author: Conger, J.

text:
    E. M. Bradley v. Daniel C. Linn et al.
    1. Partner executing notes. — The law implies authority of one partner to execute notes, or other commercial paper, only where, from the n uture of the partnership, the authority is necessary to the successful carrying on of the business engaged in, or when its exercise is according to usage and custom in partnership enterprises of the like character.
    2. Taking promissory note after maturity. — A person taking a note after its maturity receives it subject to all equities existing between former parties to the instrument whether apparent on the note or not.
    Appeal from the Circuit Court of Schuyler county; the Hon. J. 0. Bagby, Judge, presiding.
    Opinion filed February 25, 1886.
    Appellees Linn and Jacoha with Farnell and Ellet entered into a partnership “ for the purpose of manufacturing pottery ware and all things thereto belonging.”
    The written article after stating the details, uses the following language in reference to Ellet: “ Louis E. Ellet, on his part, agrees to manage and superintend the erection of buildings and kiln, to defray one third of the expenses, to use all his energy, skill and labor in making, burning and getting ready for market and marketing the pottery ware.” The firm, under the articles, did business under the name of the “ Frederick Stoneware Company,” and was known as such. Ellet was the business manager and did the business of the firm.
    On the 18th day of December, 1883, Farnell made an arrangement with Ellet, which was unknown to the other two partners, to receive from Ellet a partnership note for certain advances he had made to the firm, beyond, as he claimed, his true proportion, and on that day, Ellet executed and delivered to Farnell a note for $110.45, due ninety days after date, signing the same “ Frederick Stoneware Co., by L. R. Ellet, Pres.”
    This note, long after its maturity, viz., December 3, 1884, was assigned by Farnell to appellant, who brought suit upon it before a justice in the name of Farnell for appellant’s use, and against Famed, Linn, Jacoba and Ellet. Service was had upon Linn and Jacoba.
    On appeal to the circuit court the summons was amended by striking out “Farnell for the use of,” leaving the suit in name of appellant as plaintiff.
    Linn and Jacoba tiled in the circuit court their affidavit denying that they executed the note or authorized it to be done. Upon the trial in the circuit court judgment was rendered against appellant for costs.
    Mr. E. J. Pemberton and Mr. L. A. Jarman, for appellant.
    Mr. W. L. Vandeventer, and Messrs. Montgomery «fe Glass, for appellees.
   Conger, J.

Appellant is not entitled to recover for two reasons: First, there was no authority in Ellet to execute a partnership note, either in the articles of copartnership or the character of the business they were carrying on.

It is well settled that the law implies authority of one partner to execute notes, or other commercial paper, only where, from the nature of the partnership, the authority is necessary to .the successful carrying on of the business engaged in, or when its exercise is according to usage and custom in partnership enterprises of the like character. Gray v. Waul, 18 Ill. 32.

If there be a copartnership in a matter of business not requiring the execution of negotiable paper as the proper, usual and convenient mode of executing it, the copartners will not be impliedly bound by the act of one, but must give him express authority.” 1 Daniel on Meg. Inst., Sec. 358.

Chitty on Bills, 58, uses the following language: The partnership must be in a trade or concern to which the issuing or transfer of bills is necessary or usual.”

We see nothing in the character of the business carried on by these parties making it necessary, as a part of the business, to execute commercial paper. It might occasionally be necessary to purchase machinery or supplies on credit, but no more so than in mining or gaslight companies or copartnerships to carry on the business of farming, in all of which cases the power has been held not to exist. In all commercial or other copartnerships where buying and selling is the principal business of the firm, it can not be successfully carried on without the power existing in each partner to pledge the credit of his firm, and in such cases the law properly implies it.

Again, should there be a doubt upon the‘question of Ellet’s authority to execute a firm note to a stranger, there can be none when such note was issued to Farnell, who knew that Ellet had no such authority, and in his hands it very clearly would not bind the other member of the firm, and appellant, having taken the note after its maturity, stands in no better position.

“A person taking a note after its maturity receives it subject to all equities existing between former parties to the instrument, whether they are, or not, apparent on the note. It is dishonored by not being taken up at its maturity. It comes to him tainted with suspicion and he is put upon inquiry as to the rights of the former holders, and the real and not the apparent liability of the makers. He takes it precisely as it was held by those from whom- he acquires his title. The maxim caveat em/ptor applies in such a case.” Lord et al. v. Favorite, 29 Ill. 149; Sec. 11, Chap. 98, Rev. Statutes; Jay v. Reed, 56 Ill. 130.

We do not deem it necessary to express an opinion upon the question urged upon our attention by counsel as to the power of. one copartner to execute a partnership note to another copartner, as we think upon the general principles referred to, there was no power in Ellet to bind the firm by the execution of the note in question; while it may be the circuit court reached its conclusion by a different process and for other reasons than those we have endeavored to assign, we think the judgment in favor of appellees for costs was proper and must therefore be sustained.

The judgment of the circuit court will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Lawrence Looby et al. v. William D. Austin et al.
    1. Highway commissioners — Jurisdiction.—It is the petition as filed that gives jurisdiction, and determines the character of the road applied for, and the mere fact that in the proceedings it is afterward designated as a private road, can neither oust the commissioners of jurisdiction nor destroy the force of the original petition.
    2. Record — Impeaching by parol testimony. — The record of the county commissioners must speak for itself, and can not be contradicted in a collateral proceeding by parol testimony.
    Appeal from the Circuit Court of Menard county; the H>n. C. Epler, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. E. Lynch and Mr. T. N. Mehan, for appellants.
    Mr. T. W. McNeely, Mr. S. H. Blane and Mr. N. W. Bronson, for appellees.
   Conger, J.

This was an action of trespass, brought against Austin, supervisor of roads, and the county- commissioners of Menard county. The declaration alleges that said appellees had unlawfully thrown down the fence of appellants, in consequence of which their crops were destroyed. The defense was that a private and public road had been established at the place where the alleged trespass ivas committed, and that the fence was torn down by Austin under and by virtue of an order of the county commissioners to open the road for use. It is objected by the appellants that this defense was not made out, for two reasons :

First, while the original petition for the road asks for a public and private road, it is afterward, in the record and proceedings of the county commissioners, called a private road.

We think there is nothing in this objection. It is the petition, as filed, that gives jurisdiction and determines the character of the road applied for, and the mere fact that in the proceedings it is afterward designated as a private road, can neither oust the commissioners of jurisdiction nor destroy the force of the original petition.

The second objection is, that on June 3, 1884, the day the fence was thrown down, the plat of the survey of the road had not been recorded.

The record of the county commissioners, introduced in evidence at the March term, 1883, after reciting the report of the commissioners theretofore appointed, etc., “and present their report thereon, together with the plat and report of survey of John Tice, surveyor, and the board having examined said report, and being fully advised concerning the same, it is ordered that said report be and it is hereby approved, and that the same be entered of record in the words and figures following, to wit: (For commissioners’ report see pages 6 and 7.) It is therefore ordered by the board that the above described road be, and it is hereby confirmed and established as set forth in the plat and report of survey of John Tice, surveyor.”

The appellants then called the deputy county clerk and propounded to him this question: “ When was the plat which has been offered in evidence, found on -page 102 of the record, etc., actually recorded? ” To which question an objection was sustained, and this is relied upon as error.

We think the question was clearly improper, and should not have been allowed. Whether it was necessary for the survey and plat to be recorded before the final order, we do not think it necessary to determine, as the record shows it was so recorded ; and in all collateral proceedings the record is a verity and can not be attacked by parol evidence. It is contended that, as the plat could properly have been recorded in a plat book, especially designed for such purpose, in such case it would be proper to show by parol when it was actually transcribed into the boob, and in such case there would be no attempt to contradict a record. This perhaps might be true if there was nothing in the record to show when the plat was recorded; but here the record does purport to show when it was made, and in such cases the law is well settled that' the record must speak for itself, and can not be contradicted in a collateral proceeding by parol testimony.

We think the court committed no error in excluding the question and in refusing an instruction based upon the same theory of the law.

Finding no error in the record, the judgment will be affirmed.

Affirmed.


text:
    Lydia Weakly v. Northwestern Benevolent and Mutual Aid Association of Illinois.
    Insurance — Notice op assessment. — The court is of opinion that under section five of the by-laws of the Mutual Aid Association, the duty of the company was complete upon mailing the assessment, and that the failure of such assessment to reach the assured by reason of its miscarriage in the mail, or the absence of the assured, would not excuse non-payment of the assessment within the prescribed time.
    Error to the Circuit Court of McLean county; the Hon, O. T. Beeves, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. Tipton & Beaver, for plaintiff in error.
    Messrs. McNulta & Weldon and Mr. Hamilton Spencer, for defendant in error.
   Conger, J.

This was an action of assumpsit, brought by plaintiff in error against defendant in error, on a policy of insurance, payable to plaintiff in error, issued upon the life of her husband, Edward B. Weakly.

To the declaration were filed two special pleas, setting forth, section five of the by-laws of the association, ivhich is as follows *.

Whenever satisfactory evidence is received at the home office of the death of a member, the secretary shall cause a notice to be sent to the last known postoffice address of every member, to contribute one dollar to the relief fund ; which notice shall be in the form of assessment and shall give the number of the certificate, date of death, and the amount required for the fulfillment of its provisions; beneficiaries may be changed without charge by consent" of the directors. Every member failing to pay his assessment within thirty days from the date of such assessment, shall stand suspended from all benefits and privileges of this association, and shall not again become a member, except upon the “ term of a new member,” and averring that on the 20th day of February, 1884, the association at the home office in Bloomington, Illinois, received notice and satisfactory evidence of the death of two of its members; that the secretary of the association on that day made an assessment upon Edward B. Weakly, mailed it at the office in Bloomington, with proper pre-payment of postage thereon, addressed to said Weakly at his last known postoffice address, to wit, Decatur, Illinois; that Weakly failed to pay said assessment in thirty days from that date, whereupon said Weakly was suspended from membership, and so remained until his death, which occurred on the 12th of Hay, 1884.

To this plea a demurrer was interposed, which, being overruled by the court, judgment was rendered against plaintiff in error for costs.

The controversy arises upon the construction of said section five of the by-laws. Plaintiff in er ror insists that the assured was entitled to actual notice of the assessment, and that the thirty days during which he was required to make payment of an assessment began upon the actual receipt of the notice, and therefore the pleas are defective in not averring such actual notice.

Defendant in error contends that its duty to ihe assured was fully performed upon its placing in .the postoffice at Bloomington the notice with postage prepaid and properly addressed to the last known postoffice address of the assured.

The majority of the court are of opinion that this case is to be distinguished from that of Protection Life Ins. Co. v. Palmer, 81 Ill. 88, in this, that in the case cited the payment was required to be made in. thirty days from the date of notice, which the Supreme Court seem to hold means from the time when such notice would, in due course of mail, have reached its destination, while in the present case the thirty days begin to run from the date of the assessment.

In the Palmer case, where the policy is declared by its terms to be forfeited unless payment is made within thirty days from the date of notice, it is not unreasonable to hold that these words “date of notice,” refer to the time when the knowledge of the facts contained in the letter reach the assured, for the word notice has a double meaning, and is often used to signify either the paper or other instrumentality used to give the information, or the information itself.

No such ambiguity can arise by the use of the word assessment. It can not refer to two distinct periods.

The date of the assessment means necessarily the time when it is made out by the secretary and mailed to the assured in accordance with the terms of section five of the by-laws.

If this is a proper construction of said section five, it follows that the duty of the company was "complete upon mailing the assessment as set forth in its special pleas, and that the failure of such assessment to reach the assured by reason of its miscarriage in the mail, or the absence of the assured, would not excuse non-payment of the assessment within the prescribed time. Greely v. Iowa St. Ins. Co., 50 Iowa, 56; May on Insurance, Sec. 562.

These pleas presenting a complete defense, there was no error in overruling the demurrer, and the judgment of the circuit court is therefore affirmed.

Affirmed.


text:
    First National Bank of Rushville v. Nathaniel G. Slack.
    1. Assignment on accounts — Payment to assignor. — Where a firm, by a bill of sale, conveyed to a bank a large amount of personal property, and by the same instrument assigned and delivered to the bank a number of accounts against various parsons, and a remittance being sent to appellee, a member of the firm, to pay one of the assigned accounts, he sought the advice of hia attorney, and in accordance therewith pocketed the money, and the bank demanded the money and upon a refusal brought this suit, held, that appellee is liable.
    2. Advice oe counsel — When admissible. — The advice of counsel is sometimes admitted in evidence to show the good faith of a party ignorant of the law, but only in doubtful cases.
    Appeal from the Circuit Court of Schuyler county; the Hon. C. J. Sohopield, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. Montgomery & Glass, for appellant.
    Mr. E. J. Pemberton and Mr. L. A. Jarman, for appellee.
   Conger, J.

On the 6th day of December, 1883, Nathaniel G. Slack and Albert L. Garitt, composing the firm of Slack & Garitt, being indebted to the appellant in a large sum of money, executed and delivered to the said bank a bill of sale, by which they conveyed a large amount of personal property, and by the same instrument bargained, sold, assigned and delivered to the bank a number of accounts against various persons, among which was an account for $2,701.53 upon Joseph Horne & Co., of Pittsburg, Pa.

On June 10, 1881, Joseph Horne & Co. sent to Slack & Garitt, in part payment of their indebtedness, a draft on the Union National Bank of Pittsburg, Pa., for $580.90 payaFe to the order of Slack & Garitt, which draft appellee, Nathaniel G. Slack, received through the mail some time in June, 1881, and on the day of its receipt, he went, as he says in his evidence, “ to E. J. Pemberton, my attorney, and asked him what I had host do with it. He told me to go to so me other town, cash the draft, and put the money in my pocket; and I did so.” Pemberton, the attorney, says upon the subject: cC Some time in June, 1881, defendant, Slack, came to me for advice as his attorney, as to what he should do with a draft he had received from Jos. Horne & Co. of Pittsburg, Pa. I suggested or advised him that as the First National Bank, the plaintiff in this case, was the only bank in Rushville, to go to some other town to cash the draft.” Slack went to Lewis-ton, cashed the draft, received the money, and in conformity with the peculiar advice of his attorney, did put the money in his pocket, where, so far as appellant is concerned, it remains to this day. Appellant shortly afterward learning these facts made a demand upon appellee for the money, which proved unavailing, and hence this suit.

The jury found for appellee, and the court refusing to award a new trial, appellant brings the record to this court, and asks a reversal.

It was clearly error in the circuit court not to grant a new trial.

When Slack had sold, assigned and delivered this account to the bank, he had no more right to the money sent to pay it than he would to appropriate to his own use any of its oth er property that should accidentally fall into his hands. To do so under the circumstances shown by the evidence sustains the charge in the declaration, that “ the defendant willfully and maliciously defrauded the plaintiff.”

The admission of Pemberton’s testimony was improper. Tire advice of counsel is sometimes admitted in evidence to show the good faith of a party ignorant of the law, in donbtful cases. But in this case there could be no doubt as to me duty of Slack.

He had obtained his neighbor’s property through the mistake of Horne & Co., who were doubtless ignorant of the transfer of the account, and it only required an application of the plainest principles of common honesty to know that it was his duty to hand it over to the true owner. ,

In such a case there is no room for legal advice.

The judgment of the circuit court will be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    The People, etc., v. Mollie Skinner et al.
    A writ of error will not lie to review the finding of the court helow upon a writ of habeas corpus. (Case to determine custody of ward.)
    Error to the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. W. E. Gapen, for plaintiff in error.
    Messrs. Blades & Neville, for defendants in error;
    cited Hammond v. People, 32 Ill. 446; Ex parte Thompson, 93 Ill. 89.
   Conger, J.

This is a writ of error seeking to review the finding of the court below, upon a writ of habeas eorjms, and the only question we shall notice is whether a writ of- error lies in such a case.

The question is settled in this State, so far, at least, as appertains to a case where a person in charge of an officer of the law is applying for release, and it is held that it will not lie. Hammond v. The People, 32 Ill. 446; Ex parte Thompson, 93 Ill. 89.

Some courts, however, have made a distinction between such cases and those where parents and others have used the writ for the purpose of determining the custody of minor children. In Mercien v. The People, 25 Wend. 99, it is held in such proceedings that the principles of public policy requiring the application of the doctrine of estoppel to judicial proceedings are as impartially demanded in the case of private individuals, contesting private rights under the form of proceedings in habeas corpus, as if the litigation were conducted in any other form; but the weight of authority seems to be against this doctrine.

This great constitutional writ runs in the name of the sovereign power, and is intendedjto obtain immediate relief from illegal confinement. To accomplish this end it must necessarily be vigorous and summary. If it be subjected to the delays incident to appeals and writs of error, it loses that life and energy so essential in determining all questions involving the liberty of the citizen. If the party in confinement can appeal, the same right must be extended to those having him in custody; hence, one unlawfully restrained of his liberty, instead of securing it speedily and without delay, is compelled to remain a prisoner and await the law’s delay.

Again, under our practice the writ may be issued by a judge or master in vacation, and a hearing and decision had out of term time. In such case the judgment is not of a court, but of a judge, and it can not be contended that an appeal or writ of error would lie from the order of a judgepn vacation, in the absence of a statutory provision.

The remedy, the judgment and its consequences are the same in either case, and to suppose the law intends the right of appeal to depend upon the mere accident of the final decisión happening to be made by the judge when sitting as a court during term time, or by the same judge at chambers, would be absurd. State v. Malone et al., 3 Sneed, 413.

We are of opinion that a writ of error will not lie in this case, and therefore it will be dismissed.

Writ of error dismissed.


author: Pleasants, J.

text:
    Robert H. McCormick et al. v. John W. Nichols et al.
    1. Gambling contracts — Application op payments. — In a suit for balance clue upon a series of transactions, some of which w re gambling contracts and void under the statute, where the payments made amount to moré than all the items that were legal or recoverable, the defendants would be entitled to have their payments applied first to the charges that were legitimate, and to repudiate so much of the balance as remained unpaid.
    2. Sams — Future delivery. — A contract for future delivery does not fall under the condemnation of the statute, unless the parties on both sides intend it to be settled by payment of the difference between the price agreed on and the market value at the time appointed for delivery, without actual delivery.
    3. Same — Agent and principal. — A contract made by an agent, if a gambling one, is absolutely void as against the principal, and can not be v alidated by any form of authorization or ratification; and if not a gam. bling contract, and yet not authorized because in deparlnre from the order given, the principal will not be bound by a ratification unless with knowledge or information of such departure.
    Appeal from the Circuit Court of DeWitt county; the Hon. Lyman Laoey, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. Moore & Warner, for appellants;
    as to “options,” cited Logan v. Musick, 81 Ill. 415; Pixley v. Boynton, 79 Ill. 351; Cole v. Milmine, 88 Ill. 349; Wolcott v. Health, 78 Ill. 433; Corbett v. Underwood, 83 Ill. 324; Porter v. Viets, 1 Biss. 177; Clark v. Foss, 7 Biss. 541; Gilbert v. Gaugar, 8 Biss. 214.
    Mr. George B. Graham, for appellees.
   Pleasants, J.

This was an action of assumpsit on the common counts, by appellants, who were commission merchants at Chicago, to recover a balance of $643.69, claimed to he due for commissions and advances to pay losses on deals made by thorn for and at the request of appellees, on the Board of Trade. Besides the general issue two special pleas were filed, setting up that the consideration for the promises declared on was money won by plaintiffs from defendants by gaming, to wit, by baying and selling deals and options in grain which were to be settled upon differences alone, and wherein neither party waste deliver or receive any article so bought or sold, of. which plaintiff had notice; wherefore, by force of the statute, such promises were void. Issues were joined on replications traversing the alleged consideration, and the trial resulted in a verdict for defendants; upon which, after motion for anew trial overruled, judgment was entered and the plaintiffs appealed.

In the spring of 1883 appellees were partners in the hardware and grain business at Parnell, a small railroad station in the county of DeWitt. They bought of farmers in the neighborhood and shipped to appellants for sale by them at Chicago. After a short course of such dealing they gave orders to appellees from time to time from May 31st to October following, for purchases and sales on the Board of Trade unconnected with actual shipments; and it is in reference to the charges upon these transactions that this controversy has arisen.

It appears that the account between the parties, as kept by appellants, was never closed — the balance ranging in round numbers from §500 to §1,000, being always against appellees— and that the credits were all entered as applying generally, no specific direction in relation to them having been given.

Appellees claim that the balance sued for is less than the charges upon transactions that were void, as alleged in the special pleas; in other words, that the payments made amount to more than all the items that were legal or recoverable. In such case they would be entitled to have their payments applied first to the charges that were legitimate, and repudiate so much of the balance as remains unpaid.

The charges for commissions and advances on the deal of May 31st, being the first of the series alleged to be tainted, exceed the sum in controversy by over §200. If, then, that was a gambling transaction, the verdict was right, whatever may have been the character of the others.

Mr. Hichols, one of the appellees, testified in relation to the inception of that deal, that, being on that day in Chicago, and for the first time on the floor of the Board of Trade, he there met and had a conversation with Mr. Hade, a salesman of appellants, which he related as follows: “ He wanted to know why we had not been trading with them. He was an old acquaintance of ours before he went in with that firm. He told us that we ought to trade with them; that McCormick was one of the reaper company, and that they were all well off and well fixed to take care of a customer in case they needed it, and anyhow for us to take a scalp to make expenses. My understanding of a scalp is, it is a trade for the day, and sold out that evening or the next day; it is a short trade. Q. Does that mean or intend the delivery of grain, or a settlement on differences ? A. It is a settlement on differences. He was saying he had a very good opinion of wheat; that ho had information that wheat was in'a bad condition and was going up, and if we would take a five or ten thousand bushel wheat sc Ip that on that we would make our expenses, and that perhaps we would hold on a day or two and it would close at any rate before we went home; but we might let it run longer if we saw fit. We told him to go and buy ten thousand bushels for us.”

Mr. Horth, his partner, corroborated him, and both say it was their understanding and intention that the deal was to be settled upon differences alone. Mr. Ludington testified: “ I have been in the grain business ten or twelve years. As I understand it, a scalp is where we buy in the morning and close it out that night; it is a short deal, a quick sale and a settlement on differences. If a man goes in and buys at a regular sale with the intention of cleaning out that day, or within a day or so, I should consider that a scalp; but if he buys for May and holds on until the May delivery, that would not be a scalp; a short deal is what I call a scalp.”

Mr. Hade was not called as a witness, nor was any attempt made to contradict this testimony of appellees, or to show a different understanding of the term “scalp,” though Mr. Beebe himself and several other .members of the Board of Trade testified on behalf of appellants.

The deal was made on May 31st, but not closed out until June 18th, when appellants sold, without orders, at a loss of $850.

A contract for future delivery does not fall under condemnation of the statute unless the parties on both sides intend it to be settled by payment of the difference between the price agreed on and the market value at the time appointed for delivery, without actual delivery; and in reference to the one mentioned, as also to all the others made, appellants say there is no evidence of such intention on the part of the other parties.

It may be true that nothing in this record 'would be competent evidence of it as against them. But it was not so offered, and its competency as such is not the question before us. Was it competent — did it raise a presumption — as against appellants, which they were" called on to rebut? As between themselves and the other contracting parties they were the purchasers ; but as to appellees, they were their agents or brokers, and appellees the real purchasers. If, as such agents, they were directed to make the deal to be settled upon such difference alone, and did make the deal, the presumption would be, as against them, that they made it as directed; that is, to ba so settled. Beveridge v. Hewitt, 8 Bradwell, 482-3.

And if they did not so make it, how can they claim’ that what they did and advanced was at the instance and request of appellees, as was required in order to establish a cause of action against the plea of the general issue? The unlawfulness of the deal they were ordered to make would have justified their declining, even after agreeing, to make it; but such an order would not authorize'them to make one of a different character, and there is no evidence of its ratification by appellees with knowledge or information that it was of a different character from that ordered.

Whatever, then, may have been the intention of the parties respecting the mode of settlement, the evidence referred to was competent and cogent, either under the general issue or under the special pleas, and if upon this evidence the jury found the arrangement with Hade was for a deal to be settled upon the “difference” alone, no good reason is perceived for disturbing their verdict. By bringing this suit appellants adopted or recognized it as their own, and though personally ignorant of its character at the time, must take it as it really was. Being found to have been such as is forbidden by the statute, and their charges on account of it being in excess of the balance here claimed, they were not entitled to recover. Tenney v. Foote, 95 Ill. 99. It is therefore unnecessary to consider the other items embraced in the account sued on.

Of the instructions given for appellants those numbered 2, 5, 10, 12 and 13, as asked, entirely ignored the defense dev el' oped by the evidence and their modification was required to correct this defect. In our opinion these did not, as suggested, misstate the rule as to the burden of proof.

Eight were refused. The legal proposition presented by the first and second of these is that “ if the defendants authorized or ratified the settlements and payments (in question) then they are. liable to the plaintiffs in this action for the ■same, and this regardless of whether said transactions were gambling contracts on the board within the meaning of the statute or not.” If gambling contracts, they were absolutely void, and could not be validated by any form of authorization or ratification; if they were not, and yet were not authorized because in departure from the orders given, the defendant would not be bound by a ratification unless with knowledge or information of sncli departure, of which there is no evi- . dence.

The second incorrectly stated that no proof had been introduced in support of the special pleas. The third instructed the jury that the defense imputed a crime and therefore every . fact necessary to constitute it must be “ clearly proven by a preponderance of the evidence.” But a criminal offense was not necessarily, nor in fact, imputed to the plaintiffs, and we hold that as against them it was sufficient to prove a gambling contract with their agent by the measure of evidence generally required in civil actions. If the facts were to be “clearly” proven, the jury should have been told how clearly. .The proposition as stated, was too indefinite and liable to mislead.

No harm was done by the refusal of the fourth, which related to interest, because nothing was found due for principal.

The fifth was substantially embodied in the one numbered six as given, and the seventh and eighth were contrary to the construction of the statute in Pierce v. Foote, 114 Ill. 228, according to which plaintiffs were “ winners.”

Complaint is also made of the overruling of certain challenges for cause, whereby it is claimed appellants were wrongfully forced to exhaust their peremptory chaff eng -s, and take one juror who was disqualified by prejudice. To our minds it is clear that these jurors meant to say they had an opinion that there were gaming transactions on the Board of Trade, and not as the improper frame of the question would make it literally appear, that transactions on the board were gaming; and if it would require evidence or even a preponderance of evidence to change that opinion0 (which was the cause alleged) we apprehend they were not at all singular in that respect nor thereby disqualified to try this case, as to which they said in substance they had no knowledge, opinion or prejudice, and could try it impartially upon the evidence therein. Counsel especially except to the court’s sustaining an objection to the following question: “If the evidence in tins case is equally balanced on the question as to whether the contracts in controversy were gambling contracts, would you adhere to your original opinion ? ”

This assumed that the juror had an original opinion in this case and of the contracts here in controversy, which ivas entirely without foundation, so far as we can discover. Besides, it admitted of no intelligent categorical answer, because it supposed no question of any fact that would make these gambling contracts.

For these reasons the objection was rightly sustained.

Perceiving no material error in this record-the judgment will be affirmed.

Affirmed.


author: Baker, J.

text:
    William Edwards v. William Hamilton.
    1. Vendor and vendee. — The fraudulent intent of the vendor can not affect the rights of a purchaser for value who is not chargeable with notice of such intent.
    2. Declarations of vendor. — The declarations of a vendor, made after the sale of the’property, can not be received to defeat the title of the vendee.
    3. Same — Res gest2e. — Where "the terms of the contract of sale had been agreed upon, but the sale had not been fully consummated by a delivery of the property, statements made by the vendor explanatory of his then custody of the subjects of the sale, and of that which he was then doing in furtherance of the-transfer, may be regarded as a part of the res gestee and therefore admissible.
    Appeal from the Circuit Court of Knox county; the Hon. A. A. Smith, ' Judge, presiding. ^
    Opinion filed December 4, 1885.
    Messrs. Stewart & Stewart, for appellant.
    Messrs. Grier & Dryden, for appellee.
   Baker, J.

This controversy arises out of an interpleader interposed by William Hamilton, the appellee, in a certain attachment suit prosecuted by the appellant against Samuel and Joseph Gratton, and wherein the writ had been levied on two colts, a sulky plow and a set of double harness. The issue formed was, whether or not the sale made of said property by Samuel Gratton to appellee was fraudulent. The verdict and judgment were for the intervening claimant.

There is no doubt, from the testimony, that Samuel Gratton disposed of all his property, to appellee and others, for the purpose of defrauding his creditors, and left the country. It is, however, the settled law, that the fraudulent intent of the vendor can not affect the right of a purchaser for Aralue who is not chargeable with notice of such intent. The evidence bearing upon the question of the good faith of appellee is somewhat conflicting, but sufficiently supports the verdict.

The instructions of the court were quite full, and fairly submitted the m liters in issue to the jury. There were slight inaccuracies in several of them, but these inaccuracies were amply cured by other instructions, and were not of sufficient importance to justify a reversal.

The statements made by Samuel Gratton to Edwards and to Bryant, after he had sold and delivered the colts to appellee, were properly excluded by the court. The declarations of a ven lor, made after the sale of the property, can not be received to defeat the title of the vendee. Miner v. Phillips, 42 Ill. 123.

The colts'were sold on the 19th of October, 1883, and were at that time in the pasture of one Montgomery; and the vendor, on the 24th of the same month, went to the pasture and got them, and took them to the farm of appellee, some four miles distant.

Montgomery was permitted, over the objection of appellant, to answer a question as to what Samuel Gratton said at the time and while in the act of taking them away. So also one Barr, who met said Gratton with the colts on the road from the pasture to the place of appellee, was allowed to testify as to what Gratton said in regard to what he was doing with them. We think the questions were not objectionable ; the terms of the contract of sale had been agreed upon, but the sale had not been fully consummated by a delivery of the property, and the statements made by the vendor, explanatory of his then custody of the subjects of the sale and of that which he was then doing in furtherance of the transfer, may be'regarded as a part of the res gestee, and therefore admissible.

The question to Barr only elicited the answer that Gratton remarked that he was taking them to Hamilton’s, and that he did not remember of his saying anything about a sale.

The answer of Montgomery, however, went too far to be properly a part’of the res gestee, as it went to the extent of stating what Gratton said as to the price for which the colts had been sold.

But as the objectionable feature was in the answer, and not in the question, and no motion was made to exclude, we think appellant cannot now avail himself of this point. Moreover, the indebtedness of the defendants in attachment to appellant was not contracted until nearly a month after the time of this sale, and it does not appear from the evidence that any other debts against said defendants, or either of them, were then in existence. The judgment is affirmed. '

Affirmed.


author: Welch, J.

text:
    Chicago, Burlington & Quincy Railroad Co. v. Abigail McGaha.
    1. Negligence. — Where appellee, who was driving in a buggy, when near the railroad crossing, stopped and looked and listened for an approaching train, and the view of the track being obstructed by weeds and brush on the company’s right of way and no warning being given by bell or whistle, she did not see or hear the approaching train and started to cross, and when within a few feet of the track the train dashed by, frightening her horse, and the buggy was upset and she was injured, held, that the appellee used ordinary care and that appellant was guilty of gross negligence in not giving a_signal and in permitting the brush, etc., to remain on its right of way.

      2. Instructions. — An instruction which is fully embraced in another already given, may properly be refused.
    Appeal from the Circuit Court of Knox county; the Hon. A. A. Smith, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Williams & Lawrence and Mr. O. F. Price, for appellant.
    Mr. A. M. Brown, for appellee.
   Welch, J.

This is one of those actions, now so frequent, for injuries caused by negligence, in which the principal questions are whether there was ordinary care used by the plaintiff, and whether the defendant was guilty of gross negligence.

The plaintiff in her declaration alleges in the first count that she was driving along a highway, using due care. That defendant’s servants so carelessly ran a locomotive engine and train, in not ringing a bell or blowing a whistle, that said locomotive ran so close upon the plaintiff’s horse that it became frightened and whirled round upsetting her carriage and injuring plaintiff.

The second count alleges that defendant owned a certain right of way, and was so negligent in allowing trees and brush and weeds to grow thereon as to prevent persons, using ordinary diligence, from discovering the approach of trains; by means whereof an engine ran near plaintiff when on the highway and frightened her horse so that he suddenly whirled and threw plaintiff out of the carriage, to her great injury. There was also a count alleging general negligence upon the part of the defendant. Plea of not guilty. Trial and verdict for plaintiff for the sum of $750. Motion for new trial— motion overruled and judgment, from which this appeal is taken. It is insisted upon the part of the appellants that there was a want of ordinary care on the part of the appellee, in the maimer in which she approached the crossing; while on the other hand it is insisted that there was no want of ordinary care on the part of appellee, but that there was gross negligence on the part of appellant in not ringing a bell or sounding a whistle, and in allowing trees, brush and weeds to be standing and growing on its right of way, so as to hinder and prevent persons, using ordinary care, from discovering the approach of trains, etc.

In the case of the Galena & Chicago Union R. R. Co. v. Dill, 22 Ill. 264, Justice Walker says: “ The question of negligence is one of fact which must be left to the determination of the jury. It depends to so great an extent upon the surrounding circumstances of each case that unless it is gross no rule can be adopted. The jury must necessarily determine, from the situation of the parties and all of the surrounding circumstances, whether there has been negligence on either part, or whether the occurrence was purely accidental and without the fault of either party. On the part of the appellee it was shown that the horse was gentle; that within a few rods as she approached the crossing she stopped, looked and listened, to hear and see if there was an approaching train, and that not hearing or seeing any she started to cross the track, and that when within a few feet of the track the train dashed by, her horse was frightened, and suddenly turning upset the buggy, threw her out and seriously injured her j, that there was a curve in the road, which makes it dangerous for one coming from the south ; that there were weeds some eight feet high between the hedge fence and the track, which' together with the hedge fence obstructed the view of one coming from the south, the direction from which appellee was coming; that no bell was rung or whistle blown. The only precautions she could take were to lo'ok and listen. She stopped her buggy within a few rods of the crossing, looked and listened for an approaching train and neither heard nor saw any. It can not be said that she was required to get out and leave her vehicle and go to the track, or to stand up in order to get a better view. This would be requiring extraordinary care and diligence, greater than the law requires. Duffy v. Chicago & Northwestern Railway Co., 32 Wisconsin, 274; Davis et al. v. N. Y. C. & H. R. R. Co., 47 N. Y. 400. Richardson v. N. Y. C. & H. R. R. Co., 45 N. Y. 847. In the absence of any warning she had the right to assume that no train was approaching and that it was safe to pi oceed; and she having used this precaution it can not with propriety be said that she was guilty of negligence.” In the case of the I. & St. L. R. R. Co. v. Stables, 62 Ill. 319, Judge Walker says: “Defendant showed that he was trying to exercise caution when he stopped sixty-five yards from the railroad track and looked and listened for the train, and neither seeing it nor hearing it he then proceeded to cross the track. An engine driver might have been able to calculate the chances more accurately than he did. The jury, no doubt, declined, and properly so, to determine the question of prudence by so high a standard. He no doubt supposed, and it is probable that the great majority of men not skilled or familiar with the speed of railroad trains would have supposed, that there being no train in hearing he could have ¡trotted his horses sixty-five yards before a train at ordinary speed could reach the crossing.” In the case of Dimick, Adm’r, v. C. & N. W. Ry. Co., 80 Ill. 339, it was held that when a person approaching a railroad crossing, when near to it, looks and listens for an approaching train, and no warning is given him by bell or whistle, he will be guilty of no negligence on his part in going upon the track. And that when a railroad company permits brush and other obstructions on its right of way so as to prevent the view of approaching trains by travelers on the highway crossing its track, and neglects to give any signal of danger by a train approaching the crossing, either by ringing a bell or sounding a whistle, whereby a party is injured, it is guilty of negligence.

There was a conflict in the evidence as to whether the bell was rung or the whistle sounded, and also as to whether there were trees, brush or weeds on the appellant’s right of way at or near the crossing so as to prevent persons using ordinary diligence from discovering the approach of trains. As was held in C., B. & Q. R. R. Co. v. Lee, Adm’x, 87 Ill. 457, “The policy of our system of jurisprudence is, that as the jury system was established and is maintained for the finding of disputed facts at common law, it is the province of the jury to do so, uncontrolled by the court, if the evidence tends to support their finding. It is only by force of our statute that we have power to review their finding, and under long established practice we will not, unless compelled from want of evidence, or its too manifest weakness and insufficiency to sustain the finding, reverse because the finding is against the evidence. We will not lightly disturbthe finding of a jury whose province it is to find facts, and the circuit judge who heard the evidence and approved the finding by refusing to set aside the verdict.” The same rule is stated in Adams v. Suver, 89 Ill. 432, and in Conn. M. L. Ins. Co. v. Ellis, same, 516. There was no error in the admission of evidence.

It is insisted by appellant that the court erred in refusing certain instructions. Upon a careful examination of the instructions given for appellant, as well as those refused, we find no error. Every question presented in the refused instructions has been substantially embraced in those already given, and as we think in a clearer and more intelligible form. As held in Hessing v. McCloskey, 37 Ill. 342, “ An instruction which is fully embraced in another, already' given, may properly be refused.” “ It is not error for the court to refuse an instruction which in substance has already been given to the jury.” McKichan v. McBean, 45 Ill. 228.

The issue formed in this case was fairly presented to the jury and their verdict was against the appellant on that issue. We can not say from a careful inspection of the who e record that the verdict is clearly against the weight of the evidence and finding no error in the instructions, the judgment is af. firmed.

Affirmed.


text:
    Western Union Telegraph Co. v. Harris & Comstock.
    1. Telegraph companies — Liability.—Regulations exempting telegraph companies from liability for errors in unrepeated messages, exempt them only from errors arising from causes beyond their own control. Notwithstanding special conditions in a contract, such companies are bound to use at least ordinary care and diligence in their business, and are responsible for mistakes happening by their own fault.
    2. Night messages — Damages limited to ten times charges paid —• A telegraph company is bound to use ordinary care and diligence as well in the transmission and delivery of a night message as of a day message, anl the same rule as above applies where the damages' in a night message w re limited to ten times the charges paid for sending. Held, that such limita, tion was unreasonable.
    3. Mistake in message. — A mistake in the transmission of a message is prima facie evidence of negligence, and the burden of proof is shifted to the company to show the contrary.
    4. Same. — Where the message as delivered by the commission merchants to the telegraph company, was: “ Ten cars new two whites Aug. shipment fifty-six half — Prompt reply,” and the company delivered the message leaving out the six after fifty. Held, that the message was sufficient to give the'company notice of its importance, and disclosed the nature of the business as fully as the case demanded.
    5. Damages. — The receiver of the message ordered the grain by telegraph, and the error in the message did not appear until the grain had been shipped. The receiver paid the draft drawn on him by the sender of the message upon condition that the sender would repay to him the difference in price, six cents a bushel. Suit is now brought against the company for the damages, six cents a bushel. The evidence shows that the sender bought the oats on the market at an average price of forty-five cents a bushel, and the freight was ten and one half cents a bushel. Held, that the verdict of the jury awarding five cents a bushel as damages was correct.
    Error to the Circuit Court of Peoria county; the Hon. 2sT. M. Laws, Judge, presiding.
    Opinion filed December 29, 1885.
    Appellees were grain and commission merchants at Peoria, and on August 10,» 1882, delivered to appellants, to be sent to the Paris Flouring Company, Portland, Maine, the following message:
    “ Ten cars new two whites Aug. shipment fifty-six half. Prompt reply.”

      When delivered at Portland to the Paris Flouring Co. the dispatch read as follows:
    “ Ten cars new two whites Aug. shipment fifty half. Prompt reply.”
    The message as sent was an offer by appellees to sell to Paris Flouring Co., delivered at Portland, ten cars of new Ho. 2 white oats, to be shipped in August, at fifty-six and one half cents per bushel; and as delivered it was an offer to sell the same ati fifty and one half cents per bushel, the word “six” having been omitted from the dispatch in its transmission. The Flouring Company telegraphed in reply:
    “ Accepted; ship Boston via Portland. Start few cars early as possible.”
    It appears that the freight rate to Portland was the same as to Boston. The oats to fill the supposed contract were purchased by appellees and sent forward, and the error was not discovered until after they had all been shipped from Peoria.
    Upon discovering a mistake had been made, the Paris Flouring Co. telegraphed to appellees offering to cancel the contract, and this offer was declined. Appellees had, at date of shipment, drawn on the Flouring Co. for the price of the oats at fifty-six and a half cents per bushel, and were notified that the draft would not be paid unless they would agree to accept a draft of the Flouring Co. upon them for the difference in price, six cents per bushel; this appellees agreed to do and did so, repaying to the company $551.25. Yerbal notice was immediately given to appellants, and on the 6th of September following appellees presented to them a written claim for damages, at six cents per bushel.
    The evidence shows that the oats shipped amounted to nine thousand one hundred and eighty-seven and a half bushels, and that they were bought by appellees on the Peoria market for the purpose of filling the supposed contract, at a cost of from forty-three and one half to forty-eight cents per bushel, and at an average price of a fraction over forty-five cents per bushel; and that at that time the freight to Portland or Boston was thirty-two and a half cents per hundred, or within a very small fraction of ten and a half cents per bushel. It also appears that at the time of the arrival of the oats in Portland the market price there was from forty-eight to fifty cents, with a dull market.
    The evidence further shows, that the message of the tenth of August, from which the word “ six ” was dropped in transmission, was what is known as a night message, and that the charge made for sending and delivering it was fifty-six cents, that being one half of the usual rates charged for day messages. The blanks furnished by the telegraph company for night dispatches, and upon one of which the telegram in question was written by appellees, provided, among other things, that the company would receive messages to be sent without repetition during the night at one half the usual day rates, but upon the express condition that the sender will agree that he will not claim damages for errors or delays, or for non-delivery of such messages, happening from any cause, beyond a sum equal to ten times the amount paid for transmission.
    This action was brought by appellees against appellants to recover damages alleged to have been caused by the negligence and mistake of appellants in transmitting the dispatch of the tenth of August. The verdict of the jury and judgment of the circuit court were for appellees, for $459.38 damages.
    Messrs. Stevens, Lee & Horton, for appellant;
    that the damages must not be the remote but proximate consequence of the breach of the contract and must not be speculative or contingent, cited Beaupre v. P. & A. Tel. Co., 21 Minn. 158; First Nat. Bk. v. Tel. Co., 30 Ohio, 565; Baldwin v. U. S. Tel. Co., 45 N. Y. 753.
    Plaintiffs can not recover more than the price of the message, unless it is shown that the offer correctly sent would have been accepted: Beaupre v. P. & A. Tel. Co., 21 Minn. 158.
    Before defendant can be held liable it must appear that it had knowledge of the moaning of the message : Beaupre v. P. & A. Tel. Co., 21 Minn. 161; Baldwin v. U. S. Tel. Co., 45 N. Y. 749; W. U. Tel. Co. v. Martin, 9 Bradwell, 587; Landsberger v. Magnetic Tel. Co., 32 Barb. 530; U. S. Tel. Co. v. Gildersleeve,. 29 Md. 232.

      The condition as to the repetition of a message and insurance is reasonable and valid, unless mistake happen through gross negligence, and will excuse the company : Passmore v. W. U. Tel. Co., 78 Pa. St. 238; West Un. Tel. Co. v. Neill, 57 Tex. 291; Ellis v. American Tel. Co., 13 Allen, 233; Camp v. W. U. Tel. Co., 1 Metc. (Ky.) 164; Sweatland v. Ill. & Miss. Tel. Co., 27 Ia. 446; McAndrew v. Electric Tel. Co., 17 C. B. 3; West Un. Tel. Co. v. Carew, 15 Mich. 525; Breese v. Tel. Co., 48 N. Y. 138; Grinnell v. W. U. Tel. Co., 113 Mass. 302; Aiken v. Tel. Co., 5 S. C. 358; Becker v. Telegraph Co., 11 Neb. 87; Wann v. Telegraph Co., 37 Mo. 472.
    Telegraph companies are not strictly common carriers, and should not be held to the same degree of strict responsibility: W. U. Tel. Co. v. Neill, 57 Tex. 283; Ellis v. Am. Tel. Co., 13 Allen, 232; Birney v. N. Y. & Wash. Tel. Co., 18 Md. 358; Breese v. Tel. Co., 45 Barbour, 292; W. U. Tel. Co. v. Carew, 15 Mich. 532; Breese v. Tel. Co., 48 N. Y. 132; Grinnell v. W. U. Tel. Co., 113 Mass. 305; Wann v. Tel. Co., 37 Mo. 472.
    Parties sending night messages may agree, in consideration of the reduced rate, upon a sum certain in the nature of liquidated damages, for an error or delay arising from other cause than misconduct, fraud, or want of due care: W. U. Tel. Co. v. Neill, 57 Tex. 283; Ellis v. Am. Tel. Co., 13 Allen, 238; Elkins v. Trans. Co., 81 Pa. St. 315; Cam. v. W. U. Tel. Co., 1 Metc. (Ky.) 164-167; Breese v. U. S. Tel. Co., 45 Barb. 274; Breese v. Tel. Co., 48 N. Y. 138; Redpath v. Tel. Co., 112 Mass. 71; Aiken v. Tel. Co., 5 S. C. 358; Becker v. Tel. Co., 11 Neb. 87; Wann v. Tel. Co., 37 Mo. 472.
    Messrs. Cratty Bros., Messrs. Fuller & Gallup and Mr. Miles A. Fuller, for appellees;
    as to liability of telegraph companies, cited Tyler v. W. U. Tel. Co., 60 Ill. 421; Sweatland v. Miss. Tel. Co., 27 la. 433.
    As to liability on night messages: True v. International Tel. Co., 60 Me. 9; Candee v. W. U. Tel. Co., 44 Wis. 471; Hubbard v. W. U. Tel. Co., 33 Wis. 558; Bartlett v. W. U. Tel. Co., 62 Me. 209.

      The message was sufficient to give notice to the company of its importance: In re W. U. Tel. Co., 68 Ga. 289; Tyler v. W. U. Tel. Co., 60 Ill. 421; Hubbard v. W. U. Tel. Co., 33 Wis. 558.
    As to damages: Turner v. Hawkeye Tel. Co., 41 Ia. 458 ; 2 Sutherland on Damages, 422.
   Baker, J.

In Tyler, Ullman & Co. v. W. U. Tel. Co., 60 Ill. 421, and W. U. Tel. Co. v. Tyler et al., 74 Id. 168, it was held that regulations exempting telegraph companies from liability for errors in unrepeated messages, exempt them only from errors arising from causes beyond their own control; and that notwithstanding special conditions in a contract, such companies are bound to use at least ordinary care and diligence in their business and are responsible for mistakes happening by their own fault, such as defective instruments, carelessness or unskillfulness of their operators. In the Tyler case the question before the court had reference to an unrepeated message, whereas the matter now under consideration is in respect to a night message ; but as a telegraph company is bound to use ordinary care and diligence as well in the transmission and delivery of a night message, as of a day message, the same rule would apply. In True v. Int Tel. Co., 60 Maine, 8, the dispatch was a night message, and was written on a night message blank that contained a provision much like that here involved, and it was held that the terms of the conditions were not reasonable and did not exonerate the company from liability for damages occasioned by their default. A similar stipulation "with reference to a night dispatch was in Hibbard v. W. U. Tel. Co., 33 Wis. 558, held to be unreasonable and void, and against sound public policy, inasmuch as it undertook to protect the company against the consequences of the negligence or fraud of its own agents. The same doctrine with reference to a night telegram is announced in Candee v. W. U. Tel. Co., 34 Wis. 471. In Bartlett v. W. U. Tel. Co., 62 Maine, 209, which was an action to recover damages for a mistake in the transmission of a night dispatch, it was decided that a condition of the kind under consideration was against public policy, and therefore void even when assented to by the sender. These two latter cases are expressly referred to and approved by our Supreme Court in W. U. Tel. Co. v. Tyler, supra. The only circumstance of difference between the present case and those we have cited, is that here the damages are limited to ten times the charges paid for sending, instead of the exact amount so expended. The rule or contract, whichever it may be, claimed to be now in question, covers all errors or delays from any cause, and it must be regarded, .so far as it proposes to relieve the corporation from responsibility for the negligence or misconduct of its own employes, as unreasonable an l unjust, alike hurtful to private rights and against public policy, and consequently void. The provision to pay a sum as damages, that shall in no event exceed ten times the trifling amount received as compensation for sending, is a mere shift or device to evade legal liability.

It is the established law in this State that a mistake in the transmission of a message is prima facie evidence of negligence, and the burden of proof is shifted to the company to show the contrary. There is, however, in the record, affirmative proof, other than the fact of the error, to establish the negligence of appellants. It appears that when the telegram reached Portland and was delivered, it was marked “ 12 pd. 56,” and this is shown by the testimony to mean that the message sent contained twelve words and that fifty-six cents had been paid for its transmission. It must be regarded as evidence of gross negligence to deliver a message purporting to contain twelve words and actually consisting of but eleven, without inquiry as to the lost word.

It is urged that before the company can be held liable for more than nominal damages it must appear that they had knowledge of the meaning and purport of the message, at least to the extent that they could j udge of the nature, character and amount of damages that might be sustained through a failure to correctly transmit. The evidence shows that it was an ordinary commercial dispatch, intelligible to those engaged in the grain business, and no doubt understood by the operators having charge of that character of telegrams sent from the office of appellants in the Board of Trade building. It was at least evident it was a commercial message of importance; and it disclosed the nature of the business as fully as the case demanded. Tyler, Ullman & Co. v. W. U. Tel. Co., ante.

A principal point in this litigation is with reference to the proper rule for the assessment of damages, as applicable to the facts of the case. We have already seen that the damages should not be restricted to the maximum recovery as fixed by the terms of the supposed rule or contract printed upon the blanks used for writing night messages. It is claimed by appellees that they were entitled to recover $551.25, that being six cents per bushel on 9,1874 bushels of oats shipped, and being the difference between the price at which they supposed the oats were sold and that at which they actually were sold, and being also the amount they were obliged to pay to the Paris Flouring Company. We are unable to indorse this view of the matter; the evidence shows that if the telegram of Axigust tenth had been transmitted and delivered as it was written, the offer to sell would have been declined; and if damage was. allowed upon the basis suggested, appellees would recover a profit they would not and could not have realized if there- had. been no default on the part of the appellants. Turner v. Hawkeye Tel. Co., 41 Iowa, 458, cited by appellees, we do not consider ah authority in point. There Turner had a contract for the delivery of August wheat in Chicago at $1.32 a bushel, and on the faith of the dispatch in which the mistake was made, ordered his commission merchant there- to purchase wheat to fill the contract, which was done. The price reported-by the telegraph company was $1,214- per bushel, and the price paid was $1.50 per bushel, a difference of twenty-eight and one half cents per bushel, and the court sustained a recovery on the basis of this difference. But the evidence in this case showed that Turner could have purchased wheat on the market at even $1.12 per bushel within five days and within the time prescribed by his contract for the delivery of the wheat he had sold. In that case the contract that was recognized as the basis of recovery could readily have been made, while here the contract that we are asked to adopt as the basis of assessment could not have been made.,

Appellees, supposing they had a contract at 56| cents per bushel, bought on the market in Peoria oats to fill it at an average price of 45 cents per bushel,-and the freight was 10J Cents a bushel; making the cost of the pats delivered in Portland, the sum of 55J cents per bushel. The party who sends a message by telegraph makes the' telegraph company his agent for its transmission and delivery, and is bound by the message as delivered; and when the legal rights of the receiver, founded upon such message, are in question, he is entitled to put in evidence the message actually received, as the original. Durkee v. Vt. C. R. R. Co., 29 Vt. 127; Saveland v. Green, 40 Wis. 431; Morgan v. The People, 59 Ill. 58. The telegraph company, then, was the agent of the appellees, and the real and binding contract between appellees and the Paris Flouring Company was at fifty and one half cents per bushel, and the oats having cost appellees delivered in Portland fifty-five cents per [bushel, there was a clear loss to appellees of five cents per bushel. The verdict of the jury and judgment of the court were upon that basis, and were correct.

There were no such errors in the ruling of the court in respect to admitting or excluding testimony as should reverse the judgment. The instructions were substantially correct, and as favorable to appellants as the law warranted:

The judgment is affirmed.

Affirmed.


text:
    Robert J. Haines v. The People, etc.
    1. Constructing race-way for private use — Keeping bridge in repair. — Where proprietors and owners of a mill-dam, by license or with the acquiescence of the public authorities, construct a race-way across the public highway for their own private use and for the purpose of availing themselves of water power, they assume the burden, not only of building a bridge across the ditch they dig or otherwise restoring the highway so as not to interfere with the rights of the public, but also of zeeping the bridge in repair and rebuilding when necessary. And this duty to repair is imposed upon their grantees.
    2. Mandamus. — Mandamus is not an appropriate remedy to enforce the performance of a duty by one who does not occupy an official or quasi-official relation, or for the enforcement of contract rights of a private or personal nature or obligation; but in the above case, as the duty is to the public and of a quasi-official character, to keep m proper repair a nortion of the public, highway, mandamus will lie. It is immaterial thao the duty is imposed by a rule of the common law and not by statute.
    8. Judgments, entby of. — The entry of a judgment must either he perfect in itself or be capable of being made perfect by reference to other parts of the record in the case or to papers on file in the particular action.
    Appeal from the Circuit Court of Kane county; the Hon. Charles Kellum, Judge, presiding.
    Opinion filed February 20, 1886.
    Mr. R. N. Botsford, for appellant;
    that mandamus will not lie in this ease, cited People v. Dulaney, 96 Ill. 503; Benson v. Paull, 6 E. & B. 273; Parrott v. City of Bridgeport, 44 Conn. 180; Allen v. Conlon, 2 Bradwell, 166; People v. C. & I. R. R. Co., 70 Ill. 232; Lavalle v. Soucy, 96 Ill. 467; High on Extraordinary Remedies, Ch. 1, § 25; State v. Bohannon, 39 Mo. 375.
    Mr. T. E. Ryan, for appellee;
    that where a necessity for a bridge is created by the act of an individual or corporation in cutting a canal, ditch, railway or race-way through a highway it is the duty of the author of the necessity or his grantees to make and keep in repair the bridge, cited Dygert v. Schenck, 23 Wendell, 446; Perley v. Chandler, 6 Mass. 454; Nobles v. Langley, 66 N. C. 287; People v. C. & A. R. R. Co., 67 Ill. 118; Commonwealth v. Deerfield, 6 Allen, 449; Stager on Roads and Bridges, 114.
    Manadmus will lie: People v. Crotty, 93 Ill. 180; Lower v. U. S., 91 U. S. 536; East St. L. v. Millard, 14 Bradwell, 483.
   Baker, J.

This is a petition for a mandamus against the appellant, Bohert J. Haines, impleaded with Oliver H. Butler and the S. L. Bignoll Hardware Company, to compel them to repair a certain bridge on Main street, in the city of St. Charles, on the west side of Fox river and within one hundred feet of the west end of the bridge across said river, over a race-way used for the purpose of carrying water across Main street. A demurrer interposed to the petition was1 overruled by the circuit court, and the defendants below electing to stand by the demurrer, a peremptory writ of mandamus was awarded. Thereupon appellant brought the case to this court.

The following facts among others appear from the petition. The city of St. Charles is organized under the General Incorporation Act. In 1835 a public highway was established that crossed Fox river on the line of the present Main street in said city; and in 1836 the town was laid out and platted and a bridge built over Fox river, and the original highway adopted as Main street, and the street since that time has been and still is used as a public street or highway. A dam was then constructed across the river about two hundred feet north of and above the bridge; and in 1812 the owners and proprietors of the mill-dam, for the purpose of using the water power, caused to be dug a race-way through and across the street, to carry water from the dam for the use of the proprietors of the water power south of the street, and below it on the river ; and caused to be built, at their own expense, across the race-way, a good and substantial bridge, which they subsequently kept in repair.

About 1885, the proprietors failed to maintain and keep in repair a good and sufficient crossing over the race-way, and claimed it was the duty of the municipal authorities to do so; and for the purpose of settling the controversy, the matter was submitted by said authorities and the then owners and proprie ors of the race, and water power to the Hon. I. G. Wilson, judge of the circuit court, who made an award to the effect certain of the proprietors should pay one half the expense of keeping and maintaining in repair the bridge in question, and certain others should pay live sixths, and still others one sixth, of the other half of such expense.

This award was acquiesced in, and the proprietors and their grantees for a number of years erected and maintained a bridge at their own expense over the race-way ; but for three or four years last past the now owners and proprietors of the race and water power, who are the grantees of the original proprietors, have failed to keep the crossing over the raceway in suitable condition, and now refuse to repair or maintain such crossing, which is unsafe for public travel.

The city council, on the 15th day of September, 1884, passed a resolution declaring the bridge unsafe, and requiring notice thereof to be given to the defendants to the present petition, who then were and now are the owners and occupiers of the race-way and water power, and are the grantees of and claim under the original proprietors ; and notice was thereupon served on the defendan s, requiring them to put the crossing in safe condition on or before the 6th day of April, 1885. The defendants fai'ed and refused to comply with this requirement. The prayer of the petition is that a mandamus may be issued compelling the defendants, and each of them, to repair and place in a suitable and safe condition for public travel, subject to the approval of the city council of the city of St. Charles, the aforesaid bridge or crossing over said race on Main street in said city of St. Charles, and that they keep the same in safe and reasonable repair. It seems to be conceded by the parties to this litigation that the award made by Judge Wilson is of no binding force. The matters set up in the petition with reference to this award may therefore be regarded as mere surplusage. Eliminating, then, these matters, sufficient still appears upon the face of the petition to show the relator is entitled to the relief sought. When the grantors of the defendants, by the license or with the acquiescence of the public authorities, constructed the race across the public highways, for their own private use and for the purpose of availing themselves of their water power, they assumed the burden not only of building the bridge across the ditch they had dug, or otherwise restoring the highway so as not to interfere with the rights of the public, but also of keeping the bridge in repair, and rebuilding when necessary. This is the rule of the common law. In the People ex rel. v. C. & A. R. R. Co., 67 Ill. 118, the Supreme Court say: “ It is a well settled principle of the common law, resting upon the most obvious consideration of justice, that any person or corporation that cuts through a highway for the benefit of such person or corporation, must furnish to the public a proper crossing, even though acting under a license from the proper authorities.” The case of Dygart v. Schenck, 23 Wend. 446, referred to by appellee, is very much in point; and in the opinion of the court there a manuscript case of 8 Edw. 11, in the beginning of the fourteenth century, is cited, whore it was held that “ if a man erect a mill for his single profit, and make a new cut for the water to come to it, and make a new bridge over it, and the people use it to go over as over a common bridge, this bridge ought to be repaired by him who had the mill, and not the county, because he erected it for his. own benefit.”

The duty to keep inrepair is also imposed upon the grantees of the original proprietors who are now the owners of the race-way and water power, as such duty is a condition attaching to and inseparable from the use of the public highway for private purposes. The defendants having succeeded to the rights of their grantors, are also subject to the same burdens. People v. C. & A. R. R. Co., supra; Nobles v. Langley, 66 N. C. 287.

Mandamus is not an appropriate remedy to enforce the performance of a duty by one who does not occupy an official or quasi-official relation, or for the enforcement of contract rights of a private or personal nature or obligation ; but in the case at bar the duty is to the public and of a quasi-official character, to keep in proper repair a portion of the public’s highway ; and that .duty is one that the law itself makes incumbent upon the defendants, and is for tl:e b mefit of the public at large and for the general welfare ; and we think it is wholly immaterial that the duty is imposed by a rule o.f the common law, and it is not created by some positive and express provision of a statute, or secured to the pu’olicthrough chartered privileges. We think that in the case before us the writ of mandamus affords a proper and sufficient remedy; and that the cases of The People v. C. & A. R. R. Co., 67 Ill. 118, and City of Ottawa, 48 Id. 233, are authorized to show the power of the court may be invoked by a mandamus proceeding respecting matters of -the kind here in issue. It is also objected that it does not appear from the petition that the defendants are jointly and equally liable, each with the others, and to the same extent, to erect and maintain the bridge. The duty to beep the crossing in repair and bear all expenses necessary therefor is imposed by the law, in respect to the rights of the public and the relator, alike upon each and all the defendants, and they may, any or all of them, be called upon to perform this duty; and the law does not cast upon either the public or the relator the burden of apportioning either the work or its cost among those whose place it is .to have it done.

The demurrer to the petition was properly overruled. «

It is assigned as error .that the court entered the judgment in the manner and form appearing in the record. The judgment is: “ It is therefore ordered and adjudged by the court tliatja peremptory writ of mandamus issue against said defendants commanding them as per the prayer of the petition.” This is informal, is probably a mere copy of the minute made by the judge, and indicates a reprehensible want of care on the part of the clerk in drawing up the orders of the court. But the reference to the petition renders the judgment sufficiently certain. The rule is, that the entry of a judgment must either be perfect in itself or be capab'e of being made perfect by reference as to other parts of the record in the case, or to the papers on file in the particular action. Freeman on Judgments, Sec. 54.

The prayer of the petition, which is incorporated by reference as a part of the judgment, is that defendants, and each of them, repair and place in a suitable and safe condition for public travel, subject to the approval of the city council of the city of St. Charles, the bridge or crossing over the race. It is urged the requirement the repair’s are to be made subject to the approval of the city council ” renders the act to be performed quite indefinite, and that the command of the writ awarded exceeds the limits of the legal obligation of the defendants. We think the objection is more captious than substantial ; by the general act of incorporation under which the city is organized, full aud exclusive control over the streets is given to the city council, and all work done thereon is made subject to its approval; the thing required to be done is simply to repair and place the portion of the street in question in a suitable and safe condition for public travel, and either with or without the subsequent clause, the council would, under-the law, have the right to insist the crossing should be af the established grade, and otherwise in conformity with its ordinances.

Finding no error in the record for which the judgment should be reversed it is ordered that it he affirmed.

Affirmed.


author: Lacey, P. J.

text:
    Town of Aurora et al. v. Chicago, Burlington & Quincy Railroad.
    Recoveby back — Special assessment — Tbust fund — Limitation.— A bill in equity filed by appellee against appellant town to restrain the latter from turning over to the road and bridge fund $1,491.40 collected from the property of appellee to pay certain interest on the registered bonds of the appellant and paying a portion of said bonds. The act under which the bonds were claimed to have been issued was void. Held, that as this is a special fund created for a special purpose outside of the ordinary revenues of the town, it becomes a trust fund and must be applied to the purpose for which it was raised or refunded; that the Statute of limitations will not run against the party entitled to the fund.
    Appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.
    Opinion filed February 20, 1886.
    This was a bill in equity filed by the appellee against the appellant to restrain the appellant from turning over to the road and bridge fund the sum of §1,419.40, collected from the property of appellee to pay certain interest on the registered bonds of the appellant, and paying a portion of said bonds, which relief was granted. The cause came to a hearing on an agreed state of facts. The appellee had been continuously since 1868 and prior thereto, and was then, a corporation created under the laws of the State of Blinois. That the appellant was also since 1868, and still was, a municipal corporation under the laws of the State of Blinois, and that Thomas O’Donnell was supervisor, and at the time of filing the agreement T. ¡N". Holden was supervisor. That the appellee was a taxpayer having large amounts of taxable property in the corporate limits of the said town, about §250,000 worth, real and personal, being a large proportion of all the taxable property in said town, which does not exceed §2,347,168. That the town of Aurora, under and by virtue of a supjiosed act of the legislature of Blinois, authorizing certain cities, counties, incorporated towns and townships to subscribe to the stock of certain railroads, approved February 18,1857, issued certain bonds to the number of sixty, numbered consecutively, all dated May 1,1869, payable as set forth in said bill of complaint, in aid of a certain duly organized railroad corporation, “The Ottawa, Oswego and Fox River Valley Railroad Co.” That coupons for the payment of the annual interest was attached to them. That appellant ordered a tax or bond in 1872, with the balance of the town taxes for said year, which was duly certified to the county clerk and by him extended on the tax books for that year, and the special purpose of levying such tax was to raise a special fund to pay the bonds numbered 11 to 20 inclusive in said series maturing July 1, 1873, which was a distinct tax called the “ registered bond tax ” and an account kept in a separate column on the books, which tax was collected by the proper authorities of said town. That the total amount collected of said tax was §14,817.78. That appellee on the 17th of March, 1873, paid said town as its due and just proportion of said tax, §1,491.40, vffiich was then received by the proper town officers. That at the time of the commencement of this suit there was still held $6,224.31 of the proceeds of said tax, which was held by O’Donnell, as supervisor of said town. That at the annual town meeting, April 1, 1883, the electors of said town, by resolution, ordered the supervisors of the town holding the said money to turn over to the commissioners of highways of said town all said money to be used for road and bridge purposes, to keep in repair roads and bridges which were a charge upon said town. That the act under which said bonds are claimed to have been issued by the town was declared void by the Supreme Court of Illinois, at its June term, 1872, in Ryan v. Lynch, 68 Ill. 160, again at September term, 1872, in Miller v. Goodwin, 70 Ill, 659, and the bonds were held illegal and void by the Supreme Court of the United States in Post v. Supervisor, 94 United States, 260, and Amoskeag National Bank v. South Ottawa, 105 United States, 667.
    Mr. R. G. Montony, for appellants;
    that the money paid can not be recovered back, cited Town of Lyons v. Cook, 9 Bradwell, 543; Swanston v. Ijams, 63 Ill. 165; Un. Bldg. Assc. v. Chicago, 61 Ill. 439; Falls v. Cairo, 58 Ill. 403; Cooley on Taxation, 565; Elston v. Chicago,. 40 Ill. 514; Bilbie v. Lumley, 2 East, 469; Fairfield v. People, 94 Ill. 244; Smelson v. State, 16 Ind. 29; Marrott v. Hampton, 2 Esp. 546; Clark v. Dutcher, 9 Cowen, 674.
    Messrs. Dexter, Herrick & Allen, for appellee;
    cited Drake v. Phillips, 40 Ill. 388; Springfield v. Edwards, 84 Ill. 626; Jackson v. Powers, 72 Ill. 394; Wright v. Bishop, 88 Ill. 302; First National Bank v. Wheeler, 72 N. Y. 201; Perry on Trusts, § 160; Bradford v. Chicago, 25 Ill. 411.
   Lacey, P. J.

It is contended by counsel for appellant that the money can never be applied to the payment of these bonds, nor can another tax be collected to replace the money because the-bonds are held to be entirely void. It further claims that the money in question is not a trust fund to be paid back to them who paid it. That the Statute of Limitations has run and that equity will not take jurisdiction in this case.. The. main argument by counsel for the appellant is to the effect that this assessment is in the nature of a general tax, and that unless it was paid under duress it can not be recovered back by appellee or any claim asserted to it by it. This position is no doubt correct, provided this is in the nature of a general tax, but it is a special fund created for a special purpose outside of the ordinary revenues of the town; we think the position is not correct. It then becomes a trust fund, and must be applied to the purpose for which it was raised.

It is urged that it is all the same to appellee whether this fund goes to the road and bridge fund, or is paid back to him, or applied on the railroad indebtedness; for it is argued the roads and bridge must be repaired, and if this fund is not used then appellee’s property must be taxed in connection with all the other property in the town to raise the required fund. But this would not be so for the reason that already, as is stated by appellant, many of the heaviest taxpayers in the town in the suit of Goodwin et al. v. Miller & Paddock, 70 III. 659, have enjoined the collection of their share of the tax, These and other parties not having paid the railroad tax would be just as much benefited in proportion to their assessed values in the town by the appropriation of this tax to the road and bridge fund as appellee. The appellee would be compelled to bear an undue proportion of the expense of the road and bridge charges against the town. We think this tax ought in justice to be considered a special fund not applicable to the payment of any other town expenses. It was raised under pretense of paying the railroad bonded indebtedness, and should be applied to such purpose or refunded to the party, and if the party desires that the money so raised should be applied on the payment of those bonds it certainly ought to have the right to have it so done. In fact, it may hold those bonds itself and desire payment, or it may be under relation to the bonds in some way that it feels under equitable obligation to pay them. It may prefer for many reasons, to have the money paid out on the bonds rather than to have it turned into the town treasury for road and bridge purposes. Certainly no other tax payer ought to complain, as this money was not raised for that purpose, and they have no right to ask to be relieved from their legitimate share of the burden of these expenses by having the appellee’s money applied as contemplated.

For, if this appropriation by the town electors is carried into effect, it may relieve all the taxpayers in this town for a year or years from any taxation for such purpose at the expense of appellee. Besides, we think that the Supreme Court in Bradford v. Chicago, 25 Ill. 411, and Falls v. Cairo, 58 Ill. 403, has recognized the principle, that in cases like this, such asse -sments shall be regarded as a trust fund and liable to be j>aid back to the party who paid it in ; in case it is not used for the purposes for which it was created, unless some equitable circumstances intervenes as in Falls v. Cairo, above to prevent it. In Bradford against Chicago, supra, the appropriation and collection was to extend to La Salle street, and this not being done, the taxpayer, Bradford, was allowed to recover back the amount he had paid in. We heartily approve this doctrine as being most just and equitable — see" First Nat. Bank v. Wheeler, 72 N. Y. 201. Taxes similar to this have been treated as in the nature of a trust fund, and it has been held that the Statute of Limitations would not run against the party entitled to the fund: Logan Co. v. City of Lincoln, 81 Ill. 156; and besides, the trust in this case was not repudiated until the spring of 1883, within five years from the commencement of this suit.

The point taken in appellant’s answer, that equity has no jurisdiction in the case, is not well taken, as we think. This was a trust fund, and the originator was seeking, not to recover the money back, but to prevent its being diverted to a purpose foreign to that for which it was created. The corporate authority of the town is a mere instrumentality for the benefit of the taxpayers, and should not be used as an engine of oppression, against any individual.

The point is raised by appellant that the agreed state of facts does not show that all appellee’s money paid in was still in the hands of the town officers ; that it may have been paid out of the bonds. It does appear, however, that the money was u.11 paid in, and we are of the opinion the harden of proof was on appellant to show that all or some portion was paid out. We think the decree should he affirmed, and so order.

Decree affirmed.