it was not competent to prove in rebuttal, disorderly conduct after he left the car. It was not error to exclude the offered testimony of the assistant chief of police.

It is claimed in appellant’s brief that the court refused to allow appellant in its rebuttal evidence to prove that appellee resisted the chief of police and struck him, and. that the chief of police used no more violence than was necessary to reduce appellee to subjection. Neither the abstract nor record show that the court refused to allow such proof. Moreover the proof offered for that purpose was not rebuttal of appellee’s defense but a part of appellant’s original case, and if overlooked by appellant in making its case in chief, the court was not called upon to suspend or dispense with the rules regulating the introduction of evidence to excuse counsel’s oversight. The record presents no error relative to the admission or exclusion of evidence.

The evidence is conflicting on the charge attempted to be proved in chief, that appellee was guilty of disorderly conduct on the car within the limits of the city of Marseilles, therefore we are not inclined to disturb the judgment on the facts.

Appellant sought to impeach the testimony of one of appellee’s witnesses by showing that he had made statements out of court inconsistent with his testimony on the trial, and now argues that the court erroneously limited its examination of the witness. In this, counsel is not supported by the record, as it is apparent he was not restricted in his attempt to impeach the witness.

Appellant offered five instructions. The court refused three and modified and gave two. The first refused instruction related to the right of the chief of police to arrest appellee. That question was not involved. The second refused instruction did not relate to the charge upon which appellant’s evidence in chief bore. The third refused instruction would have permitted the jury to convict appellee for any offense other than that for which appellant introduced proof in chief. A modification of the third and fourth instruction is complained of, but not argued, and therefore we are excused from considering the action of the court in that particular. But an examination of the instructions modified discloses such a clear, full and accurate presentation of the law applicable to the facts appearing in the record that we commend the action of the trial court in that particular.

Appellant’s brief states that “the city of Marseilles has appealed this case for the purpose of having the question decided once for all if its ordinances can be enforced in the courts, and peace and good order maintained within the city” and further states that, “It is not with any hope of punishing the defendant in this case, but that an example may be set to others.” Again appellant says not only does the peace and good order of the city depend upon the decision of this case, but also the protection of persons travelling between cities. If examples are necessary to preserve the peace and enforce the ordinances of appellant, we are of the opinion that its chief of police, supposedly a peace officer, should set the first example. He should realize that, in making an arrest, his official baton or club should only be used when moral suasion and moderate force is inadequate to reduce to subjection a citizen whose apprehension is demanded under the law.

The evidence is conclusive that appellee was so outrageously and unmercifully treated that any jury would be likely to sympathize with and acquit him even though evidence showed he was technically guilty of violation of the ordinance.

Finding no error of law in this record the judgment is affirmed.

Affirmed.


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    Napoleon Langlois, Appellant, v. Amanda Langlois, Appellee.
    Gen. No. 4,975.

      Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly so.

      Replevin. Appeal .from the Circuit Court of Kankakee county; the Hon. Dorra.ro® Dibell, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Savary & Ruel, for appellant; W. G. Brooks, of counsel.
    Amos H. Robillard, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was a suit in replevin brought by appellant against appellee, before a justice of the peace of Kankakee County, to recover possession of certain household furniture. After judgment there, the case was appealed to the Circuit Court of said county where appellee obtained a verdict finding the right of property in her, and awarding her $75 damages, for the use of the furniture while held by appellant after service of the writ. A motion for a new trial was made on the grounds that the verdict was against the law and evidence, and that the damages were excessive. Appellee made a remittitur of $18. A motion for a new trial was denied. A writ of retorno habendo was ordered, judgment was entered for $57 and costs, and this appeal was taken by plaintiff below.

On the trial it was stipulated that a demand was made for the goods before the suit was brought, and the evidence showed that in April, 1904, appellant was the owner of certain household goods stored at St. Anne, Blinois; and that he, his son, Willie, and daughter, were boarding at Dalton, Illinois, where he and his son were employed. In April, 1904, Willie and appellee were married. Thereafter appellant, Willie and appellee arranged to keep house as one family, appellee to be housekeper. In pursuance of such arrangement, appellant rented a house and placed therein the furniture in controversy. Later, appellant married and set up housekeeping independent of Willie, and appellant rented a house and took from the house occupied by appellee and Willie, such of the furniture as they did not need. On January 4,1907, Willie abandoned appellee and their child, and appellee continued to keep house at Pembroke, where they had previously moved. When Willie left appellee, he told her to take the furniture or he would sell it to pay her board. On January 15, 1907, appellee, with help, moved one load of the furniture to her father’s house, where she was then living, and moved the rest the day following. On February 1,1907, appellant replevied the furniture.

Appellant’s contention is, that he left the furniture with his son for him and appellee to use. Appellee claims that appellant gave the furniture to Willie and herself.

Upon the question of whether the transaction was a loan or a gift, there were but two witnesses. Appellant testified that when he separated from his son and appellee, he took just what furniture he needed and left what he thought would be necessary for them. Appellee testified that appellant took all the furniture he wanted, and said, “You keep the rest, I give it to you,” and that when they were moving the first load appellant came to the house, remained about two minutes, but said nothing. In this, she was corroborated by one Bertrand, who was helping her move the furniture, and appellant admitted he was present when they were loading the first load and made no protest.

This conflict in the evidence involved the credibility of the testimony of appellee and appellant, which was for the jury to determine and to reconcile. This they did by their verdict, which should not in the absence of material error of law be disturbed.

■ In support of appellant’s contention that the damages are excessive, counsel argues that the court erred in admitting the evidence of appellee and Bertrand over his objection. There was no error in the admission of appellee’s evidence and the record discloses that Bertrand’s evidence was not objected to, and therefore is not subject to appellant’s criticism here. Bertrand testified that appellee’s damages for deprivation of the use of the furniture was $5 per month, and the evidence shows she was deprived of its use eleven months and a half. Evidently the trial court in entering judgment after remittitur, calculated the damages on Bertrand’s unobject'ed evidence, and the judgment is not, in our opinion, excessive.

The instructions informed the jury fully and accurately as to the law applicable to the evidence, and are not complained of. There is no error in this record and the verdict of the jury bears the approval of the trial judge who saw and heard the witnesses and could better judge of their credibility than can we. Therefore, the judgment of the Circuit Court is affirmed.

Affirmed.

Mr. Justice Dibell having presided at the trial of this case in the lower court, took no part in its consideration here.


text:
    Emma D. Graham, Appellee, v. City of Rockford, Appellant.
    Gen. No. 4,982.
    1. Evidence—when, admission of counsel implied. Silence, following a statement by the opposing counsel, in the presence of court, jury and counsel, that a certain fact is admitted, implies concurrence in such statement.
    2. Notices—when notice required with respect to sidewalk injury sufficient. Held, under the facts in this case, that the notice in question was sufficient with respect to the giving of the name, etc., of the attending physician.
    3. Municipal corporations—how notice of disrepair of sidewalk may he shown. Notice to a city of the disrepair of a sidewalk under its control will be implied from lapse of time.
    4. Verdict—when excessive. In an action for personal injuries, a verdict for $3,000 is excessive where no bones were broken, no permanent injury shown, and only a temporary disablement established.

      Action in case for personal injuries. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed upon remittitur.
    Opinion filed August 10, 1908.
    A. P. Smith and Robert Rew, for appellant.
    Fisher & North, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

State street, the principal street in the city of Bock-ford, runs east and west, and in the westerly part of the city passes through a depression. Waldo and Leavitt streets run south from State street a block apart, and about midway between Waldo and Leavitt streets is a culvert about six feet wide, having a plank covering, extending across State street in a northwesterly and southeasterly direction, on a level with the sidewalks on both sides of State street. This culvert formed a convenient crosswalk in the middle part of the block, and in wet and muddy times was much used as such. A street car line extended along the center of State street, and the ears operated thereon habitually stopped to take on and discharge passengers at this culvert. On the afternoon of March 13, 1907, a Mrs. Gordon, who lived just west of this culvert, entertained some ladies, among whom was appellee. About five o’clock in the afternoon, on their way home, 12 or 15 of these ladies gathered on this culvert, and waited for the street car. When the car came they moved to get on, and appellee, in so doing, stepped into a hole, or upon planks that were decayed and rotten, and her left leg went through the planking to above her knee, and she sustained injuries, to recover damages for which she brought this suit in the Circuit Court of Winnebago county against the city of Bockford.

The declaration contained two counts, both charging appellant with the possession of, and control over, a crosswalk on State street; its duty to maintain the same in a reasonably safe condition for the use of passers thereon, while in the exercise of ordinary care for their safety; and averred that, on and before the 13th day of March, 1907, appellant had negligently permitted said crosswalk to become and remain in an unsafe condition, and that appellee, while passing along and over said crosswalk or culvert, in the exercise of ordinary care for her own safety, necessarily stepped into a hole, or upon a decayed and rotten place in ,the covering of the culvert and was permanently injured. A demurrer to the declaration was interposed and sustained, on the ground that it failed to allege the notice in writing, provided for by paragraph 7, section 2, chapter 7, Hurd’s B. S. 1905. On leave obtained, the declaration was amended to meet the requirements of said paragraph 7. The original demurrer, ordered to stand to the amended declaration, was overruled, a plea of not guilty was filed, and a trial had, resulting in a verdict of $3,000 for appellee. A motion for a new trial was overruled, judgment was entered on the verdict, and the city prosecutes this appeal.

It is first urged that the notice was not offered in evidence. The bill of exceptions recites, that after the jury were impaneled, and the trial commenced, the attorney for appellee stated that it was admitted that the notice he handed the reporter for identification was filed in the office of the city attorney, and city clerk, of appellant on July 1, 1907. The notice was then read into the record in the presence of the jury. It would have been more in harmony with the practice if appellant’s attorney had made the admission, but as he offered no objection, his silence indicated his assent. If a formal offer of the notice was necessary, we regard this as a sufficient offer, and have no doubt it was so understood by counsel for appellant.

The notice gave the name of the attending physician as F. H. Kimball, his residence as Bockford, Illinois, and the street number of his office. During the examination of appellee it developed that she first called Dr. James, a lady physician, not her regular physician, who visted her but once at that time. Later she employed Dr. Kimball, who treated her for her injuries. It is argued that the notice was insufficient for the reason that it did not name Dr. James as the attending physician. While it is true that the evidence shows that Dr. James was called or visited appellee once, before Dr. Kimball was called, and that a long time after service of the notice, Dr. James did treat her, as it is said, for some female difficulty, it is clear from the evidence that Dr. Kimball treated her regularly for the injuries said to have been occasioned by the accident; and we are of the opinion that Dr. James was not her attending physician, but that Dr. Kimball was, within the meaning of the law, and that the notice complied with the requirements of the statute in that particular.

It is undisputed that many people were in the habit of crossing the street on this culvert, particularly when the crosswalks at the street intersections were muddy, and also that the street cars stopped at this culvert to discharge and receive their passengers.

While appellant does not deny the existence of the hole or defect in the covering of the culvert, it urges that appellee’s proof failed to bring notice of this condition to appellant.

One witness for appellee testified that she saw the hole in the covering of the culvert on the day of the injury, and during the summer of 1906; and one, that he saw the hole during the holidays of 1906 and 1907, and that it was three inches wide and twelve or fourteen inches long. Four other witnesses for appellee testified to the defective condition of the covering of the culvert at the point where appellee was injured, prior to her injury. A number of witnesses for appellant, who passed this point frequently, testified they did not see the hole. This was negative evidence. One of appellant’s witnesses said that he examined the hole after service of the notice, and found it so small that he could not get the toe of his shoe in it, yet the fact remains, and undisputed, that appellee’s leg, to a point five or six inches above the knee, went through the hole, however small, injuring the muscles and cartilages about the knee. The hole was repaired March 19, 1907, six days after the accident. Appellant’s witnesses were not definite in fixing the time at which they saw the culvert, and from their testimony it is not plain whether it was before or after it was repaired.

Whether the hole, or decayed and rotten place in the covering of the culvert, through which the evidence shows appellee’s leg went, had been there a sufficient length of time to charge the city with notice thereof, and the duty of repairing it, and whether the culvert, with its surroundings, was such as to invite people to cross upon or travel over it, and whether people did customarily so use it, and whether it was a lack of due care for appellee to go upon it to take the car, and whether appellee was injured through stepping into the hole, or breaking through the decayed or rotten place, were all questions for the jury, upon which there was ample evidence to support a verdict for appellee* and as the jury were not erroneously instructed on the law applicable to the evidence, we are not inclined to disturb their verdict on the question of appellant’s liability.

Counsel for appellant argues that it cannot be determined how much of appellee’s pain and suffering was due to the injury to the knee, and how much to female troubles. On the trial, appellee offered to show that she had suffered from female troubles resulting from the injury, which, on objection of counsel, she was not permitted to do on the ground that there was no averment warranting it. Counsel for appellee made some statements in the presence of the jury, to the effect that appellee was suffering from female difficulty, as a result of the injury, but as the court was not asked to rule upon the propriety of these statements, they are not here presented for our consideration.

Appellant’s claim that appellee’s damages are too large for the injury sustained, is not entirely without merit. She was injured on the 13th day of March, called a physician on the 15th or 16th, who attended her about a dozen times. No bones were broken, but she remained in bed about a week. Thereafter on the advice of her physician, she, as he says, remained in bed about five weeks as a rest cure. Several witnesses testified that they had seen her walk about the street and did not notice that she walked lame, and no permanent injury was proved. In fact, the evidence suggests a complete recovery in time. This leads us to the opinion that $3,000 is more than adequate compensation for the injuries of appellee. The opinion in this case will be lodged with the clerk, and notice thereof given to the parties, and if appellee will remit $1,500 of the judgment within seven days, it will be affirmed for the remaining $1,500 at the costs of appellee, otherwise the judgment will be reversed, and the cause remanded.

Affirmed upon remittitur.

Thereafter appellee filed here a remittitur in the sum of $1,500 and the judgment is accordingly affirmed for the sum of $1,500 at the costs of appellee.


text:
    William F. Smith, Appellee, v. Central Railway Company, Appellant.
    Gen. No. 4,986.
    1. Instbtjctioits—when, upon right of recovery erroneous, in ignoring defense of release. In an action on the case for personal injuries, an instruction telling the jury that if they find certain facts they should render a verdict for the plaintiff, is erroneous in ignoring the defense of release, which was interposed in the cause and supported by competent evidence.

      2. Instructions—when upon question of negligence erroneous. An instruction upon the question of negligence Is erroneous if it, in effect, takes away from the jury the determination of such question.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthington, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Pinkney & McRoberts, for appellant.
    Charles S. Stubbles and Edward D. McCabe, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

William F. Smith, appellee, a resident of Fulton county, Illinois, with two others came to Peoria on March 26, 1905, and for the purpose of viewing the city, between one and two o’clock in the afternoon, boarded oise of appellant’s cars on its Adams street line and rode south from a point about half a block northerly from where appellee claims the accident in which he was injured occurred. Appellant was then operating a double track street railway line from a street known as Western avenue, northerly along Adams street through the city of Peoria to the village of Averyville. Western avenue at the point where the accident occurred, was the southwesterly terminus of appellant’s cars on Adams street at that time, and it intersected Adams street at about right angles in a southeasterly and northwesterly direction. Just below Western avenue the double tracks cut into a single track line, and from that point on to the southwesterly limits, different cars operated on a single track. At the time of the accident the cars on the double track line on Adams street were switched over at Western avenue, so the cars bound north on Adams street from Western avenue were on the lower or river side and those bound south were on the upper track. Appellee boarded the car running on the upper track going south on Adams street. It was a trailer car attached to a motor car. About 25 feet below the southerly line of Western avenue the trailer car was detached from the motor car, the motor car continuing on south until it reached the place where it could return north on the lower track on Adams -street. The trailer car was then pushed down the single track to a point where the motor car could back up and couple on to it. While the course of the trailer car was being changed from the upper track to the lower, appellee was thrown to the ground and injured.

He brought this suit in the Circuit Court of Peoria county to recover damages for the injuries so received, and filed a declaration containing two counts substantially alike, charging that appellee was, on March 26, 1905, a passenger on one of appellant’s cars, and appellant’s duty to protect its passengers while alighting from or boarding its cars; and averred that, on said day, while appellee was in the exercise of due care for his own safety, while attempting to alight from one of appellant’s cars that had stopped, appellant’s agents and servants negligently and carelessly caused said car to be suddenly started, thereby throwing him to the ground, whereby he received permanent injuries. The plea of not guilty was filed and a special plea setting up in bar a release of all damages by reason of the accident and injury, for a valuable consideration, under seal, executed by appellee. Appellee obtained leave- of court to reply double to this special plea. One replication averred that the release was not his deed, and the other, that it was obtained from him by fraud and circumvention. To the latter, appellant-filed a rejoinder denying the truth of the replication. There was a trial on issues'joined on the similiters tendered by the plea of not .guilty and the rejoinder. Appellee had a judgment for $1,000. A motion for a new trial was overruled, judgment was entered on the verdict, to reverse which this appeal is prosecuted. A review of the facts is here rendered unnecessary for the reason that we conclude from an examination of the record that it is necessary to submit the case to another jury. We therefore express no opinion as to what the evidence either tends to prove or disprove. • There was a sharp conflict in the testimony bearing upon the liability of appellant and a like conflict in the evidence as to what transpired between appellee and the parties obtaining the release of damages at the time it was executed. With this conflict in the evidence the court, at the request of the appellee, gave the jury the following instruction:

The court instructs the jury that if they find from the greater weight of evidence in this case that the plaintiff, as alleged in the declaration, was a passenger for hire on the defendant’s car, and that the car was stopped for the purpose of permitting the plaintiff to alight from it, and that while he, in the exercise of all due care and caution for his own safety was in the act of alighting therefrom, the car was, without warning to him, suddenly started by the defendant’s employes or agents and by reason thereof plaintiff was thrown to the ground and received injury therefrom, then your verdict should be in favor of William F. Smith, plaintiff in this case.”

This instruction entirely ignored the issue formed by the rejoinder to the second replication. Every material statement in that instruction might be proved, and yet if fraud and circumvention were not used in procuring the execution of the release, appellee could not recover. In Holloway v. Johnson, 129 Ill. 367, the court said: “Where the evidence is conflicting and contradictory, and the case is one which may, on the facts, be decided either way, it is of great importance that the instructions of the court should be accurate, so that the jury may not be misled, but be left free to arrive at a correct conclusion from the evidence.” While it is the well settled law that the- instructions of the court must be taken as a whole, as contended by appellee, and that the law applicable to different questions may be stated in separate instructions, and the law applicable to all questions involved need not be stated in each instruction given, in such case, the instructions supplement each other and where the law is fairly stated when viewed as a series they then fulfill the legal requirements. But where an instruction in effect directs a verdict, or by the ordinary interpretation of the language used it is susceptible of being understood by an ordinarily intelligent person as assuming the finding of a verdict by a jury for one of the parties, such an instruction must be regarded as directing a verdict. Pardridge v. Cutler, 168 Ill. 504; Montgomery Coal Co. v. Barringer, 218 Ill. 327; Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243; Ill. Central R. R. Co. v. Smith, 208 Ill. 609; C. & A. R. R. Co. v. Kuckkuck, 197 Ill. 307.

This instruction was erroneous for the reasons already indicated, and for the further reason, that in effect it told the jury that appellant’s servants were negligent in starting the car as they did, instead of leaving it to the jury to determine whether the manner in which the car was started amounted to negligence.

An examination of other of appellee’s instructions complained of discloses no reversible error except in the third instruction, which is erroneous for the reason first assigned to the first instruction. For the errors indicated in the first and third instructions, the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    John H. Savage, Administrator, Appellee, v. Hayes Brothers Company, Appellant.
    Gen. No. 5,001.
    1. Master and servant—when former guilty of negligence. To order a hoy, 17 years of age, inexperienced, who was unable to speak or understand English, to work in a place, the dangers of which ought to have been known to the master, constitutes actionable negligence.
    2. Master and servant—what rish not assumed. A servant, especially a boy under his majority and inexperienced, has a right to suppose that he has been furnished with a reasonably safe place in:which to work; he does not assume the risk arising from the defective construction of the building underneath the structure, out of sight, and not shown to have been known to him.
    3. Evidence—as to what opinion competent. It is competent to show by the opinions of witnesses as to whether or not the construction of a cement house was reasonably safe for the storage of the quantity of cement contained therein at the time of its collapse.
    4. Evidence—when opinions of toitnesses competent. When the facts upon which opinions are founded cannot be ascertained and made intelligible to court and jury, the opinions of witnesses may be received.
    5. Damages—presumption as to, in action for death caused by alleged wrongful act. Where the deceased is a minor and leaves a father entitled to his services, the law presumes there has been a pecuniary loss from his death, for which compensation under the statute may be given.
    6. Trial—when improper allusions in questions not ground for reversal. Allusions to an insurance company interested in the defense of an action, are improper to be made in questions put to a witness, but held, under the facts of this case, not ground for reversal;
    Trespass on the case. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooter, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    J. L. O’Donnell and T. F. Donovan, for appellant; R. J. Folonie, of counsel.
    Donahoe, McNaughton & McKeown, for appellee.
   Mb. Justice Willis

delivered the opinion of the court.

Appellant, a corporation, was a contractor on the works of the Sanitary District of Chicago, engaged in erecting a power house and other improvements for said district near Lockport, Will county, Illinois. Large quantities of cement were needed in its work, which had to be inspected under certain time conditions, and in order to meet those conditions it became necessary to store the cement. To do so, appellant erected a building, hereinafter called the cement house, a few hundred feet from the power house, about 40 feet wide, 80 feet long, and 10 feet high at the eaves, with a half pitch roof. The natural surface of the ground was somewhat uneven, and the soil was of a gravelly nature, ranging from 18 inches to 2 feet in depth above solid rock. The surface of the ground was leveled up with crushed stone of various sizes, 7 rows of planks* 6 feet apart, were laid thereon from north to south, posts were placed on end on top of the planks, and 7 rows of 10 by 10 inch stringers were placed on top of the posts, about 5 feet above the ground. Across the stringers, east and west, 2 inch planks 12 inches wide and 14 feet long, were laid. It required three planks to reach across, with about a foot for overlap at the ends where they were spiked together. The planks were placed a foot apart through the entire building, and upon them the floor was laid, being fastened only at the ends of each piece. No bridging was placed between any of the joists, so that these joists, extending across the 40 feet, were left without support at the sides, nor was any means provided to prevent them from bucking or tipping sideways. There were two doors on the east side of the building, and two on the west. There was a railroad track close to the east side, and the cement was carried directly from the cars into the cement house, where it was piled 9 or 10 feet high, leaving two aisles three or four feet wide running north and south, and one funning east and west. "When taken out it was placed in wagons backed up to the west doors. At the time of the accident, the building’ contained about 27 carloads of cement in bags of about 90 to 100 pounds, weighing in the aggregate about 1,400,000 pounds. About 5 o’clock p. m. on May 15, 1906, John or Jo van Stulic, an Austrian boy about 17 years old, who had been in the United States only a month and a half, who could not speak nor understand English, was at work with three or four of appellant’s other .employes in the ce-, ment house, when some of the posts gave way, and the joists turned flatwise, the floor fell, the building collapsed, and he was found dead the next day under some 550 sacks of cement. "Whether deceased was engaged in moving cement from the car into the cement house, or from the cement house into wagons, when the house collapsed, cannot be definitely determined. On June 15, 1906, appellee, John H. Savage, who had been previously appointed administrator of the estate of deceased, brought this suit in the Circuit Court of Will county to recover for the pecuniary loss sustained by Elias Stulic, the father, Vaeil Stulic, a brother, and Annie Stulic, a sister, next of kin of deceased. The declaration contained nine counts and fills fourteen pages of the record. It is sufficient here to state that it averred deceased’s employment by appellant, his exercise of due care when injured, his death and its manner; and appellant’s negligence in the use of insufficient materials in the cement house, and negligence in its construction, and negligence in overloading the same. There was a plea of not guilty, a trial and a verdict for appellee for $1,500. A motion for a new trial was denied. Judgment was entered on the verdict, and this appeal is prosecuted by the company.

The record discloses that the cement house had shown evidence of a collapse for some time previous to the accident, and that the attention of appellant had been called to its dangerous condition. It appears that. James Francis, employed in and about the cement house, testified that he reported to appellant’s president that he heard something give way, and that the president replied that the building could not fall; and that it would hold all the cement that could be put into it, and to put in all it would hold. Appellant’s president denied that he had such a conversation with Francis. But Biley, appellant’s inspector of the cement house, testified that several times previous to the accident Francis called his attention to a sound like wood cracking in the building, and that he heard such noises at intervals for two or three weeks before the accident. Peters, a contractor employed by appellant, testified that he had in company with a civil engineer inspected the cement house several times; and that three weeks before the accident they went over the building, and finding the floors out of level, had it jacked up; and that the southeast corner had settled five or six inches. About a week before the accident, he found the floor had settled and put men at work to right it, which they did by jacking it up and driving long tapering wedges on top of the posts; and that the weight of the cement caused the ground underneath to settle; and that he had noticed that the filling of the cement house would sometimes cause the posts to settle a little.

Appellant argues that negligence was not "proven. We are of the opinion that the negligence charged in the declaration is clearly supported by the evidence. The proof shows that the building was of unsafe and faulty construction, and that it was very much overloaded at the time of the accident; and that appellant knew of its unsafe condition or ought to have known of its unsafe condition, as it appears slight attempts at repairs were made three weeks before, and one week before the building collapsed. To order a boy of the age and inexperience of deceased, who was unable to speak or understand English, to work in a place, the dangers of which ought to have been known to appellant, certainly amounts to actionable negligence.

It is argued that the danger of the collapse of the cement house was a risk assumed hy deceased. We are of the opinion that deceased had a right to suppose that he had been furnished with a reasonably safe place in which to work; and that he did not assume the risk arising from the defective construction of the building underneath the structure, out of sight, and not shown to have been known to him. We think the fact that he was engaged in the regular business of his employer, working in the place his employer provided, and under the direction of the employer’s foreman, and in the absence of all proof that he was doing anything out of the ordinary, or anything outside his daily duty, warranted the jury in finding he was in the exercise of due care.

Appellant contends the court impr.operly admitted the evidence of certain witnesses who undertook to give their opinions as to whether the construction of the cement house was reasonably safe for the storage of the quantity of cement contained therein at the time it collapsed, it being urged that this testimony falls under the rule that even an expert should not be allowed to give an opinion where all the facts upon which the opinion is based can be made sufficiently intelligible to court and jury. Whether this cement house, constructed and filled as it was with 1,400,000 pounds of cement, was dangerous, clearly was not a matter of common knowledge, and therefore plain and open to the jury. When the facts upon which opinions are founded, cannot be ascertained and made intelligible to court and jury, the opinions of witnesses may bo received. City of Chicago v. McGiven, 78 Ill. 347; Illinois Central Railroad Company v. People, 143 id. 434; Gundlach v. Schott, 192 Ill. 509. To say the least, it was not in our opinion, a matter of so common knowledge to the jury that it can be said that the trial court committed error in permitting the introduction of expert testimony. In many cases it may be difficult to say whether or not the construction of the subject-matter under consideration is so intricate that the jury cannot he made to understand it fully without admitting the opinion of experts, and the court must therefore often exercise a discretion to determine when such evidence may be heard. Gundlach v. Schott, supra.

The court refused the 13th instruction requested by appellant which said that there was no evidence that the father had any right to the wages of deceased. The proof was that the deceased was under age and that he left a father. Where the deceased is a minor and leaves a father entitled to his services, the law presumes there has been a pecuniary loss from his death, for which compensation under the statute may be given. C. & E. I. R. R. Co. v. Huston, 196 Ill. 480. In this case there was nothing to rebut the presumption.

The court refused appellant’s 14th instruction, which was to the effect that if the deceased’s earnings did not exceed his living expenses, only nominal damages could be recovered. This instruction was properly refused, because the father had a right to withdraw deceased from appellant’s services, and put him to work for himself. C. & E. I. R. R. Co. v. Huston, supra.

The court refused appellant’s 15thinstruction, which related only to the right of the brother and sister to recover. This instruction was properly refused. B. & O. S. W. v. Then, 159 Ill. 535.

Appellant’s 16th instruction was properly refused for the same reasons indicated as to the 14th and 15th instructions.

There is, in our opinion, but one serious question in this record. James Francis, a witness for appellee, having been cross-examined by appellant with reference to a statement he had signed concerning the accident, after it had been prepared by one Garrett, was re-examined as to why the statement was sought from him, and stated that Garrett was an agent of the insurance company. This answer was excluded by the court. Thereafter, and after Francis had been repeatedly asked by appellant on cross-examination if he had not made different statements to Garrett at the time of signing the statement than his statement in court, and after the statement had been introduced in evidence, he was asked several questions by appellee’s attorney as to whether Garrett said he was working for an insurance company and if he gave any other reason why he wanted the statement, except for the insurance company. Objections were sustained to each of these questions, and appellant preserved several exceptions to the language used therein. Under the authority of McCarthy v. Spring Valley Coal Co., 232 Ill. 473, we do not doubt that it was improper for appellee’s attorney to make these allusions, and it is to be regretted that the verdict, otherwise right, should be imperiled by the course pursued by appellee’s attorney, especially as the ruling of the trial court indicated the danger of such conduct. However, we are of the opinion that this should not be considered reversible error in this case. First, Francis’ original reference to the insurance company was not responsive to any question, and the suggestion that the insurance company was the one procuring the statement through Garrett was therefore brought into the case in the first instance without fault of the appellee or his attorney. Second, the case is strong on its merits and the damages are exceedingly moderate, which indicates that the jury were not led astray or prejudiced by the reference to the insurance company.

The judgment is therefore affirmed.

Affirmed.


text:
    A. Alschuler & Sons, Appellees, v. B. J. Anderson et al., Appellants.
    Gen. No. 5,007.
    1. Instructions-must not ignore material evidence. An instruction is erroneous which ignores material evidence in the cause.
    2. Parent and child-what does not establish liability of former for merchandise delivered to latter. The payment of one account without protest does not render a parent making the same liable for subsequent purchases made by his minor child, in the absence of proof that such purchases were for necessaries.
    Action commenced before justice of the peace. 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.
    Butters, Armstrong & Ferguson, for appellant.
    H. M. Kelly, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This suit was commenced by A. Alschuler & Sons, appellees, against B. J. Anderson and Mary Anderson, his wife, appellants, before a justice of the peace of La Salle county, to recover for merchandise sold to the minor children of appellants. A judgment was there rendered against both, from which they perfected their appeal to the Circuit Court of said county. A trial was there had, resulting in' a verdict for appellees for $40. A motion for a new trial was denied, judgment was entered on the verdict, and this further appeal is prosecuted by the Andersons.

It appears from the evidence, that appellees, merchants engaged in selling gents’ and children’s clothing and furnishings in the city of Ottawa, Illinois, during the years 1902, 1903, 1904, sold goods to the two minor sons of appellants, who were attending school at Ottawa, their sister keeping house for them there. Appellants lived on a farm near Ottawa. In the latter part of 1901 or 1902, a settlement was made for the goods sold to the boys up to that time. ■ In March, 1903, appellant, B. J. Anderson, gave appellees a note, dated January 1, 1903, due in nine months, as a second settlement for goods sold the boys, after which time the boys continued to purchase goods of appellees, which were charged to appellants.

On October 14, 1904, $40 was paid on the last account by the daughter, with money handed her by her, mother for that purpose, and the daughter testified that she then told one of appellees that her father had sent that to him but that that was all appellees would ever get.

Appellant, B. J. Anderson, testified that when he gave the note, he said to one of the Alschulers that he was going to have this thing stopped. Appellee, Nathan Alschuler, who was present at that time, testified that he did not remember that appellant, B. J, Anderson, made such a statement. Appellant, Mary Anderson, testified, that when she paid the note, about the time it was due, she told one of appellees never to sell any more goods to any of the family, and that that was all she would ever pay. Appellee, Joseph Alschuler, testified that he was present when Mrs. Anderson paid the note,,and that she did not say not to sell the boys any more goods, that they would not stand for it. However, appellees admit receipt of notice, but contend that no goods were sold the boys after the notice was received.

Recovery is sought here upon two theories: first, that appellants authorized the children to purchase the goods; second, that the goods furnished were expenses of the family and appellants are liable under section 15, chapter 68, Hurd’s R. S. 1905.

The only evidence in the record to support the first contention is the inference that might be drawn from the fact that appellant, B. J. Anderson, paid the first bill, and gave Ms note for the second. There is no evidence in the record tending to support the theory that the goods supplied by appellees were the expenses of the family under section 15, chapter 69, Hurd’s B. S. 1905.

With the conflict in the evidence as to the time at wMch notice was given to appellees to sell the boys no more goods, and the entire absence of proof that the goods were family expenses as contemplated by the statute, or that the goods were necessary for the needs of the boys, or that appellants had not supplied them with all they needed, the court gave the jury appellees’ first instruction, which read as follows:

“The court instructs the jury that if you believe from all the evidence in the case that the certain goods sold by the plaintiff to the minor children of the defendants were necessaries, and used by said minor children in clothing and dressing themselves, and that at the time the said purchases were made the defendants and the said minor children were living together and part of the same family; and further believe that the defendants knew that said minor children had bought articles of wearing apparel, etc., from plaintiff before this last account was run, and that the same was settled by the parent to whom it was charged without protest to plaintiff for selling to the minor children and charging the same to the account of the parents; then and in that instance the parent either one or both are liable to the plaintiff for the amount you find to be due for the goods sold to the minor children of the defendants, and now unpaid, provided you further find from the evidence that said goods so sold were expenses of the family.”

TMs instruction ignored the evidence to the effect that appellants protested or notified appellees not to sell goods to the children, and told the jury in substance, that if appellants knew that their minor children had bought articles of wearing apparel from appellees before the account sued on was run, and the account was settled by the parent to whom it was charged without protest, then, in that instance, both parents were liable for the amount found to be due for the goods sold; thus authorizing the jury to find that the payment of the former account without protest, conclusively established the liability of both parents for the later bill. It is no doubt true that the former payments without objection may be a circumstance from which the jury might infer'a promise to pay, by that parent, a further account contracted without notice of revocation, but it cannot be said that it conclusively established the liabilty of the parents, either at common law, or under the statute. By it, the court determined as a matter of law, what facts constituted agency, thereby invading the province of the jury. It is not contended, nor was there any evidence offered tending to show, that appellants, or either of them, had ever authorized the boys to make the purchases in question, or that they ever gave appellees permission to furnish said goods to said boys, nor that appellants subsequently promised to pay the account, except possibly the inferences that might be drawn from appellants paying the former bills, nor is there any evidence tending to show that appellants had failed to provide properly for their children, nor any evidence of their financial condition, or that the goods were necessary for the children’s needs, and therefore a family expense. •

Appellees urge that if their first instruction was subject to appellants’ objections, their second, third and fourth instructions covered the point of notice, omitted in the first instruction, so thoroughly that the jury were not misled. While it is true that appellees’ second, third and fourth instructions may have supplied the element of notice omitted from the first, they did not cure the other errors pointed out, and are subject to some of the other objections made to the first instruction.

It is unfortunate that in a suit where the amount involved is less than the costs of litigation, it should be necessary to order another trial; but a verdict, however small, cannot be permitted to stand in a case in which the proof is slight or the evidence conflicting, where it is apparent that the jury may have been influenced in arriving at that verdict by instructions erroneous in some material particular.

The judgment is reversed and the cause remanded for the error indicated.

Reversed and remanded.