text:
    H. A. Six, Appellee, v. A. W. Sikking, Appellant.
    I. Malicious prosecution—what defense to action of. Held, under the circumstances shown by the evidence in this case, that the disclosure made to counsel in good standing together with the facts established were such as to exclude the inference of malice.
    2. Malicious prosecution—when instruction as to liability erroneous. An instruction which tells the jury that to constitute probable cause for a criminal prosecution there must be a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused was guilty of the offense charged, is erroneous; the word “reasonably” should have been inserted to qualify the word “cautious.”
    3. Instructions—submission of questions of law. An instruction which leaves to the jury to determine the “material” facts is improper as leaving to the jury the determination of questions of law.
    4. Instructions—estoppel to complain. A party is estopped to question inaccuracies in instructions where he has caused the court to give instructions containing like inaccuracies.
    Action in case. Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Frank L. Hatch and Hamilton & Catron, for appellant.
    W. W. Shelley and W. St. J. Wines, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action on the case brought by appellee against appellant for alleged malicious prosecution. The jury returned a verdict in favor of appellee and assessed his damages at the sum of $900. Judgment was rendered upon such verdict, from which this appeal is prosecuted.

The first count of the declaration charges, in brief, that the defendant, without probable cause, procured an indictment by the grand jury to be returned and caused the defendant, to be arrested and deprived of his liberty for one day, and to give bail and to be placed on trial under such indictment. It is further alleged that upon such trial the jury returned a verdict finding the plaintiff not guilty, and the said prosecution was wholly ended and determined. The second count charges that the defendant, without probable cause, charged the plaintiff with having committed larceny as bailee, and procured him to be arrested and imprisoned for the space of one day, whereby in order to regain his liberty he was compelled to furnish bail in the sum of $500; that upon a trial by jury for such supposed offense he was duly acquitted and discharged.

The evidence shows that appellee was indicted by the grand jury of Sangamon county, at the January term, 1909, for larceny as bailee. The indictment charged that he fraudulently and feloniously converted to his own use, with intent to steal the same, one horse, one wagon and one set of harness, of the goods and chattels of the appellant; that he was thereafter arrested on said charge and .imprisoned in the county jail for an hour or two, until he had given bail for his appearance for trial; that in March, 1909, he was tried upon said indictment and acquitted; that no further prosecution on said charge had been had, and that he had paid an attorney the sum of $50 for defending him.

The evidence, briefly stated, discloses the following facts: Appellant was a dealer in farm implements. Appellee dealt in horses and conducted a'livery barn. Both reside and did business in the city of Springfield. On September 26, 1908, appellant and appellee entered in to a written contract which provided that appellant should turn over to appellee two horses, a wagon gear and a set of harness, then in the possession of appellee and upon which appellant had a chattel mortgage which he was threatening to foreclose; said contract further provided that the property was to be retained and cared for by appellee at the expense of appellant, for the period of sixty days; that if appellee found a purchaser for the property within such time he should be entitled as commissions for his services, to any excess of the purchase price received over the sum of $140, and that if no sale was made within said sixty days, the property was to be returned to appellant. Appellee being unable to dispose of the property for cash, negotiations were had between the parties toward trading the same for a jack, but the same were unsuccessful. On December 1, appellee sold his business to one Shelton, who took possession on December 6. Shortly prior thereto appellee had rented one of the horses to one Glenn, and while in the possession of Glenn said horse was so injured that it bcame necessary to kill it. Appellee testified that immediately thereafter he informed appellant of such fact, and that after he turned over the barn to Shelton, he never had possession of appellant’s property; that prior thereto he informed appellant that Shelton was to take charge of the barn; that the property would.be there and appellant could get it at any time he desired, and that this arrangement was satisfactory to appellant. Appellant denied that appellee ever reported to him the death of the horse. One Boblett, an employe of appellant, who visited the barn several times while the proposed trade for the jack was pending, testified that upon his third visit appellee told him the horse was dead, but that he did not inform appellant. Appellant thereafter sent one Myers, another of his employes, to the barn after the property. Myers reported to him that he could not find the property there and that appellee had informed him that one of the horses was dead. A few days later the other horse was left by some one at appellant’s place of business, but he never received the rest of the property nor learned its whereabouts.

Thereafter, on January 4, 1909, appellant wrote appellee a letter expressing disbelief in the story that one horse was dead, and demanding immediate return of the other horse, wagon and harness. Failing to receive the property, appellant consulted one Weaver, an attorney and justice of the peace, stating the foregoing facts and that he had sent down for the property and was unable to find it, and could not get any information from appellee as to what had become of it, and inquired whether he could secure the property by replevin. Weaver advised him that he could not, if he did not know its whereabouts, and also advised him, as an attorney, that under the circumstances appellee was guilty of larceny as bailee. It was then suggested by one or the other that a warrant be sworn out, but Weaver advised that the state’s attorney be first consulted, and afterward himself consulted the assistant state’s attorney. Shortly thereafter, appellant was called- to the state’s attorney’s office, and claims to have there related to him and his assistant the history of this affair and his efforts to recover the property, including the report that one horse had died. Both the state’s attorney and his assistant thereupon advised appellant that under the facts as stated, appellee was guilty of larceny as bailee and directed appellant to go before the grand jury then in session. Appellant was afterward taken before the grand jury by the assistant state’s attorney, and there repeated Ms former statement of the facts. Appellee was indicted for larceny as bailee of the missing property in question. Subsequently, upon his trial, appellant was again called and testified to the same facts as stated by Mm to the state’s attorney and the grand jury. There is evidence tending to show that on neither of these occasions did appellant state all of the facts within his knowledge, but that he stated those that he regarded as material. The evidence further shows that the state’s attorney, his assistant, and Weaver, were all attorneys of good standing in the community, at the time they severally advised appellant that appellee was guilty of larceny as' bailee. There was also evidence tending to show that the general reputation of appellee in the community, for honest and- fair dealing in business, at the time of the transaction, was bad.

At the close of the plaintiff’s evidence, and again at the close of all the evidence, appellant moved the court to direct a verdict of not guilty, on the ground that there was no sufficient evidence tending to prove the charges of malicious prosecution. We think there was evidence tending to prove the plaintiff’s case, and the trial court did not err in submitting the-issues of fact to the jury. A majority of the court have, however, arrived at the further conclusion that the finding of the jury that malice and want of probable cause were established by the greater weight of the evidence, was not warranted by the evidence, and "was manifestly contrary thereto, and that the judgment should for this reason be reversed and the cause remanded for another trial. We are constrained to believe that the conduct of appellee during the entire transaction was such as to create a strong suspicion that he was not acting in good faith toward appellant in their dealings, and while he was not shown to have been guilty of the offense for which he was indicted and tried, we think that the facts and circumstances within the knowledge of appellant at the time he made complaint to the state’s attorney, together with the inferences fairly and reasonably dedncible therefrom, were sufficient in themselves to warrant a reasonably cautious person in the belief that appellee, while in the possession of the property as bailee, had fraudulently converted the same to his own use.

By plaintiff’s third instruction the jury was told that to constitute probable cause for a criminal prosecution, there must be a reasonable ground for suspicion, supported by circumstances sufficiently strong-in themselves to warrant a cautious man in the belief that a person accused was guilty of the offense charged. We think the rule is incorrectly stated, in that the word “cautious” should have been qualified by the adjective “reasonably” or some equivalent word. The standard fixed is higher than the law re-, quires The policy of the law is to encourage prosecutions where there are facts and circumstances that would induce the belief in the mind of a reasonably cautious man of the guilt of the party accused. Murphy v. Larson, 77 Ill. 172. Probable cause is defined as such a state of facts in the mind of the prosecutor, as would lead a man of ordinary caution and prudence, to believe or entertain an honest and strong-suspicion that the person arrested is guilty. Harpham v. Whitney, 77 Ill. 32.

The fourth instruction given at the request of the plaintiff informed the jury that before the defendant could shield himself by the advice of counsel, it must appear from the evidence that he made, in good faith, a full, fair and honest statement of all the material circumstances bearing upon the supposed guilt of the plaintiff, which were within the knowledge of the defendant, or which the defendant could by the exercise of ordinary care have obtained, to a reputable attorney in good standing, and that the defendant in good faith acted upon the advice of said attorney in instituting and carrying’ on the prosecution against the plaintiff.

Plaintiff’s fifth instruction was to the effect that if the jury believed from the evidence, that at the time the defendant talked with his attorney, Bernard, he withheld from Bernard material facts within his knowledge, or which in the exercise of common prudence he might have known, then the fact that Bernard may have advised the defendant to prosecute the plaintiff, could not avail the defendant as a defense to this suit.

It is insisted that the foregoing instructions do not correctly state the law; that it is not essential that the defendant in an action of this character, in order to justify himself in commencing a prosecution, must show that he exercised ordinary care or common prudence to ascertain all the facts bearing upon the supposed guilt of the plaintiff, but that the whole duty of the defendant is performed when he honestly states all the facts and circumstances within his knowledge. An instruction identical with the fourth instruction was approved in Boy v. Goings, 112 Ill. 656. It was therefore not error to give the same, nor the fifth, which is substantially similar. While these instructions were misleading in that they refer to “material” facts without disclosing to the jury what facts as a matter of law were material, and in following them the jury might have concluded that some particular fact was or was not material to be stated, when the contrary was true, appellant is estopped to question the inaccuracy in this respect, for the reason that a like error appears in his fourth modified instruction, both as originally submitted, and as given.

For the reasons stated, the judgment of the- Circuit Court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Puterbaugh

license: Public Domain

text:
    William Keeley, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Contributory negligence—what may he considered by the jury in death case. Where there was no eye witness to the accident the jury has a right to take into consideration evidence as to the habits of care of the deceased and also the natural instinct of self-preservation.
    2. Master and servant—when violation of rule precludes recovery. If a servant with knowledge of the existence of a rule adopted and enforced by his master to secure the safety of his servants, knowingly violates the same, no damages can be recovered for his death, and it is for the jury to determine whether a rule which the servant violated is applicable under the particular circumstances of the case.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of Mattoon; the Hon. T. N. Cofer, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin, Gillespie & Fitzgerald and James Vause, Jr., of counsel.
    Voigt & Brookings and F. C. Smith, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action on the case by appellee as administrator, against appellant, to recover for the death of his intestate, Walter E. Keeley, a brakeman who met with his death while in the employ of appellant. The trial in the Circuit Court resulted in a judgment against the defendant for $500, to reverse which this appeal is prosecuted.

The first count of the declaration, after alleging the relation of master and servant, charges that the death of the plaintiff’s intestate Keeley resulted from the negligence of the defendant in allowing a portion of its switch track near the station of Middlesworth, to remain in unsafe repair and condition, and permitting certain ties and the ends of certain ties to remain above the surface of the ground; and permitting the south rail of said switch track to remain above the surface of the ground; and in failing to have the ground between the ties and the bottom of said rail, and between the ends of the ties, so filled up that said Keeley would not be exposed to danger while attending to his duties as brakeman; and that while said Keeley in the performance of his duties, in uncoupling cars passing along and upon said switch track, was standing and walking upon a portion of said switch track, and while he was making a coupling between certain cars and an engine, at the head of said engine, and while he was' standing and walking upon and along said portion of said switch track, which he was obliged to do in order to get upon the pilot of said engine and ride along and upon said switch track, to make couplings and uncouplings of cars, he was unnecessarily exposed to danger, and that he then and thereby stumbled over and upon said ties and fell between the pilot of said engine and said cars attached thereto, upon the south rail of said switch, and was run over and killed. The second count charges that Keeley stumbled and fell by reason of the projecting ties. The third count charges that he caught his foot in the track and rails of said switch track and stumbled and fell over said ties which remained above the surface of the ground, and thereby unavoidably fell to and upon one of the tracks of the defendant.

The plaintiff’s intestate, Walter E. Keeley, who had been in the service of the defendant railroad company for several weeks, was at the time he met with his. death, acting as head brakeman on an extra freight train, which arrived at Middlesworth station about two o’clock in the afternoon. It first stopped about three-quarters of a mile west of the station, headed into what was known as the eastbound track, and then pulled up to within about 500 feet of the station and stopped at a point just west of where the east end of the eastbound passing track connected with the main track, the switch being on the south side of the main. East of the station, about the same distance as the east end of the eastbound passing track from the station, was the west end connection between the westbound passing track and the main track. These two switch tracks were connected with each other by what was called the commercial track, which lay immediately south of the station building and platform; the commercial track, together with said switch tracks, thus forming a continuous line of track on the south side of the main track. When the train stopped, Keeley, who was riding on the south step of the locomotive, got off and uncoupled it from the train, then returned to the step on the south side of the locomotive and rode from the switch track through the .commercial track to the westbound siding, proceeded to couple the front end of the locomotive to several coal cars, and then gave a signal to the engineer, who backed his locomotive down to a point in front of the station at the rate of three or four miles an hour. The conductor, as the cut of cars passed the station, instructed the engineer and brakeman to leave the east car of the cut on the westbound siding. He then climbed into that car, while Keeley ran along the side of the car and raised the lift-rod to uncouple that car as it was shoved back on the westbound siding. When he arrived at the south side of the cut of cars between the first and second ear of the cut, and had uncoupled the car, upon his signal the engineer stopped the cut, backed up with the remainder of the cut, and pulled the cars down again to a point near the station on the commercial track, and stopped. The last time the engineer saw Keeley he was running along by the side of the cars about the length of a car and a half from the engine, and had reached a point about 300 feet east of where the engineer finally stopped the locomotive on the commercial track. The next duty to have been performed by Keeley in the course of his work was to uncouple the cars from the locomotive. As he failed to do so, the fireman left the cab of the locomotive in search of him, and found him lying’ dead between the tracks on the commercial switch near the south rail.

The evidence as to what caused his death is altogether circumstantial. The locomotive and the coal car next to it were equipped with lifting rods and automatic couplers. The locomotive was equipped with a hand-hold and a rough iron step at the bottom of' the pilot beam sill, which extended outside of the rail a foot or more. The evidence further shows that the ballast between the rails did not completely cover all of the ties; that it covered the ties in the center of the track and sloped down toward the ends of the ties, leaving at some places from one to three inches of ,the ties exposed, and that under the rails in some places there was a space of two to three inches which was not filled with ballast, and that some of the ties turned up at the ends. The cars completely overhung the ties.

The plaintiff, over the objection of the defendant, proved by a number of witnesses, that on various occasions they had seen brakemen riding on the steps of locomotive pilots on the defendant’s road, while the locomotives were doing switching at Middlesworth, Mattoon and other stations of the class of Middles-worth, upon defendant’s railway.

It was shown by the defendant, that when Keeley entered into the employment of the defendant railway company, he was furnished with a copy of the book of rules governing the operation of its railway, among which was the following: “E. All train men, switch men and other employes are prohibited from stepping upon the front of approaching engines or cars, jumping on or off engines or cars moving at high speed, going between cars in motion to couple or uncouple them, or for any other purpose whatever.” The evidence further shows that at the time of his employment he signed a statement as follows: “I have been warned against the danger of reaching between cars to uncouple them in the event of any of the parts becoming broken or disconnected or reaching across draw bars either over or under, for the purpose of turning angle cocks or for any reason, and I hereby promise that I will not place myself in any hazardous position of this kind under any circumstances.” The evidence further shows that Keeley was sober, active, careful and competent.

The defendant also adduced evidence tending to prove that the track where the deceased was killed had been ballasted with cinders, which completely filled the space between the rails to the top of the ties, except in some instances an inch or two of the ties projected above the level of the cinders; that at the point where the body was found and for fifteen or eighteen feet in either direction from that point, cinders completely covered the ties. The engineer of maintenance of way and road supervisor for the Illinois Central railroad company testified that they were familiar with the commercial track, and that the ballasting thereon was done in accordance with the rule for ballasting such tracks upon first class railroads throughout the country.

The undertaker who took. charge of the body of Keeley after his death, testified that his right foot was cut off and the heel crushed; that the .left foot was crushed and one toe cut off; that both arms were cut off; that there were holes in his head and in his right breast; that he had on heavy -shoes,- practically new, and that the sole of one of his shoes looked as though it had been crushed and had the imprint of a rail across the bottom.

A motion was made by the defendant at the conclusion of the plaintiff’s evidence, and again at the close of all the evidence, to direct a verdict in favor of the defendant. It is urged as error that the court erred in overruling said motion, for the alleged reason, among others, that the record fails to disclose the cause of Keeley’s death or that the same was the result of the negligence of the defendant as charged in the declaration. No one witnessed the accident, or the occurrences immediately prior thereto, but the manner of death could be properly proved by circumstantial evidence. Waschow v. Kelly Coal Co., 245 Ill. 516. We think it may be rationally inferred that the deceased either struck a projecting tie and stumbled and rolled under the wheels of the car; struck a tie while attempting to step upon the step of the engine pilot, causing him to lose his balance and fall under the car, or got one foot caught under an insufficiently ballasted rail while attempting to step upon the foot-board which projected outside of the rail a foot or more, and being unable to extricate himself, was caught and crushed by the car. The testimony of the undertaker above referred to, as to the marks on the shoes of the deceased, would indicate that the latter was the case. We are unable to say, as a matter of law, that there is no evidence in the record from which the jury could reasonably deduce that the deceased was killed by reason of the negligence of the defendant as charged in the declaration. Upon the question of due care, the jury had a right to take into consideration the evidence as to the habits of the deceased, and also the natural instinct of self-preservation. R. Co. v. Beaver, 199 Ill. 36. It cannot be said that there was no evidence fairly and reasonably sufficient to warrant the jury in inferring that the deceased was in the exercise of due care and caution at the time he met with his death. We therefore conclude that the court did not err in refusing to direct a verdict for the defendant. As the judgment must he reversed'and the cause remanded for the reasons hereinafter set forth, we shall not further discuss the evidence nor determine where the preponderance lies upon the controverted issues of fact.'

By the fourth instruction given at the request of the plaintiff, the court told the jury that the rule “E” hereinbefore quoted, had “no application to a brakeman while in the discharge of his duty going between an engine and a car moving at a slow rate of speed, for the purpose of getting upon the foot-board of the engine to uncouple such engine from such car.” It was error to give the foregoing instruction. Whether or not the rule was applicable under the circumstances detailed in the instruction was a vital question in the case, for if an employe with knowledge of the existence of a rule adopted and in force by his employer, to secure the safety of his employes, knowingly violates the same, no damages can be recovered for his death. R. R. Co. v. Houck, 72 Ill. 285; R. R. Co. v. Whitcomb, 111 Ind. 212; Russell v. R. R. Co., 47 Fed. 204; Grand v. R. R. Co., 83 Mich. 564; R. R. Co. v. Rice, 51 Ark. 467; Ford v. R. R. Co., 91 Iowa, 179. We are of opinion that a fair and reasonable construction of the rule is that it not only prohibits brakemen from going between cars to couple or uncouple them, or going between a car and a locomotive for the purpose of coupling or uncoupling them, from standing upon the front of approaching engines or cars, or jumping on or off engines and cars when moving at a high rate of speed, but that it also prohibits them from going between cars or an engine and a car in motion to couple or uncouple them or for any other purpose whatever. It seems to us that the foregoing construction is consonant with the object to be obtained—that is, the safety of the employes. We think the construction given by the court to the word “cars” as employed in the rule is too restricted, and unreasonable. It is obvious that to go between an engine and a car while the train is in motion is as dangerous as g’oing between. two cars, under the same circumstances. The word “cars” in the connection used must be held to include locomotives. The effect of the giving of the instruction in question, therefore, eliminated the defense based upon the alleged violation of the rule, and the defendant was obviously prejudiced thereby.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Ada Rantz, Appellant, v. William Dale et al., Appellees.

      Wills—construction as to extent of testamentary disposition to executor. Held, from a consideration of the will in question in this case, that the testator intended that his executor should collect rents as well as income from personal property and make distribution thereof as provided by the will and that while no specific devise of real estate was made to such executor such devise was to be implied from the entire construction of the will.
    Bill in chancery. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Bellatti, Barnes & Bellatti, for appellant.
    Kirby & Wilson and George L. Merrill, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

The questions involved in this appeal arise out of the following facts: Frank Rantz departed this life intestate, leaving him surviving Ada Rantz, his widow, and one child, Francis R. Rantz, who was then about 14 years of age. He left considerable real and personal estate, and by his will devised and bequeathed to his widow certain personal property and a life estate in the homestead. He also devised to his executor in trust 160 acres of land, and directed that the net income derived therefrom should be paid to his widow during her life. The remainder of his estate he devised and bequeathed to his said son subject to certain conditions and restrictions hereinafter stated.

The widow renounced the provisions of the will in her favor, and elected to take under the statute. She then filed a bill asking that .her dower and homestead as widow be assigned and set off to her, to which bill as amended, her son, appellee Dale and certain other tenants of the real estate, appellee Wemple the executor of the will, appellant Rogers, guardian of Francis E. Rantz, and others named in the will having a possible contingent interest in the estate, were made defendants. Wemple, the executor, filed Ms answer and cross-bill claiming that by virtue of said will the testator placed all the real estate devised to his son in the hands of said executor to manage and control and to collect all the rents therefrom until said son should have reached the age of thirty years, unless he should die sooner, and praying that the will be construed by the court and that a decree be entered giving Mm, as executor, possession and management of, and the right to lease and collect the rents of said real estate devised to said Francis B. Rantz, until he arrived at the age of thirty years, unless he died sooner.

Rogers answered the amended bill asking for a construction of the will in question, denying the averments of the answer of Wemple the executor, above set forth, and alleging that by said will the testator devised real estate to his said ward unconditionally; that said devise took effect immediately upon the death of the testator; that the possession and right of possession vested in his ward at that time, and praying that the court so decree, and that the real estate be managed by said guardian until his ward should arrive at Ms legal majority. Such answer was afterward ordered to stand as a cross-bill. Upon a hearing on said cross-bills, the court entered a decree directing the executor to take possession of. the real estate, to hold, manage and lease the same and collect the rents thereof, until the said Francis B. Rantz should arrive at the age of twenty-one years, and dismissing the cross-bill of Rogers as guardian, for want of equity. From such decree Rogers prosecutes an appeal to this court.

The provisions of the-will relative to the devise and bequest to the said Francis B. Rantz are as follows:

“Fourth: I give, devise and bequeath to my son, Frank B. Rantz, all the rest, residue and remainder of my estate, both personal and real, not otherwise herein disposed of, but under the following restrictions and conditions, viz: I direct and order that my executor provide my son with sufficient funds from money in his-hands belonging to my estate for his comfortable but not extravagant or wasteful living expenses and for the acquiring of a liberal education, such as he may wish to avail himself of.

“Fifth: As soon as convenient after my son, Frank B. Rantz, shall have reached his twenty-first birthday, I direct that my executor place in his hands as nearly one-half of my personal property then available as shall be convenient, taking proper receipts therefor. And I further direct that when my said son reaches the age of twenty-five years that my executor shall give into my son’s possession any remaining surplus on hand belonging to my personal estate and not needed by my executor in carrying out the further provisions and conditions of this will, taking my son’s receipts therefor, but my said son, Frank B. Rantz, shall not be authorized to sell, or in any manner encumber any of my real estate until after he shall have arrived at the age of thirty (30) years; and in case he shall not live to reach the age of thirty years, or in the event of his death at any time before reaching the age of thirty years, leaving no surviving child or children of his own blood relation born in lawful wedlock, then it is my will that all my real estate, including my residence property in Waverly and the one hundred and sixty (160) acres of land, the use and net income of which is given to my said wife during her natural .life, together with any personal property remaining in the hands of my executor not disposed of, shall be, by my executor converted into money by selling the real estate and collecting any notes, accounts or other evidences of indebtedness due my estate as soon as convenient after the demise of my son and of my wife, and from the proceeds of such real estate and such personal effects I direct that my executor then pay over to the Society known as the Independent Order of Odd Fellows of Waverly the sum of ten thousand dollars, to be used solely for the purpose of building a hall for the use and occupancy of that Society, taking the receipts of the Trustees of that Order therefor, but in no event shall said ten thousand dollars be paid to said Society until said Society shall have furnished my executor with satisfactory obligation that said money shall be used for the purpose named only.

“Sixth: After paying all debts, costs, taxes and expenses, my said executor shall pay over the balance belonging to my estate to my legal heirs of blood relation in the manner provided by the Statute of the State of Illinois. The ten thousand dollars spoken of as to be paid under certain circumstances to the Society, Independent Order of Odd Fellows, is not to be paid, nor is the provision for distribution to my legal heirs of blood relation according to the laws of Illinois following to be regarded in case my son, Frank E. Rantz, lives to the age of thirty years, or in case óf his death before reaching that age, leaving a living child or children of legitimate parentage.

“Seventh: In case any attempt shall be made on the part of any person or persons whomsoever to set aside, enlarge or diminish any of the provisions or conditions written in this will, I hereby authorize, order and empower my executor to use any money or other available property belonging to my estate in the legal defense of this, my last will and testament, with all its provisions and conditions.

“Eighth: It is my will that such funds as shall from time to time come into the hands of my executor from rents and otherwise, and not needed by my executor in carrying out the provisions of my will, be loaned safely and carefully at such rates of interest as shall be obtainable with satisfactory security.”

It is admitted by appellant that the testator intended that his executor should hold the personal property in trust for the purposes specified in the will. It is insisted, however, that such was not his intention as to the real estate. We are of opinion that' it was the obvious intention of the testator, as gathered from a fair and reasonable construction of the foregoing clauses of his will, that the rents derived from the real estate devised to his son should be collected by his executor and treated as personal property for the purpose of conservation and distribution. This is indicated by the provision that the funds which Francis R. Rantz should receive during his minority, from the executor, should be furnished from moneys in the hands of the executor belonging to the estate of the testator. This language applies as well to money received from rent as to income from personal estate. Ho distinction is made as to the source from which the moneys in the hands of the executor are realized or derived. Such construction is further warranted by the eighth clause of the will, which provides that such funds as shall from time to time come into the hands of the executor from rents ■ and otherwise, and not needed by said executor in carrying out the provisions of the will, be loaned safely and carefully, etc.

Clause 4 provides that the executor provide the son, during his minority, with funds sufficient for his support and education. By clause 5, the executor is directed to pay over to the son, when twenty-one years old, one-half of the personalty then available. We think that by the words, one-half of my personal property,” used in this connection, the testator meant one-half of what, at the time of distribution, would be personalty, as distinguished from realty. It is the executor who is by clause 5 directed to give into the son’s possession, when he shall reach the age of twenty-five, any remaining surplus of personalty on hand, that is, in the hands, of the executor, and to convert into money all the realty belonging to the estate, and to collect any notes, accounts or other evidences of indebtedness due to his estate in the event of the death of the son under thirty years of age and leaving no legitimate issue surviving him, and to pay over out of the fund raised by the sale of real estate and the collection of all notes, accounts and other evidences of indebtedness due to the estate, the alternate bequest of $10,000 to the Odd Fellows Society. By clause 6, the executor is directed to pay over the residue of the fund so raised to the legal heirs of the testator, after first paying all debts, taxes and expenses. By clause 8, to lend safely and carefully such surplus fund as may come into his hands, from time to time, from rents and otherwise. By clause 7, to use any money or other available property in sustaining his will with all its provisions and conditions. We are therefore of opinion that while the testator did not by express words, devise the real estate to his executor in trust for any purpose, it was his intention to impose upon said executor the power and duty to, as trustee, manage and control the real estate devised to Francis R. Rantz, until said minor shall have arrived at his majority, in case he so long survives.

The questions as to the rights, duties and powers of the executor in the premises at the time and after Francis R. Rantz reaches his majority, and as to the ultimate disposition of the property or its control, are not necessarily involved in this appeal and need not be determined at this time.

The decree of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Baume

text:
    The People of the State of Illinois, Defendant in Error, v. John Plopper, Plaintiff in Error.
    1. Dram-shops—when indictment sufficiently identifies statute. If an indictment for selling liquor in anti-saloon territory sufficiently identifies the offense charged its words on formal conclusion will not render it bad.
    2. Dram-shops—when certificate of collector of internal revenue not extra-official. A certificate by such official which interprets the meaning of abbreviations officially used by him is competent.
    3. Dram-shops—what not essential to establishment of prima facie case of selling liquor in anti-saloon territory by proof of special tax stamps. A prima facie case of selling liquor in anti-saloon territory is made by proving the issuance to the defendant of a special tax stamp without showing that such special tax stamp was posted.
    4. Trial—when prejudicial effect of improper remarles cured. If the court sustains an objection to improper remarks and instructs the jury to disregard them, a reversal will ordinarily not be awarded.
    Prosecution for unlawful sale of intoxicating liquor. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Hogan & Wallace and W. B. McBride, for plaintiff in error.
    Arthur Yockey, for defendant in error; Leslie J. Taylor, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

Upon a trial by jury in the Circuit Court of Christian county * the plaintiff in error was found guilty under the third count of an indictment, being one of twenty-six counts, wherein he was charged with selling liquor in anti-saloon territory, and was sentenced to pay a fine of twenty dollars and to be imprisoned in the county jail for ten days. This -writ of error is prosecuted to reverse such judgment of conviction.

It is first urged that the court erroneously refused to quash said third count of the indictment because it alleges the offense charged as being “contrary to the form of the statute in such case made and provided,” etc., instead of as being contrary to the act relating to the creation of anti-saloon territory. The language of the count sufficiently indentifies the offense charged and if it is necessary the particular legislative enactment creating such offense, and as counsel for plaintiff in error do not venture to assert that the act of the legislature providing for the creation of anti-saloon territory is not a public law and a statute of the state, it must be held that the court properly overruled the motion to quash.

The evidence discloses that the village of Morrison-ville, which in the third count of the indictment is alleged to have been anti-saloon territory, lies wholly within the township of Sicks in Christian county, which township was anti-saloon territory, and plaintiff in error insists that said count is not sufficient to support a conviction because it merely alleges that the village of Morrisonville was anti-saloon territory and fails to allege that the township of Ricks was anti-saloon territory. It is not controverted that under the provisions of the statute relating to the creation of anti-saloon territory the village of Morrisonville became by operation of law anti-saloon territory upon the creation of the township of Ricks as such territory. It was sufficient that the indictment alleged the ultimate fact and it was not necessary to set out therein the evidence from which it appeared that the village of Morrisonville was wholly within the township of Ricks.

The record of the township of Ricks together with the certificate of the town clerk authenticating said record introduced by the defendant in error for the purpose of showing that said township became anti-saloon territory contained every requirement essential to its admission, and the fact that it contained some immaterial matter which could in no manner have operated to the prejudice of plaintiff in error cannot be complained of.

Plaintiff in error having failed, after notice given to produce the same, to produce the internal revenue special tax stamp or receipt issued to him as a retail dealer in liquors at Morrisonvilie, the court over the objection of plaintiff in error permitted to be introduced in evidence a copy of the official records of the collector of internal revenues properly certified to by him, from which it appears that such a special tax stamp or receipt was issued to plaintiff in error on June 30, 1909. Upon the record as certified appear the letters “R. L. D.” which are designated in the certificate as indicating “Retail Liquor Dealers,” and it is urged that it was not competent to admit an explanation of such letters by the collector in this certificate. The letters as indicated are certified to as appearing in the official records of the collector, and we see no objection to the certificate upon the ground that the collector designates therein the meaning of said letters as so officially used by him. But conceding that the portion of the certificate referred to was improperly admitted, plaintiff.in error was not harmed thereby, because it is expressly recited in the certificate that the record thereby certified relates to the payment of a special tax of a retail liquor dealer by the plaintiff in error. Furthermore, the witness Frank Glower testified that the plaintiff in error stated to him, in substance, that he (plaintiff in error) had a Government license but had “been pinched” because he did not have his license posted up. The contention of plaintiff in error that secondary evidence of the issuance to him of an internal revenue special tax stamp or receipt was improperly admitted because he could not be called upon to incriminate himself by procuring such special tax stamp or receipt is untenable. It is a sufficient answer to this contention to say that it would preclude proof of the fact altogether. It may be that plaintiff in error was within his rights in refusing to produce the special tax stamp or receipt but we think notice to do so coupled with Ms failure or refusal to comply therewith was necessary to make secondary evidence admissible and that the same was properly admitted.

Counsel for plaintiff in error insist that proof of the issuance of such special tax stamp or receipt was improperly admitted in the absence of proof that such stamp or receipt was posted and that the posting of such stamp or receipt was necessary to make the same prima facie evidence of the sale of intoxicating liquors by plaintiff in error. This insistence is based upon a misconstruction of the statute. Section 17 of the Act providing for the creation of anti-saloon territory, is, in part, as follows:

“The issuance of an internal revenue special tax stamp or receipt by the United States to any person as a wholesale or retail dealer in liquors or in malt quors at any place within the territory which, at the time of the issuance thereof, is anti-saloon territory, shall be prima facie evidence of the sale of intoxicating liquor by such person at such place, or at any place of business of such person within such territory where such stamp or receipt is posted, and at the time charged in any suit or prosecution under this act: Provided, such time is within the life of such stamp or receipt. ’ ’

The stamp or receipt having been issued to plaintiff in error as a retail dealer in liquors at the village of Morrisonville, a place within territory which at the time of the issuance of said stamp or receipt was anti-saloon territory, became prima facie evidence of the sale by him of intoxicating liquors, within the village of Morrisonville whether such stamp or receipt was posted or not. The reference in the statute to the posting of such stamp or receipt is in the disjunctive and relates only to a fixed or regular place of business within anti-saloon territory.

It is next urged that the trial court unduly limited the cross-examination by counsel for plaintiff in error of the witnesses Baker and Clayton who were employed as detectives by the anti-saloon league. As to the witness Clayton the record discloses that counsel for plaintiff in error cross-examined him fully without the interposition of any objection thereto by counsel for the prosecution, or of any ruling whatever by the trial court. As to the witness Baker the court allowed counsel for plaintiff in error all the latitude in his cross-examination consistent with the rules of law and proper practice.

The trial court gave to the jury twenty-one instructions at the instance of the prosecution and twenty-two instructions at the instance of the plaintiff in error and refused to give eighteen instructions tendered by plaintiff in error. Many of the objections urged to the instructions given at the instance of the prosecution and to the action of the court in refusing to give certain instructions offered by plaintiff in error have been answered by what we have heretofore said. A careful examination and consideration of the instructions as given by the court at the instance of the prosecution discloses that they accurately state the law applicable to the case and that the instructions tendered by plaintiff in error and refused by the court were properly refused.

The last objection urged on behalf of plaintiff in error relates to certain language used by counsel for the prosecution in the course of their argument to the jury. To so much, of the argument as was improper the trial court sustained the objection interposed by counsel for plaintiff in error and emphatically instructed the jury to wholly disregard the same. The ruling and action of the court in that regard fully offset any effect prejudicial to plaintiff in error which the language complained of was calculated to have upon the jury.

We have carefully considered all of the errors, assigned by plaintiff in error notwithstanding the fact that the evidence in the record established his guilt of the offense charged beyond the possibility of a doubt.

There is no reversible error in the record and the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    H. B. W. Kallista, Appellee, v. Mary J. Ahalt, Appellant.
    Appeals and ebrobs—when finding of chancellor not disturbed. Findings of fact by a chancellor will not be set aside unless manifestly against the weight of the evidence in the absence of intervening error.
    Bill in equity. Appeal from the Circuit Court of Adams county; the Hon. Guy R. Williams, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Walter H. Bennett, for appellant.
    W. L. Vandeventer, Brown & Soule and George T. Page, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

A former decree of the Circuit Court of Adams county dismissing complainant’s bill for want of equity upon a consideration merely of' certain affidavits filed in said cause upon the motion of the defendant to dissolve a temporary injunction theretofore issued was reversed by this court, and the cause remanded for a hearing upon the merits. 151 Ill. App. 60. The scope and purpose of the bill filed by complainant is sufficiently set forth in the former opinion of this court. Upon a final hearing by the chancellor in open court upon the consideration of the testimony of witnesses and documentary evidence a decree was entered modifying the temporary injunction theretofore granted and perpetually restraining the defendant from constructing a certain levee and from interfering with and obstructing the natural flow of surface water flowing into and upon the lands of defendant from the lands of complainant, only as to that part of said levee and that part of said quarter section lying between the southeast corner of defendant’s land and a point 60 rods north therefrom, and dissolving said temporary injunction as to the remainder of said levee and the remainder of said quarter section. The decree further ordered and directed the defendant forthwith to remove all that portion of said levee so constructed by her between the said southeast corner of her quarter section and a point 60 rods north therefrom, and to restore the ground between said points to such condition as it was in prior to the construction of said levee. This appeal is prosecuted by the defendant to reverse said decree.

The complainant is the owner of the southwest quarter of section 26 and the defendant is the owner of the southeast quarter of section 27 town 1 north, range 9 in Adams county. Said quarter sections join each other, the complainant’s being east of the defendant’s and lie between bluffs about half a mile east of complainant’s quarter and the Mississippi River, about a mile and a. half west of defendant’s quarter. Bock Creek flows west along the north boundary line of said quarter sections and on the south side of said creek a levee had existed for many years on the lands of the adjoining proprietors. In 1908 the defendant constructed and practically completed a levee upon her own land immediately west of the line dividing her land from that of the complainant, which levee when wholly completed was designed to extend from its connection with the Rock Creek levee on the north to the highway running east and west along the south line of said quarter section.

Upon the former appeal we held that the bill alleged facts which if proved entitled complainant to the relief sought. It is now urged by the defendant that the evidence fails to sustain the allegations of the bill and that upon the hearing the bill should have been dismissed for want of equity.

The evidence heard by the chancellor is somewhat voluminous, forty witnesses having testified on behalf of the complainant and twenty-eight witnesses having testified for the defendant. An examination of the plats of the levels of the two quarter sections in question made by the civil engineers and appearing in the record discloses that the northeast corner of complainant’s quarter is about five feet higher than the southeast corner of said quarter and from seven to eight feet higher than the southeast corner of defendant’s quarter, and about four feet higher than the northeast corner of defendant’s quarter. It is apparent from a consideration of these levels that surface water on complainant’s land caused by rains or by the overflow of Rock Creek, would in conformity with the law of gravity flow in a southwesterly direction, and many of complainant’s witnesses testified to their observation of facts from which it indisputably appears that surface water upon complainant’s land from the overflow of Rock Creek flowed upon and over a portion of defendant’s land at the southeast corner of her quarter section. Nearly all the witnesses in the case testified that the southerly portion of the levee as constructed by the defendant would retard the flow of such surface water from complainant’s land and the mere fact that the defendant constructed such a levee confirms the truth .of this testimony and conclusively shows that the purpose of the defendant in constructing said levee was to prevent the water on complainant’s land from flowing over and upon her land.

We have no doubt from a consideration of the evidence that the greater part of the surface water on complainant’s land caused by rainfalls flows off of his land in a more southerly direction to the highway, and that the flowage of such water in that direction is accelerated by some shallow ditches or dead furrows which run north and south in the west half of complainant’s tract of land. What was accomplished by the ditches or dead furrows on complainant’s land in carrying surface water almost due south to the highway was beneficial to the defendant, because in the absence of such ditches or dead furrows a portion at least of such surface water would have flowed in a southwesterly direction over and upon defendant’s land. The contention on the part of defendant that the conduct of the complainant in utilizing the ditches or dead furrows upon his own land precludes him in some way from asserting a right of flowage of surface water in case of floods in the natural course of drainage over and upon the defendant’s land is unsound. A somewhat like contention by the appellant in Pinkstaff v. Steffy, 216 Ill. 406, was considered by the court and held to be untenable.

Counsel for defendant places great reliance upon the case of Wills v. Babb, 222 Ill. 95, as supporting the right of defendant to construct and maintain the levee in question, and characterizes that case as seeming to be “a direct parallel with the case at bar.” There is a wide difference in the facts in the two cases which clearly distinguished the case cited from the case at bar. In the case cited the water in Hadley creek had been diverted from its natural channel by the Caffrey cut and by the construction of certain levees and dikes, and to prevent the water so diverted from its natural channel from flowing upon their lands the appellees constructed a levee along the east side of their land whereby the water was diverted into a natural outlet. In the case at bar the levee in question was constructed by the defendant for the purpose of diverting from her land surface water which in the course of natural drainage would flow thereon from the land of the complainant. •

The allegations of the bill are in the main supported by the evidence in the record and the decree of the Circuit Court will be affirmed.

Affirmed.


author: Me. Justice Baume

text:
    George H. Russell, Appellee, v. Orin Rutledge, Appellant.

      Verdicts—when not disturbed. A verdict will not be set aside on review if substantial justice has been done.
    Action commenced before justice of the peace. Appeal from the County Court of McDonough county; the Hon. William J. Franklin, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Elting & Hainline and Don P. Pennywitt, for appellant.
    H. M. Tabler, for appellee.
   Me. Justice Baume

delivered the opinion of the court.

The plaintiff brought suit against the defendant before a justice of the peace to recover two-thirds of the cost of a brick sidewalk constructed in front of the defendant’s premises in the city of Macomb, and recovered a judgment against the defendant for $13.60, from which judgment the defendant appealed to the County Court of McDonough county, where a trial by jury resulted in a verdict and judgment against him for the like amount, to reverse which judgment he prosecutes his further appeal to this court.

The uncontroverted competent evidence in the record discloses that on April 18, 1907, the defendant, who is deaf and dumb, together with other property-owners in the city of Macomb, petitioned the mayor and city council of said city, in writing, for the construction of a four foot permanent brick walk commencing on Albert street and running east to Johnson street on the north side of Piper street, one-third of the cost of said walk to be paid by the city and two-thirds by the property owners; that in July following the plaintiff constructed such a walk in front of the defendant’s premises; that the defendant was present during the time said walk was being constructed by the plaintiff and indicated to the plaintiff where he desired to have the crossing put in; that after the completion of the work the plaintiff exhibited to the defendant a bill for $13.60, being two-thirds of the cost of said walk, and the defendant nodded his head in approval; that on September 30, 1908, in response to a written request from an attorney employed by the plaintiff to collect said bill, the defendant wrote in substance that he would pay for the sidewalk if he could collect some rent due him from one Diamond; and that subsequently upon an occasion when said attorney met the defendant on the street and inquired of him in writing whether he could pay for said sidewalk then, the defendant replied in writing, “I think that I can pay it next week.” We think this evidence was sufficient to warrant the jury in finding that the defendant was liable to the plaintiff, if not upon an express contract, at least upon an implied contract to pay two-thirds of the cost of the sidewalk. The defendant has received the benefit of the labor performed and material furnished by the plaintiff and under the evidence in the record equity and good conscience requires that the defendant shall pay the plaintiff therefor. The record is by no means free from error but as the judgment manifestly stands for substantial justice between the parties and no other verdict and judgment could with propriety be returned and entered in the case we are not disposed to reverse the present judgment for the mere purpose of enabling the parties to make a faultless record.

There is no reversible error in the record and the judgment of the County Court will be affirmed.

Affirmed.


text:
    G. J. George, Trustee, Appellant, v. Walter L. Pfeil et al., Appellees.

      Partnership—jurisdiction of chancery. Chancery has exclusive jurisdiction with respect to partnership accounting and no claim can be urged by way of set-off or as the basis of an independent action which would require a court of law to enter into a partnership accounting.
    Assumpsit. Appeal from the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and judgment here.
    Opinion filed October 18, 1910.
    Barber & Barber and Mills & Neiger, for appellant.
    Milton McClure, for appellees.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit in assumpsit by G. J. George, trustee of the estate of Henry Bridgman, bankrupt, against Walter L. and George W. Pfeil, partners as Pfeil Brothers, to recover the amount due upon a promissory note bearing date March 1, 1895, for $1,403, payable one year thereafter with interest at 7 per cent per annum from date. The defendants pleaded the general issue and payment in general terms, and gave notice under the general issue of set-off in substance as follows:

(1) To merchandise purchased from February, 1896, to May 21, 1907, for family supplies, as per bill of particulars attached ..............................$1,017.69

(2) Interest on said bill from January 1, 1901, average date of purchase......... 569.84

(3) Two-thirds of grocery stock taken over by H. A. Bridgman, estimated at 80 per cent of invoice price of "$600.00......... 320.00

(4) Interest on last item from September 15, 1895 ............................. 293.00

(5) Two-thirds of $919.47 in accounts and notes collected by H. A. Bridgman, or transferred to his account, being assets of Bridgman, Pfeil & Co., as shown by bill of particulars thereof attached..... 612.98

(6) Interest on accounts and notes collected and transferred to H. A. Bridgman from

March 1,1897, average date of collection 502.50 (7) Estimated balance of principal and interest on Wm. Neibold note, signed by Pfeil Bros, as surety, wrongfully negotiated by H.'A. Bridgman............. 113.50

Total............$3,429.51

Appended to said notice of set-off is a statement to the effect that in addition to the note sued- on the said bankrupt was entitled to credit on said set-off account as follows:

One-third net assets from general store taken over by Pfeil Bros. February 1, 1896, after equalizing overdrafts of partners ............................$ 480.17

Interest on same..................... 436.95

The note bore endorsements of the payment of interést for each of the several years from 1895 to 1905 inclusive, and also of payments of $208 on November 11, 1907, and $201.86 on December 26, 1907. The trial of the cause by the court without a jury resulted in a finding and judgment in favor of the plaintiff and against the defendants for $57.07, from which judgment the plaintiff has prosecuted this appeal.

Upon the trial the defendants disclaimed all of the endorsements of interest upon the note and denied that they ever paid interest or authorized Bridgman to credit any interest thereon. The defendants also abandoned the seventh item of their set-off.

It was admitted by the defendants that the two payments of $208 and $201.86 endorsed on said note were made by them to the First National Bank of Beards-town which held the note as collateral for a loan of $400 to Bridgman and which payments liquidated the amount due from Bridgman to said bank.

The uncontroverted facts in the case are substantially, as follows: Prior to September 15, 1895, Bridgman and the defendants as equal partners, conducted a general merchandising business at Arenzville under the firm name of Bridgman, Pfeil & Co. On that day by mutual agreement of all the partners an inventory •was taken of the grocery stock which was kept separate and apart from the other merchandise, and Bridgman thereafter assumed exclusive charge of and conducted the grocery business on his own behalf, continuing however as partner with the defendants in the dry goods and clothing business until February, 1896, when the defendants with the consent of Bridgman took over the stock of clothing and dry goods and thereafter conducted that branch of the business on their own behalf under the firm name of Pfeil Brothers. At the time the defendants took over the stock of clothing and dry goods no inventory thereof was taken, the last preceding inventory having been taken on January 1, 1896. After such practical although informal dissolution of the original partnership the defendants retained the partnership books, collecting some of the accounts, taking notes payable to the original partnership in liquidation of other accounts, and paying most of the indebtedness of the original partnership. A portion of the accounts owing to the original partnership was taken and collected by Bridgman who kept a portion of the proceeds and deposited a portion with the defendants. No settlement of the partnership business was ever had between Bridgman and the defendants and it has never been agreed or determined how much Bridgman owed to the defendants or they owed to him for the stock of merchandise or any part thereof, or for the notes and accounts due to the partnership, or for the indebtedness of the partnership paid by them or him. From February, 1896, when the defendants took over the stock of clothing and dry goods until November, 1907, Bridgman purchased from them upon an open account merchandise as family supplies to the amount of $1,017.69, which amount the plaintiff concedes to be a proper item of set-off against his claim upon the note, but plaintiff contests all the other items of set-off claimed by the defendants.

The method adopted by the trial court in arriving at its finding as to the amount due upon the note is not wholly clear.. Counsel for defendants suggests that such finding was arrived at by allowing to the defendants a credit of $320 as of September 15, 1895, for the stock of groceries then taken over by Bridgman, and by allowing to the defendants monthly credits for the merchandise account for family supplies purchased by Bridgman. It is conceded by defendants that the court refused to allow by way of set-off as a credit upon the note the item of $612.98, being two-thirds of the amount of partnership accounts and notes transferred to and collected by Bridgman, on the note, because the same arose out of an unsettled partnership account, and to the action of the court in refusing to allow said item of set-off no cross error has been assigned.

The only substantive evidence in the record bearing upon the defendants’ claim of set-off here involved is the testimony of the defendant W. L. Pfeil, which is, in substance, as follows:

“No direct payments were ever made on the note except those endorsed by Mr. Condit, which were $208, on Nov. 11, 1907, and $201.86 on December 26, 1907. "We never made any other payments on the note. We never authorized Mr. Bridgman or anybody else to make any of those endorsements of interest. The note was at the National Bank of Beardstown when we made these two payments. They notified me that they held the note for collection. As we had no final settlement of our business relations, I thought likely I might possibly owe him that much and without going into details of the matter thoroughly, I made those two payments. After the execution of this note on March 1,1895, we were together doing a partnership business in general merchandise, the stock consisting of clothing, dry goods and groceries. On September 5, 1895, we turned the stock of groceries over to Bridgman by an agreement of us three. An invoice of the grocery stock was taken by all three members of the firm. I could not give the exact figures of the total invoice of the stock of groceries turned over to Bridgman, but it was $587 and something, and there was a scales and a few things that we hadn’t determined what they would be worth. Mr. Bridgman, myself and my brother were present when the invoice of this grocery stock was taken. There was no agreement as to the invoice of the stock. It was to be as usual. I don’t remember of anything being said as to the discount at that, time or at any time and there was nothing said afterwards as to the clothing or dry goods. It is a question as to what I claim as the usual discount on the stock of groceries. Some stocks are more than others. In my judgment I would think 75 cents on the dollar, taking it all round. The stock' outside of the three items which were not put down amounted to $580 and something. I have no memorandum to which I can refer outside of these figures. I have the total of the grocery stock taken by Bridgman in the book; it is $587.66; that didn’t include two scales, two tanks and one show case. My estimation of the value of those five articles would be $15 or $18, or something like that. After the stock of groceries had been taken over by Bridgman, the stock of clothing and dry goods remained about the same until the first part of February, 1896, when I talked to Bridgman with regard to the matter and told him I would take the stock of clothing and assume all the obligations of the firm and turn over the accounts to be credited on my indebtedness. There was nothing further done then. In January, 1896, an invoice was taken by different ones of the firm, the same as the grocery stock. We were simply taking it at that time. We had no thought of the dissolution; only we usually took invoice every year. We had been doing that. On January 1 we usually took an invoice, and we took that inventory and had spoken of changing the members of the firm in order to straighten up our accounts. On February 8, 1896, I mentioned I would take the clothing stock and assume all obligations and turn over accounts to him to be applied on the indebtedness and that was agreed so far as I was concerned. It was satisfactory to us. We acted on that proposition. We had made the invoice before that time. The three of us made it, but particularly I and my brother; the record was preserved of that invoice. At the time in February, 1896, the stock was taken on the basis of that invoice. At the time the invoice was taken we had not decided on a dissolution, but when we did decide on a dissolution the stock was taken over on the basis of the invoice. There was no discussion about discount. As to condition, it was just a stock of clothing, shoes, dry goods and gent’s furnishings; perhaps some of it was seven or eight years old. The different items were all marked. Part of it was shelf-worn. In my judgment a reasonable and fair discount on the prescribed value of the stock would be about 30 per cent. The invoice was made on the actual cost price, the total amount of the invoice of that stock on January 1,1896, was $5,754.90. On February 1, 1896, the invoice of the stock of dry goods and clothing taken over by myself and brother at the full cost price was $5,455.50.”

On his cross-examination the same witness testified as follows:

“On September 15, 1895, Bridgman took charge of the grocery store and stock and from that time my brother and I had nothing more to do with it. At the time Bridgman took charge of the grocery stock in his own behalf, no agreement was made by him as to just how much he would pay me and my brother for our interest in the groceries or the accounts, nor how much the stock would be discounted in estimating how much would be coming to us. Neither at that time nor any later time did we have any agreement as to how much money we would have. At the time he took those things over we expected to have a settlement and adjust those things at a later time. After September 15, 1895, Bridgman continued with us as partner in the dry goods and clothing business, and about February 1, 1896, myself and brother took exclusive charge of the clothing and dry goods store. We agreed on dissolution, but we never had come to any conclusion with Bridgman with regard to prices on the merchandise.

“Q. The Court: Do you mean the grocery store or clothing store?

“A. All of them.

“About the same time Bridgman took a lot of accounts and collected them, and we took some of the accounts and collected them. Our portion of the accounts he collected should be credited on the note he had against us. In our settlement these matters were to be adjusted. At a future time we intended to have an adjustment with regard to the business and all accounts. We (Pfeil Bros.) tried to have that settlement and adjustment and wanted to, but found we would have to have proceedings against him for adjustment. We never had any final settlement. We never had a final settlement with regard to the accounts nor agreed on how much we owed him or he owed us.”

At the close of the evidence in the case there appears in the record a stipulation as follows:

“It is further stipulated and agreed by and between the parties hereto that there never was any final accounting or settlement of the firm of Bridgman, Pfeil & Co.; that there was no balance struck of their partnership matters, and no promise by either of the partners, or any of the partners, to the other or others of any balance due.”

The only propositions of law held by the court as the law of the case were submitted by the plaintiff and are as follows:

“1. In actions of assumpsit, the defendants cannot set-off or recoup against the demand of the plaintiff, any claim against the plaintiff or the bankrupt whom he represents, arising out of a partnership formerly existing between the plaintiff, or the bankrupt whom he represents, and the defendants, until a final accounting and settlement of all the accounts of said partnership has been made, a balance struck and the plaintiff, or the bankrupt whom he represents, has promised to pay such balance to the defendants.”

“2. The court holds as a matter of law that one partner cannot maintain an action at law against his co-partner, either in an original suit or by way of set-off, upon any transaction relating to the partnership business, unless and until there has been a final accounting and settlement of all the partnership matters, a balance is struck and a promise to pay such balance.”

That the propositions so held by the court accurately state the law relating to partnership accounts is not controverted by defendants and is sustained by the authorities. Burns v. Nottingham, 60 Ill. 531; Chadsey v. Harrison, 11 Ill. 151; Davenport v. Gear, 2 Scam. 495.

The defendants cannot assert by way of set-off against the plaintiff a claim for the recovery of which they could not bring an independent action at law. Ditch v. Clinch, 136 Ill. 410.

The only item in defendants’ claim of set-off which is proper to be considered and applied as a credit upon the note is that of $1,017.69 for merchandise purchased by Bridgman from February, 1896, to May 21, 1907, for family supplies.

In the absence of any evidence of either an express or implied agreement by Bridgman to pay interest on said open- account and in view of the fact that the amount of said open- account should be credited upon the note either monthly or annually as the same accrued there is no basis for the claim of $569.84 for interest on said open account. The third, fourth, fifth and sixth items of set-off relate to claims together with interest thereon arising out of wholly unsettled partnership transactions and accounts not cognizable in this action.

The detailed statement of defendants’ first item of set-off being for family supplies sold to Bridgman does not show the items involved so that it is practicable to allow credit therefor upon the note in monthly installments, but the same may be properly allowed by an application as of March 1st of each year following March 1, 1895, the date of the note. While the evidence does not disclose the time when, or the basis upon which, interest was endorsed as paid upon said note from 1895 to 1905, the only reasonable conclusion to be arrived at is that the open store account as it ran from year to year was endorsed annually upon said note as in payment of the accrued interest thereon. The contention of the defendants that said endorsements of interest should be held to have been made up of the amount of the grocery stock taken by Bridgman on September 15, 1895, at the approximate amount of $320, and the sum of $612.98, being the approximate amount of the partnership notes and accounts received and collected by Bridgman, appears to be wholly untenable. It is altogether improbable that either of said amounts was utilized by Bridgman in making the endorsements of interest paid, because he would thus have been required to anticipate that no part of the principal of said note would be paid within a period of two years after its maturity, and because the amount realized by Bridgman from the collection of the partnership notes and accounts which were turned over to him was not ascertained and was not available for the purpose of making such endorsements at the time when they are claimed by the defendants to have been made.

Applying the open account for family supplies as a set-off against said note by crediting the same as of March 1 of each year during its continuance, and giving the defendants credit for the payments on said note as heretofore indicated of $208 on November 11, 1907, and $201.86 on December 26,1907, there was due on said note from the defendants at the time of the hearing and judgment in the court below $1,282.95, for which amount there should have been a finding and judgment in said court in favor of the plaintiff and against the defendants.

The suggestion made on behalf of defendants that such a finding against' them in this case will necessarily work a great hardship and injustice, loses its force when it appears, as it must, that the result is arrived at by the application to the undisputed facts of firmly established principles of law and that such result could have been easily avoided by the defendants, if, instead of sleeping upon their rights, they had invoked the aid of the proper forum in apt time.

A jury having been waived below and the cause by agreement tried by the court, such waiver of trial by jury extends to the review of the judgment in this court so as to enable this court to determine the issue of fact and enter final judgment. Manistee Lumb. Co. v. Union Nat. Bank, 143 Ill. 490; Everts v. Lawther, 165 Ill. 487; Osgood v. Skinner, 186 Ill. 491; Iroquois v. Elplricke, 200 Ill. 411.

The judgment of the Circuit Court will be reversed and final judgment entered in this court in favor of the plaintiff and against the defendants for $1,282.95 as of the date of October 6, 1909, together with costs of suit.

Reversed and judgment here.


text:
    City of Macomb, Defendant in Error, v. Arthur Jones, Plaintiff in Error.

      Ordinances—validity of, providing for protection of pavements. Held, that the ordinance set forth in this opinion providing for the use of “sound strong planks” was not so indefinite as to render it invalid, that such ordinance was within the specific power granted to municipalities to enact and that it did not allow an illegal latitude of penalization.
    Action commenced before justice of the peace. Error to the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 18, 1910.
    Flack & Lawyer and Theodore B. Switzer, for plaintiff in error.
    Wallace A. Walker, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

In a suit originally instituted before a justice of the peace by the city of Macomb against Arthur Jones to recover a fine for the violation by said defendant of an ordinance of said city, the defendant was fined $10 and adjudged to pay the costs of the suit. Upon the appeal of the defendant to the Circuit Court of McDonough county the case was tried by the court without a jury, and resulted in a like finding and judgment against the defendant, to reverse which judgment he prosecutes this writ of error.

Sections one and two of an ordinance of the city of Macomb entitled "An Ordinance for the Protection of Paved Streets,” are as follows:

,"Be it ordained by the City Council of the city of Macomb:

Section 1. That it shall be unlawful for any person or persons either by himself, agent, employee, or employees, to run across, along or upon any of the paved streets in the city of Macomb, any traction engine, without using sound, strong planks, two of said planks to be kept continuously under the wheels of said engine while upon the pavement in such manner as to keep the wheels from touching said pavement.

“Section 2. For every violation of section one of this ordinance, such person or persons shall be fined not less than ten dollars nor more than one hundred dollars, and shall be liable for all damages resulting to said pavement by reason of the failure to comply with the requirements of said section one, together with the costs of prosecution.”

It was stipulated upon the trial that if said ordinance was valid the plaintiff in error was guilty of a violation thereof, and that said suit was brought solely for the purpose of recovering a fine thereunder. By the propositions of law submitted by the defendant in error it was held by the court that section one of said ordinance was sufficiently definite and certain and was valid, and that said ordinance was a valid ordinance for the purpose of recovering a fine thereunder.

It is first urged that the words “sound, strong planks,” employed in section one of the ordinance are so uncertain, indefinite and ambiguous with respect to the means required to be employed to keep the wheels of a traction engine from touching the pavement, as to render the ordinance void, and it is said this result could have been avoided by specifically defining the words, by specifying the character of the planks to be used, such as oak, 'maple or pine, and by fixing the minimum dimension of said planks. The words in question are in such common use and their meaning is so well understood by persons having even a most limited knowledge of the English language that so far as we are advised it has never been deemed necessary to call upon the courts to define them. Lexicographers uniformly define the words as they are manifestly here used, substantially as follows: Sound, as whole, unimpaired, free from imperfection, defect or decay; Strong, as firm, solid, compact, not easily broken; Plank, as a broad piece of sawed timber thicker than a board. The unmistakable sense in which said words are used, coupled with the purpose sought to be attained or the injury sought to be avoided by the use of “sound, strong planks” renders it impossible to misunderstand the duty imposed by said ordinance upon persons operating traction engines on paved streets.

The only case cited and relied upon by plaintiff in error in support of his contention that section one of the ordinance in question is void for uncertainty is that of State v. Clarke, 69 Conn. 371, where it was held that an ordinance declaring it to be a nuisance to erect and maintain any awning except the same be upon a suitable frame and attached entirely to a building is void for uncertainty in supplying no test by which the average man may, with due care, know whether he is erecting or using his awning in such manner as not to commit a crime. We do not agree with counsel for plaintiff in error that thé word “suitable” as used in the ordinance involved in the case cited is the precise equivalent of the words “sound” and “strong” in the connection in which they are used in the ordinance in the case at bar. In the case cited it is said: “The ordinance requires the awning to be ‘upon a suitable frame’ and the ordinance furnishes no criterion by which the question of suitability can possibly be determined. It does not define the word ‘suitable’ as here used, and the law does not define it; indeed, when it is thus used it is incapable of any general or legal definition: Batters v. Dunning, 49 Conn. 479; Smith’s Appeal, 65 Conn. 135. Its use, of necessity, implies the judgment of some tribunal or person who is to determine the question of suitability, and yet neither the charter nor the ordinances of the city empower any person or tribunal to exercise such judgment. This term ‘suitable,’ as here used, seems altogether too vague and indefinite to serve as a basis of an ordinance so highly penal in its consequences as this one.” Conceding, which we are not disposed to do, the correctness of the conclusion arrived at in the Connecticut case, the case is, for the reasons heretofore stated by us, clearly distinguishable from the case at bar. We are of the opinion that section one of the ordinance here involved is not void for uncertainty.

It is next insisted that the ordinance must be held invalid because it does not come within the class of ordinances which a municipality is empowered to enact under its general police powers to preserve the health, morals or safety of the community, as such police powers are sometimes defined. Without determining whether the ordinance' in question may be upheld as having been enacted by the municipality in pursuance to its general police powers as thus defined, it is sufficient to say that the enactment of such an ordinance may be justified as being among the express powers conferred by the legislature upon municipalities in this state. Paragraph 15 of section 1 of article 5 of the act entitled “Cities and Villages,” (Hurd’s Stat. 1909, 342) provides, that the city council in cities and president and board of trustees.in villages shall have the power, “to prevent injury to any street, avenue, alley or public ground.” Certainly under this provision of the general law defendant in error was fully authorized to enact the ordinance in question. The definition adopted by plaintiff in error of the general police powers inherent in a municipality is however too narrow. In City of Chicago v. Gunning System, 214 Ill. 628, it was held that anything which is hurtful to the public interest is subject to the police power and may be restrained or prohibited in the exercise of such power and that all rights whether tenable or untenable are held subject to such power.

It is next contended, as we understand the statement of plaintiff in error, that section two of the ordinance is invalid for the reason that the penalty imposed thereby is indivisible and might exceed the amount fixed by the statute as a limit beyond which the city could not go. Counsel for plaintiff in error say: “It makes no difference that this fine is only ten dollars. The question is how much could a court of competent jurisdiction fine a defendant under that ordinance if it is a valid ordinance.” If we understand this statement of counsel and the argument which follows it is predicated upon the theory that the aggregate amount recovered as a fine and for damages resulting to the pavement might exceed the jurisdiction of a justice of the peace. The theory advanced is not applicable to the facts in the case. The maximum amount of the fine fixed by the ordinance is $100. It was stipulated that the action was brought for a recovery of a fine only and the amount of fine imposed was $10. The amount involved was therefore within the jurisdiction of a justice of the peace. The amount recoverable as a fine and the amount recoverable as damages for injury to the pavement, are wholly separate and distinct matters, not necessarily, and, perhaps, not properly, recoverable in one action or in the same forum. But if the provision in section two which authorized a recovery of damages for injury to the pavement should be held invalid it would not invalidate the entire ordinance because such provision is wholly separate and distinct from the provision authorizing the recovery of a fine and the former provision may be eliminated and what remains contains all the essentials of a'complete ordinance. Kettering v. City of Jacksonville, 50 Ill. 39; Harbaugh v. City of Monmouth, 74 Ill. 367; Poyer v. Village of Des Plaines, 123 Ill. 111.

. The other questions raised by plaintiff in error are purely academic upon this record and do not merit discussion.

There is no error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


author: Mr. Presiding Justice Baume

text:
    C. E. Miller, Appellee, v. J. A. Walker, Appellant.
    1. Pleading—when recovery cannot be had under common counts. There can be no recovery under the common counts where the contract sued upon is unexecuted.
    2. Damages-—for breach of contract for exchange of properties. Notwithstanding a tender may have been waived, in order to recover substantial damages for breach of a contract to make a trade of real property, it is incumbent upon the part of the plaintiff to make a tender or otherwise to show that he was ready, able and willing to perform the agreement on his part.
    3. Measure of damages—in action for breach of contract for exchange of properties. The true measure of damages in such a-case is the difference between the fair cash market values of the properties agreed to be exchanged.
    Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbriok, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed October 18, 1910.
    Ray & Dobbins and Smith & Iungerich, for appellant.
    Henry I. Green and John H. Chadwick, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The plaintiff recovered a verdict and judgment against the defendant in the Circuit Court of Champaign county for $505, as damages alleged to have been occasioned by the failure of the defendant to comply with the provisions of a written contract for the exchange of certain properties, and the defendant prosecutes this appeal to reverse, said judgment.

The contract which bears date November 20, 1908, provides, in substance, that the plaintiff should sell and deliver to the defendant certain property known as the Newman hotel, together with certain furniture and fixtures therein in Newman, Illinois, for the consideration of $9,000, subject to an encumbrance of $2,500 with accrued interest; that the defendant should sell and deliver to the plaintiff certain real estate, together with a stock of hardware and agricultural implements at Pesotum, Illinois, for the consideration of $8,125; that $875, being the difference between the considerations named, should be paid by the plaintiff to the defendant in the event that the said stock of hardware and agricultural implements should invoice $3,500 or over, and in case said invoice shauld fall short of said amount, the amount of such shortage should be deducted from said sum of $875. Said contract contains a further provision, as follows:

“It is further understood that this deal is being consummated on the basis of the usual business customs, and warrantee deeds and merchantable abstracts to govern, the same to be closed at as early date as abstracts can be brought down and proper transfer and invoice made.”

The declaration contains a special count upon the contract, together with the common counts. The special count alleges a tender by the plaintiff to the defendant of a good and sufficient warranty deed to the premises agreed to be conveyed, together with possession of the property agreed to be transferred, and that plaintiff demanded of the defendant that he turn over to the plaintiff the possession of the property and convey to the plaintiff the premises as agreed; that defendant refused to carry out said agreement according to the terms and conditions thereof and that plaintiff was ready, able and willing to carry out and perform all the terms of said agreement on his part. There can be no recovery under the common counts because the contract sued upon is unexecuted. Brand v. Henderson, 107 Ill. 141; Parmly v. Farrar, 169 Ill. 606.

Upon the trial the case was submitted to the jury upon the evidence offered on behalf of the plaintiff, the defendant offering no evidence whatever, and the evidence so offered by the plaintiff discloses a state of facts substantially as follows: Upon the execution of the contract the plaintiff employed one Belden to invoice the stock of hardware and agricultural implements, which invoice, fixing the value of said stock at from .$4,300 to $4,600, was completed on November 24, and on the same day .the plaintiff went to Pesotum having with him the deed purporting to convey to the defendant the property at Newman. Shortly after his arrival in Pesotum, plaintiff, in the presence of the defendant, was informed by the latter’s wife, “that she did not want to sign the deed: that she was tired of moving around and wouldn’t sign the deed anyway.' ’ Plaintiff then .told the defendant that he was “prepared to deliver the goods” but would have to give a check or mortgage on the property until he could go home and get the money. Defendant objected to taking plaintiff’s check or a mortgage on the property, and told the plaintiff to hold the papers until his return when the defendant’s wife might be in better spirits. Plaintiff then went to his home in Newman, where he claims to have obtained $875 in cash, and returned to Pesotum on November 27, when he saw the defendant in the latter’s store and was informed that nothing had been done, but was told he could go down and talk to Mrs. Walker. Plaintiff then saw Mrs. Walker and informed the defendant that she objected strongly at first but finally talked favorably, and advised defendant to say nothing to her for a few days when she might be all right. Plaintiff then did nothing with reference to the money, but returned to his home upon being informed by the defendant that the business could not be concluded. On or about December 25, following, plaintiff again went to Pesotum having with him certain deeds and papers together with the $875 in cash, which he tendered to the defendant and demanded a compliance by the latter with the terms of the agreement, but the defendant refused and ordered the plaintiff out of his premises in language more forcible than elegant. Plaintiff testified that upon the occasion of his visit to Pesotum on November 24, the abstract of title to the property in Newman was in the possession of the person who held the mortgage on said property; that he thereafter procured said abstract and gave it to one Heines who returned it to him in January or February following. The said abstract of title was not offered in evidence, and it does not appear from the evidence in the record that the plaintiff had or could procure any title whatever to the property in Newman which he agreed to sell and convey to the defendant. The relation borne by Heines to the transaction in question does not clearly appear, but it is manifest that he was not the agent of the defendant.

While there is evidence in the record tending to show that the fair cash market value, free from encumbrance, of the property in Newman was from $6,000 to $6,500, there is no competent evidence in the record tending to show the fair cash market value of the property in Pesotum, which the defendant agreed to sell and convey to the plaintiff. In this state of the record a recovery by the plaintiff of substantial damages was unwarranted. While an unqualified refusal by the defendant to comply with the terms of the agreement on his part would operate to waive a tender to him by the plaintiff of a deed or deeds and bill of sale of the property in Newman, together with an abstract of title to the real estate and the cash payment of $875, it was nevertheless incumbent upon the plaintiff, in order to warrant a recovery of substantial damages, to show that he was ready, able and willing to perform the agreement on his part as alleged in his declaration. Scott v. Beach, 172 Ill. 273; Osgood v. Skinner, 211 Ill. 229.

By the 1st, 2nd, 3rd and 6th instructions given at his instance the plaintiff .assumed the burden of proving that he was ready, able and willing to perform the contract on his part before he should be entitled to a •recovery of damages for its non-performance "by defendant.

The true measure of damages in this case was'the difference between the fair cash market value of the properties agreed to be exchanged. Plummer v. Rigdon, 78 Ill. 222; Warren v. Chandler, 98 Iowa 237.

The court did not err in admitting in evidence as a part of the res gestae the statements made by the wife of the defendant in the latter’s presence relative to her refusal to sign a deed.

Because the verdict is not supported by the evidence the judgment will be reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Philbrick took no part in the consideration of this case.