text:
    Mobile & Ohio Railroad Company et al., Appellees, v. Alexander S. Fraser, County Collector, et al., Appellants.
    1. Revenue—when appellate eowt has jwisdiction. The appellate court has jurisdiction to review an interlocutory order restraining the collection of a road district tax.
    2. Roads and bridges—when mmñcipality not eliminated from road district. The adding of additional territory to a road district does not operate to eliminate from such district a city which is a part thereof.
    Bill for injunction.' Appeal from the Circuit Court of Alexander county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Alexander Wilson, Michael J. O’Shea, William S. Dewey and Wall & Martin, for appellants.
    Lansden & Lansden and Angus Leek, for appellees.
   Mr. Justice McBride

delivered the opinion of the court.

A temporary writ of injunction was issued herein. A motion was made by appellants to dissolve the temporary injunction for want of equity appearing upon the face of the bill. The motion was denied, from which order appellants prosecute this appeal.

On May 15, 1911, appellees, by their bill in chancery, sought to restrain the county collector and road district No. 7 in said county from collecting a road district tax. The bill alleges as a reason why appellants should be restrained from collecting such tax that the county of Alexander was not under township organization, and at the July meeting, 1887, the Board of County Commissioners divided the county into road districts and made road district No. 1 to consist of townships 17 and all of fractional township 16, range one west; and made road district No. 2 to consist of townships 17 and 16, range two west; and all other road districts were made to embrace territory west and north of said townships; that on April 24, 1899, a law was enacted giving the Board of County Commissioners of the several counties of the State, “full and complete power and jurisdiction to alter the boundaries of road districts and to change road district lines in their respective counties to suit the convenience of the inhabitants residing therein.” And that said Act further provided:

“That hereafter all incorporated cities, towns and villages shall be excluded from all road districts now formed or to be formed in counties not under township organization in this state; provided, however, that such incorporated cities, towns and villages in counties not under township organization may by ordinance elect to be included in such districts. Upon the filing with the County Clerk of such county a copy of such ordinance, it shall be the duty of the County Board of Commissioners at its first session thereafter to create such city, town or village into a road district or to make it a part of some road district already formed.”

The bill then alleges that at the September meeting, 1901, and on the 10th day of the month, the said Board in pursuance of said Act took from said road district No. 1, sections 1, 2, 11 and 14 in said township 17, 1 west, and section 35 in township 16, 1 west, and made out of the same a new road district and numbered the same 7; that the city of Cairo, located in said township 17 in said county, on the 10th of September, 1901, and after the formation of the said road district No. 7, adopted the following ordinance:

“Be it Ordained by the City Council of the city of Cairo, Illinois, that the said City of Cairo by its City Council hereby elects to be included in road district No. 7 of the County of Alexander, in the State of Illinois, as the said district is now formed and established by the Board of County Commissioners of said Alexander County, and that the City Clerk of said City be, and he is hereby directed to file with the County Clerk of said County, a copy of this ordinance as provided by statute in such case. ’ ’

The bill then alleges that on September 11, 1901, and after the approving of said ordinance, the said County Board at its special term, 1901, entered an order upon its records, in due form of law, reciting the passage of the said ordinance by the city of Cairo, and setting out a copy thereof, and concludes said order with the following language, “It is therefore ordered by the said Board that the said city of Cairo be and it is hereby attached to and made a part of said road district No. 7.”

The bill then alleges that the said County Board at its December meeting, 1904, took from such road district No. 1 and added to said road district No. 7, sections 3, 4, 5, 9, 10 and 15 in said township 17; and sections 30, 31, 32, 33 and 34 and parts of sections 18, 19, 27, 28, 29 and 35, all in township 16; that the said Board at the March term, 1910, abolished said road district No. 2 and added the same to said road district No. 7, so formed at the September term, 1901, and enlarged at the December term, 1904, and thereby increased the size of said road district No. 7 to two or three times its former size, and extending the west and northwest boundaries of the district from that of about a mile of a district to twelve to fifteen miles; that since the passage of said ordinance on September 10, 1901, the said city has not by ordinance or otherwise been made a part of or included in the said road district No. 7 as enlarged by the said Board at its December meeting, 1904; or as enlarged at the March meeting, 1910, and avers that by reason thereof the city of Cairo has never been a part of road district No. 7 since its enlargement by the said Board at its December meeting, 1904, aforesaid; that since the December meeting, 1904, the road district commissioners of said district No. 7 claim that the said city of Cairo still remains a part of such road district as enlarged, and have continuously levied and caused to be collected from the real and personal property within said district, including the said city road district tax, and are now engaged in having collected such tax for the year 1910, and avers that such taxes so levied are illegal, null and void; and that the road district commissioners have no jurisdiction or authority to levy or cause to be collected road district tax within the limits of the said city of Cairo, and that Alexander S. Fraser, County Collector, is now engaged in the collection of such taxes, and will at an early day proceed to collect said road district tax from the property of the complainants within said city and a large number of other taxpayers; that the tax so levied is the full rate of thirty cents on the one hundred dollars, and is illegal, null and void, and prays for a temporary writ of injunction restraining the said county collector and his agents, and the said road district No. 7 from the collection of any part of the said illegal road district tax assessed upon the property of complainants, or of any taxpayer within the said city who has become a party to the record in this suit, until the further order of this court; and that upon a final hearing the said injunction may be made perpetual.

On May 27th an order of court was granted directing the issuance of the temporary injunction in accordance with the prayer of said bill until the further order of the court. That the temporary writ of injunction was issued on June 1st and on June 5th the appellants filed a motion to dissolve such injunction, because, first, there is no equity on the face of said bill; second, the said bill is insufficiently verified; and, third, the complainants have a clear remedy, if any, in law. That on June 17, 1911, an order of court was entered overruling said motion to dissolve the temporary injunction, from which order this appeal is prosecuted.

It is contended by counsel for appellees that this court does not have jurisdiction to hear and determine this appeal; that as it relates to revenue it should be appealed to the Supreme Court. It is true, we have a statute requiring appeals from all ,cases relating to revenue to be made to the Supreme Court; this, however, has reference to final judgments and not to interlocutory orders, as no appeal could be prosecuted to the Supreme Court from an interlocutory order, but section 123 of the Practice Act of 1907 provides especially for - the reviewing by the Appellate Court of interlocutory orders overruling motions to dissolve injunctions and that no appeal shall lie or writ of error be prosecuted to review the judgment of the Appellate Court on any such appeal. Section 123 of chapter 110 of Hurd’s Revised Statutes for 1909.

This question was fully discussed and settled by the Supreme Court in the case of Craig v. Craig, 246 Ill. 449.

We are of opinion that the appeal from the interlocutory order herein was properly taken to the Appellate Court. '

The determination of this case, in our judgment, depends upon whether or not the city of Cairo after having become a part of road district No. 7 in the year 1901, was eliminated from said road district by the adding to such road district of other territory in the years 1904 and 1910, and counsel in their respective briefs have treated this as the controlling question herein. It is true that other questions are discussed but in the view that we take of this case this is the only question that it is necessary to consider.

It is claimed by counsel for appellees that as the provision, “As said district is now formed and established” is contained in the ordinance passed by the city of Cairo giving its consent to become attached to district No. 7, that such was only a qualified attachment, and that it became attached to the territory as it then existed, and that such territory could not be enlarged or diminished. We do not regard these words as a limitation upon the power of the commissioners to enlarge or reduce the respective road districts within their county.

Section 242, Chap. 121, Hurd’s Revised Statutes, 1908, provides: “The Board of County Commissioners of each county shall have full and complete power and jurisdiction to alter the boundaries of road districts and to change road district lines in their respective counties to suit the convenience of the inhabitants residing therein.” And following that, the law prescribes the manner in which such districts may be changed; and it is alleged in this bill, in substance, that the County Board in enlarging the road district complied with the statute in that respect.

Section 243 of the same Act provides:

“That hereafter all incorporated cities, towns and villages shall be excluded from all road districts now formed or to be formed in Counties not under Township organization in this State; provided, however, that such incorporated cities, towns and villages in Counties not under Township organization may by ordinance elect to be included in such districts; upon the filing with the County Clerk of such county a copy of such ordinance, it shall be the duty of the County Board of Commissioners at their first session thereafter to create such city, town or village into a road district or to make it a part of some road district already formed.”

It seems to us that the object of the Legislature was to place the formation of road districts in counties not under township organization, under the control of the Board of County Commissioners, except in cities, towns and villages, but that if a city, town or village should elect to be included in such road districts, that were to be made by this Board, then upon such Board accepting the election of the city, such city, village or town, as far as the road district is concerned, became as much the subject of control by this Board as any part of the territory within the. county; and the Board had the right to create such city into a separate district, if it desired so to do or to make it a part of some road district already formed.

It is not denied but the city of Cairo was at one time a part of road district No. 7, and we cannot see any reason why the rule should not apply that when it once became a part of that district it should always remain so until changed, as provided by law. If road district No. 7 could not be enlarged or diminished by the County Board without the consent of the city of Cairo then the city of Cairo could, at least in part, direct and dictate how the road districts with which it was connected should be formed, and to do this would render nugatory that part of the statute which gives to the County Board, “full and complete power and jurisdiction to alter the boundaries of road districts and to change road district lines in their respective counties to suit the convenience of the inhabitants residing therein. ’ ’

The position of counsel for appellees by the allegations of their bill, is, that in 1901, the city of Cairo was properly annexed to and became a part of road district No. 7 but that the words, “as said district is now formed and established” in some manner gave the city of Cairo the power to dictate what territory shall be added to district No. 7. We do not think that this clause is susceptible of any such construction, but if it were stated in plain and unmistakable terms that such power was to be exercised by the city it would be void for the reason that the city could only exercise such powers as were conferred by statute, and no such a right is conferred by this statute. By becoming a part of road district No. 7 the city of Cairo so far as it forms a part of such road district is ipso facto brought under and made subject to all the laws by which the municipality itself is governed and at once became a constituent part of that road district and was subject to the same law and policy that governed and controlled the remaining part of the district. McGurn v. Board of Education, 133 Ill. 122.

If the city of Cairo had desired to dictate as to whether or not the road district should be enlarged or diminished this power should have been conveyed to it by the Legislature and then exercised in terms plain and unambiguous, and no such power was given, no such exercise of power attempted, and immediately upon its becoming a part of this road district No. 7 it was subject to the laws and powers governing such district. Swift v. Kline, 163 Ill. 269.

We are of opinion that the Circuit Court erred in not sustaining appellants’ motion to dissolve the temporary injunction herein for want of equity.

It is ordered by the court that this cause be reversed and remanded with directions to the Circuit Court to sustain appellants’ motion.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    J. Smith Johnson et al., Plaintiffs in Error, v. Samuel H. Watson et al., Defendants in Error.
    1. Evidencie—burden to establish tuant of mental capacity. In an appeal to set aside a lease upon the ground that the lessor had been over-reached through and on account of his mental incapacity, the burden of proof is upon the complainant.
    2. Evidence—what does not establish mental incapacity. Impairment by age is not sufficient if the contracting party still retains a full comprehension of the meaning, design and effect of his acts.
    3. Verdicts—when not set aside. A court cannot undertake to relieve parties from their contracts or to make new contracts for them unless it appears from the evidence that such parties were, in fact, 'incapable of transacting the business.
    4. Appeals and errors—when finding of chancellor not disturbed. The finding of a chancellor will not be set aside as against the evidence unless clearly and manifestly so.
    Bill in chancery. Error to the Circuit Court of Jefferson county; the Hon. J. It. Creighton, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Noleman & Smith, H. Clay Horner and William T. Pace, for plaintiffs in error.
    Albert Watson, G. Gale Gilbert and Joel F. Watson, for defendants in error.
   Mr. Justice McBride

delivered the opinion of the court.

Plaintiffs in error filed a hill to set aside and have declared null and void certain leases hereinafter described and for other relief. The defendants, lessees, answered said bill and a trial was had thereon at the October term, 1910, of said court, and a decree rendered in favor of the defendants in error; from which decree plaintiffs in error prosecute this writ.

On April 7, 1884, Susanna Johnson and Washington S. Johnson executed a lease to Samuel H. Watson for- a part of lot 39, block 13 in Storm’s survey of the city of Mt. Vernon, Illinois, for a term of ten years beginning May 1, 1884, for which Watson agreed to pay as rent $1,000, payable annually and in installments of $100 each. Said lease provided that at the expiration of the term thereof the first party may purchase such buildings as the second party may then have erected thereon, at a cash value fixed by three disinterested men, under oath, one of whom shall be chosen by each party hereto and the third by the other two; or if they shall not elect to so purchase, this lease shall be extended for the further period of ten years on the same terms, provided that if at the expiration of any period of five years thereafter the first party shall demand a higher rate of rent than $100 per annum for said premises, then three disinterested persons to be chosen as hereinbefore provided, shall ascertain and fix the rental value of said premises, which value so fixed shall be binding upon the parties hereto until the final termination of this lease, unless modified by similar arrangements which may be made at the termination of each or any period of five years after the expiration of the original term of this lease.

And it was further provided by such lease that the taxes or special assessments levied on said lots shall be paid by the first parties and that-all taxes or special assessments levied or assessed on any buildings erected thereon shall be paid by the second party. That prior to May 1, 1891, the said Washington S. Johnson had become the sole owner of the real estate mentioned in said lease and in the leases hereafter described, by reason of the death of his mother, Susanna Johnson, and his brother, Fletcher Johnson. That on May 1,1891, the said Washington S. Johnson executed a lease to John H. Backaway for a term of 13 years for a portion of Lot 39, all of Lot 40, in said block 13, for a yearly rental of $242 and containing a provision for the renewal of the lease, similar to the former, except the period for renewal and the option to increase the rent was to be at the end of each period of 13 years. That on October 23, 1900, Washington S. Johnson executed a lease to L. L. Emmerson for 25 feet of said lot 39, for a term of 13 years at an annual rental of $125, and contained provisions similar to that of the other leases except that the period for the renewal of the lease and to exercise the option to increase the rent was made 13 years. Upon the said last mentioned lease appears the following endorsement :

“Mt. Vernon, Ill., Sept. 22, 1906.

Consent is hereby given for an extension of 13 years from Oct. 23, 1913, to Oct. 23, 1926, at an apnual rental of $150.00.

W. S. Johnson (Seal)

Accepted

L. L. Emmerson (Seal)

J. H. Backaway, witness.”

It is alleged in the bill that between the time of the making of the first lease and second lease above referred to, that Susanna Johnson, mother, and Fletcher Johnson, brother of Washington S. Johnson, died and that they had been the advisers of the said Washington S. Johnson in the making of the first lease and in the transaction of the business.

It is further alleged in the bill, and appears to be sustained by the evidence, that the said Washington S, Johnson did not at any time take advantage of the option given him in said leases, or any of them, to have the rental value of said property re-appraised upon the expiration of any of the periods.

The bill further alleges that at the expiration of the first period of ten years of the Watson lease, by reason of the mental incapacity of the said Washington S. Johnson and his inability to understand and comprehend the nature and substance of said lease or contract, he did not and could not exercise his said option at the expiration of the first or second periods of ten years, and purchase the said buildings and improvements thereon, or have the rent of said premises reappraised and fixed as provided might be done by such lease, and that said Watson well knowing the mental weakness of the said Johnson and the trust and confidence reposed in him by said Johnson, and contriving to overreach and defraud him continued in possession of said premises, paying the annual rental of $100 during all of said periods. That the said John IT. Rackaway was a friend of the said Johnson and a prominent business man, and one with whom said Johnson frequently consulted in regard to his business affairs, and in whom he reposed confidence and trust and well knowing the mental incapacity and weakness of said Johnson, and the trust and confidence imposed in him by the said Johnson, and contriving to wrong and defraud him fraudulently induced the said Johnson to enter into and execute the pretended lease above described as having been made to the said Rackaway. That at the expiration of the first period of the Rackaway lease, to wit, May 1, 1904, by which the said buildings could be purchased or the rents re-appraised said Johnson did not then and there have sufficient mental capacity to know and understand the nature of said contract, and that it was to his interest to purchase such buildings, or have said rental re-appraised. That on October 23, 1900, said L. L. Emmerson, in whom said Washington S. Johnson reposed trust and confidence, conspired and contrived with the said J. H. Rackaway to overreach and defraud said Johnson, and by the assistance of said Rackaway induced the said Johnson to make the said lease to the said Emmerson, and procured the said extension of said lease in September 1906, for a period of 13 years from October 23, 1913, and that the said Johnson was fraudulently induced to sign said endorsement under the impression it was a mere promise on the part of Emmerson to increase the rent during the second period mentioned in the lease; whereas, it was in fact an effort to secure an extension.

The bill also alleges that the endorsement was within the Statute of Frauds and void, and invoked the Statute of Frauds to avoid said extension.

The bill then avers that the values of property have increased very much since the execution of the said' leases and that the rental values have also greatly increased, and that the taxes on said premises have increased, and that the revenues derived from said premises on said leases amount to less than one per cent upon the real valuation of the lands; that by reason of the relation existing between said Johnson and the said Watson, Rackaway and Emmerson, respectively, and by reason of the mental incapacity of the said Johnson, the renewal clauses of the said leases of Watson and Rackaway were not binding upon Johnson and his heirs; and by reason of the mental incapacity of the said Johnson and the confidential relation with Emmerson, that the Emmerson lease was void. The bill then makes an offer to have the buildings and improvements appraised and that upon a sale that the said Watson, Rackaway and Emmerson be reimbursed for the value thereof, and asks for a partition of the premises; and that the said pretended leases together with the extensions may be declared null and void and a cloud upon the title of the plaintiffs.

The defendants Watson, Rackaway and Emmerson answered said bill admitting the execution of the leases but denying that Johnson was incapable of managing and caring for his own estate or of appreciating and understanding the leases in question because of his mental incapacity; and deny that each of them contrived to wrong or defraud the said Johnson or induce him to execute said leases for the purpose of defrauding him, but that such leases and extensions were each made of his own volition. And deny that the consideration for said leases at the time they were entered into was insufficient or inadequate, and aver that they erected valuable and permanent improvements upon the said land so leased; that the increased rental value of the said premises has advanced within the past few months but such advancement was caused by the securing of an additional industry,—the Mt. Vernon Car Manufacturing Company, at a cost to the citizens of about $125,000, and that without such improvement the real estate in question would have become of little or no value, and that the rent agreed to have been paid would have been high, and even excessive and deny that such leases and extensions are void; and deny that the complainants are entitled to the relief asked for.

It is contended by plaintiffs in error that the trial court erred in finding that Washington S. Johnson was of sound mind and memory at the time of the execution of the several leases and extensions, and at the periods provided in the respective leases by which a re-appraisement of the rental value of the property could be had. Upon this question there were about 28 or 30 witnesses examined upon behalf of the plaintiffs in error, and about 26 witnesses on behalf of the defendants in error. Many of the witnesses for the plaintiffs in error described' the deceased, Washington S. Johnson, as a man physically weak, somewhat eccentric, quiet in his ways, one who read a great deal, was posted upon the early history of the country, read the newspapers and kept informed upon the incidents of the day; some of them stating that he talked intelligently about such matters but that he had no knowledge of business affairs, and many of them stating that he was not of sufficient mental capacity to understand the ordinary business transactions, and to comprehend the leases in question. Many of the witnesses for the defendants in error stated that he was physically weak but that he was a man of fair business ability; read a great deal, kept himself posted upon the affairs of life and matters generally, and that he was capable of transacting the ordinary business affairs of life, and had sufficient mental capacity to understand and appreciate the terms of the leases in question.

The burden, in this case, was upon the plaintiffs in error to show the incapacity of the said Johnson, as alleged in their bill. It is sought to avoid the force of this position by saying that a fiduciary relation existed between these several defendants and the said Johnson, or at least such a relation existed between them, considering the mental weakness of Johnson, that the burden of showing that these several transactions were fair and that Johnson was not over-reached in the making of them and the extensions or in their neglect to have the lease rentals re-appraised. We fail to find sufficient evidence in this case to warrant us in saying that any such a relation existed between these defendants and the said Johnson, and cannot concur with counsel in their view in this matter. In the absence of undue influence, before a decree could, be rendered in favor of plaintiff he must show such a degree of mental weakness as renders a party incapable of understanding and protecting his own interests. Impairment by age is not sufficient if the contracting party still retains a full comprehension of the meaning, design and effect of his acts. A court cannot undertake to relieve parties from their contracts or make new contracts for them unless it appears from the evidence that such parties were in fact incapable of transacting the business.

In Kimball v. Cuddy, 117 Ill. 213, the Supreme Court of this State said: “The property owner, unless an idiot or a lunatic must be allowed to make his own division and dispose of his property. Nor does the fact that a party is physically unable to look after his property, or that his mind is enfeebled by age or disease, if not at the point of lunacy or absolute imbecility, take from him this power. It may be that such weakness makes him an easier victim of undue influence, and it is proper to consider it in that view; but weakness and opportunity for undue influence do not prove that undue influence has been exercised. ’ ’

In Willemin v. Dunn et al., 93 Ill. 511, the court said: “Mere mental weakness will not authorize a court of equity to set aside an executed contract, if such weakness does not amount to inability to comprehend the contract.” And this doctrine is fully sustained by the court in Argo v. Coffin et al., 142 Ill. 368; and Crosby v. Dorward, 248 Ill. 471.

It may be that if contracts were made at the present time with the knowledge of the increased valuation of the property of Mt. Vernon, that such could be made more advantageous to the property owner than these contracts were. Even the wisest could not determine the rapid increase in the values and rental values of such property that may have existed in this case, as such increases in valuation are easily attributable to outside influences over which neither of the contracting parties would or could have control.

It is quite probable that had values remained as they were at the time the contracts were made, that the leases would not have been regarded as unfair. The property at that time was vacant, produced no income, and the making of these leases did at least make it self-sustaining and productive of some revenue, which was undoubtedly an advantage to Johnson and may have operated as an inducement to secure lettings at even lower prices, and under such circumstances we cannot say that the making of such leases or the failure to have the re-appraisement at the stated times provided therein could be regarded by the courts as evidence of mental imbecility. Argo v. Coffin et al., supra.

Upon the Emmerson lease appears the following endorsement, to wit:

“Mt. Vernon, Ill., Sept. 22, 1906.

Consent is hereby given for an extension of thirteen years from Oct. 23, 1913, to Oct. 23, 1926, at an annual rental of $150.00,” and signed by both parties.

It is contended by counsel that this endorsement is within the Statute of Frauds and void; that it is meaningless by itself and does not describe the matter or thing intended. We cannot agree with counsel in this contention. We are of the opinion that when this endorsement was made upon the lease by the parties, and both parties signed it that it became a part of the lease and that it must be construed in and as a part of the lease. If we are right in this position then the premises were sufficiently described and the endorsement is not within the Statute of Frauds.

The evidence in this case was taken in open court. The chancellor had the opportunity of observing the witnesses and determining better what weight should be given to the testimony than can be done by a court of. review, and as has been frequently said by the Supreme Court of this state, unless the finding of the chancellor is manifestly against the weight of the evidence it should not be disturbed. Pinkstaff v. Steffy, 216 Ill. 406.

We cannot say that the decree in this case is of that character that would warrant this court in setting it aside, and the decree of the Circuit Court is affirmed.

Affirmed.


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    Maloney & Kratky, Appellees, v. Willie Perks, Appellant.
    1. Infants—how question as to what are necessaries determined. It becomes the duty of the court to determine whether or not articles furnished to a minor belong to a class that are necessaries and it is to be determined by the jury as a matter of fact that the articles furnished come within the particular class and are suitable to the condition and estate of the infant.
    2. Infants—what not within class of necessaries. Held, that there was no evidence in this record by which the court could determine that a motorcycle belonged to a class that were necessaries, and no evidence that the same was suitable to the minor’s condition and station in life or that it was in any way necessary for him to have or use in the prosecution of a business if he had one.
    Appeal from the Circuit Court of Pulaski county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Charles L. Rice, for appellant.
    C. S. Miller, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This was an action brought by appellees against appellant before a justice of the peace, for repairs and work done upon a motor-cycle, upon which judgment was rendered in favor of the appellees, appeal taken to the Circuit Court of Pulaski county and trial de novo had and judgment again rendered in favor of the appellees and against the appellant, from which he prosecutes this appeal and assigns as error the failure of the court to direct a verdict at the close of all of the evidence; the refusal of the court to set aside the verdict and grant a new trial herein; and the refusal of the court to grant appellant’s motion in arrest of judgment. These errors will all be considered together in the disposition of this case.

The evidence shows that appellant was the owner of a motor-cycle and that the same became ont of repair-and that he called upon appellees to furnish some repairs and perform some work upon the motor-cycle, also for gasoline, oil and express, making a total of $55.26; and the evidence shows that the charges made were the usual and customary prices for such work and materials and that they were furnished at the request of the appellant. There is also some evidence in this record tending to show that Nannie Higgins, the aunt of appellant, was liable for these goods and had something to do with requesting that they be furnished, but as the jury found for the defendant, Nannie Higgins, she is out of the case and the appeal is made alone by the appellee, Willie Perks.

The defense set up in this case is infancy at the time that the repairs were furnished, labor performed and goods supplied. The evidence discloses that the defendant was born October. 19, 1890, and was at the time of the supplying of the material and rendition of the services a minor.

There is no evidence in this record that the articles furnished were necessaries or that they were supplied under such circumstances as to make them necessaries for an infant. It is the settled law of this State that it becomes the duty of the court to determine whether or not the articles furnished belong to a class that áre necessaries, and it is to be determined by the jury as a matter of fact whether the articles furnished come within the particular class and are suitable to the condition and estate of the infant. The Supreme Court of Illinois, in the case of McKanna v. Merry, 61 Ill. 177, said: “There is no positive rule by means of which it may be determined what are and what are not necessaries. Whether articles are of a class or kind for which infants are liable, or whether certain subjects of expenditure are necessaries, are to be judged of by the court. Whether they come within the particular class, and are suitable to the condition and estate of the infant is to be determined by the jury as a matter of fact.”

Again, in the same case the court says: The court should have defined necessaries in some manner. Blackstone defines necessaries to be, necessary meat, drink, apparel, physic, and says that an infant may bind himself to pay for his good teaching and instruction, whereby he may profit himself afterwards. The articles furnished, or money advanced, must be actually necessary, in the particular case, for use, not mere ornament, for substantial good, not mere pleasure, and must belong to the class which the law generally pronounces necessary for infants. The courts have generally excluded from the term ‘necessaries,’ horses, saddles, bridles, pistols, liquors, fiddles, chronometers, etc. It has been held, however, that if riding on horseback was necessary to the health of the infant, the rule was different.”

Again, we find it to be laid down as the law concerning this subject, “The question as to what are necessaries is a mixed one of law and fact; it is a question for the court to decide whether certain subjects of expenditures are necessaries and what classes or general description of articles are necessaries; and it is for the jury to determine whether the particular articles, etc., fall within any of these classes, and whether they were actually necessary and suitable to the estate and condition of the infant, and were furnished under such circumstances as to authorize a recovery. The quantity, quality and value of what was furnished is of course a question for the jury.” Cyc, Vol. 22, p. 597-598.

Inasmuch as it has been determined by the court of this State that horses, saddles, bridles, etc., are generally excluded from the term “necessaries,” then we think that with much greater reason a motor-cycle would be excluded from the term.

There being no evidence in this record by which the court could determine that this motor-cycle belonged to a class that were necessaries, and no evidence that the machine was suitable to the condition and station in life of the appellant, or that it was in any manner necessary for him to have, or use in the prosecution of a business, if he had one, by which a jury could determine whether it came within the particular class and was suitable to the condition and estate of appellant, then it would necessarily follow that there was no evidence upon which a proper judgment could have been rendered in this case at any stage of the case after the appellant was shown to be an infant, and about which there was no dispute.

The verdict of the jury and judgment of the court in this case were unwarranted under the testimony, and the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed cmd remanded.


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    The People of the State of Illinois, Defendant in Error, v. Felix Viskniskki, Plaintiff in Error.
    1. Informations'—what 'does not affect validity of. If an information is filed by and in the name of the state’s attorney, it is sufficient, without the appending of an affidavit.
    2. Gambling—ivhat proofs sufficient in prosecution for Tenowingly running premises for purpose of. If it appears that the building in question was within the jurisdiction of the court it is sufficient; the exact location of such building need not be alleged or proved.
    3. Appeals and errors—when rulings upon evidence not saved for review. In the absence of an exception the ruling of the ■ court in excluding a witness from testifying is not subject to review.

      4. Appeals and errors—when assignment deemed waived. An assignment of error calling into question the propriety of an instruction should be argued by pointing out wherein the instruction is improper.
    Error to the County Court of White county; the Hon. K. C. Ronalds, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    I. T. Spence and Claude O. Ellis, for plaintiff in error.
    James R. Williams and William L. Martin, for defendant in error.
   Mr. Justice McBride

delivered the opinion of the court.

The plaintiff in error was convicted in the County Court of White county of having knowingly rented his rooms for the purpose of keeping- a common gaming house, and was sentenced to pay a fine of $150, and the costs of suit; to reverse which judgment this writ of error is prosecuted.

This case was before this court at the April term, 1909, and reported in 155 Ill. App. 292, and the judgment reversed because of error in one of the instructions. The cause was re-tried by the County Court of White county upon the fourth count of the same information, which charged that Felix Viskniskki on or about the 15th day of December in the year 1908 at and within the county in the State aforesaid did unlawfully then and there knowingly rent tp one Mark Huff certain rooms in the rear of the second story of the brick building owned by him, the said Felix Viskniskki, and situated on the southwest half of the northeast half of lot 96 in the town now city of Carmi, in said county and state, for the purpose then and there of keeping a common gaming house contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the People of the State of Illinois. The defendant was again found guilty upon said count by the jury.' Motion for a new trial was overruled and judgment entered on the verdict, ordering’ that the defendant pay a fine.of $150 and costs.

It is contended by counsel for plaintiff in error that the affidavit attached to the information is not sufficient. Without discussing the sufficiency of the affidavit it is enough to say that the information was filed by and in the name of the state’s attorney, and this is all that is required by the statute, which provides that, “All offenses cognizable in county courts shall be prosecuted by information of the state’s attorney, attorney-general or some other person, and when an information is presented by any person other than the state’s attorney or attorney-general, it shall be verified by affidavit of such person.” Sec. 207 of Chap. 37 of the Revised Statutes, Hurd’s Edition 1909. This statute is plain and leaves no doubt in the minds of this court that the state’s attorney had the right to file the information even without an affidavit. This question was passed upon in the case of Giroux v. People, 132 Ill. App. 562, and was there determined that the information filed by the state’s attorney did not require the affidavit of any person. We do not regard this point as being well taken.

It is stated by counsel, but not argued or any authorities cited, that the manner of selecting the jury was unfair to the accused, because there were only eleven of the regular jurors present and the court directed another juror to be selected from the bystanders. This seems to be in accordance with the manner of selecting jurors in the county court, as provided by section 200, chapter 37 of the Revised Statutes.

The next objection urged by plaintiff in error is that the information charged that Felix Viskniskki rented to Mark Huff for the purpose of keeping a common gaming house, the rooms in the rear of the second story of the brick building owned by him, the said Felix Viskniskki, and situated on the southwest half of the northeast half of lot No. 96, in the town now city of Carmi in said county and state and that the evidence shows (if anything) that the rooms were in the two story hrick building owned by him situated on the west half of the east half of said lot 96, and that in as much as there is a variance in the description found in the complaint and the evidence, that this conviction cannot stand. The statute under which this prosecution is conducted does not require before a conviction may be had that the renting of a building for the purpose of keeping a gaming house applies to any particular building, or class of buildings, but refers to any building, and, as we view the law, it was not necessary to give the exact location of the building, but if it appeared to be a building and the transaction appears to have taken place within the jurisdiction of the court then this would be sufficient, and if that be true the particular description here referred to would be surplusage and not necessary to be proven.

It is said in the case of Bergstrasser v. People, 134 Ill. App. 609, “Plaintiffs in error next contend that the verdict should have been set aside because the information charged that the slot machine was kept at ‘532 Main street in the city of Quincy, ’ while the evidence showed that such machine was kept in the saloon of plaintiffs in error in said city without the street or number being fixed. If the act complained of in the information had been unlawful in one place and lawful in another, then its exact location would have had to be charged and proven, as was declared in State v. Turnbull, 78 Me. 395, and Commonwealth v. Heffron, 102 Mass. 148, cited by plaintiffs in error, but where the offense charged in the information consists in doing something which is unlawful at any place,-then it is not necessary to charge or prove the exact place where the act was committed, if committed within the jurisdiction of the court. ” The case of Durham v. People, 4 Scammon, 172, and Sntton v. People, 145 Ill. 286, are cited by the court in support of this position. But if the place were to be proven, as alleged, we are inclined to the opinion that there is sufficient evidence in this record to fix the place. The statement in the complaint is that the building was situtated upon the southwest half of the northeast half, and the evidence, as shown by the record, is that it was situated upon the west half of the east half of said lot 96. A portion of this ground is common to both descriptions and unless something was shown to the contrary it might be reasonably inferred that the building was located upon that portion of the ground, especially in view of the second instruction given on behalf of the People, which informs the jury that if they believe from the evidence that the plaintiff in error did knowingly rent to Mark Huff certain rooms in the building mentioned in the fourth count of the information for the purpose of then and there keeping a common gaming house, then they should find the defendant guilty. We think the building was sufficiently described to give the plaintiff in error notice of what he was being prosecuted for, and 'during the trial the particular building was frequently referred to by both parties, so that we think there is no misunderstanding or miscarriage of justice on account of the description of the building.

Again, it is said the court erred in permitting the testimony of Gfus Patrick and Harry Cleveland to go to the jury. We think there was no error in this because it appears from-the evidence that about six years before this the plaintiff in error had rented the same rooms to Mark Huff to be used for the purpose of keeping a gaming house, and the testimony of these witnesses was fully within the rule laid down by this court in its former opinion.

Again, it is claimed that the verdict is against the weight of the evidence. There was evidence in this case tending to show that the plaintiff in error was advised of the purposes for which Mark Huff desired to rent the rooms in question, and that evidence, although coming from Mark Huff, is corroborated by Clark Bolden that at the time the room was rented that the plaintiff in error offered to sell Huff a poker table and a sack of poker chips and that Huff told him he would take them but that he could not pay for them right now. The evidence further discloses that the plaintiff in error had a room upon the same floor with this room during all the time that Huff was there and certainly saw men going to and from Huff’s room, and if Huff had rented it simply for a room in which to lodge it looks as if the fact that men were passing to and fro from the room would be enough to excite suspicion in the mind of any reasonable person that the room was being used for something else beside a lodging room. It is true that there is evidence in this record tending to impeach the veracity of Huff and to sustain the character of the plaintiff in error but these were matters for the jury to pass upon. They saw the witnesses, heard them testify, observed their bearing-while upon the stand, and we think that they were better calculated to determine whether or not the plaintiff in error rented this room to Mark Huff, knowingly, to be used for gambling purposes.

Again, it is claimed by plaintiff in error that the court erred in refusing to permit his daughter, Florence, to testify as a witness in this case. A rule was entered requiring the exclusion of all witnesses from the court room during the trial, and the court for that reason refused to permit the witness to testify, and when the objection was sustained to her testifying there was no exception taken to the ruling of the court, and for that reason, if no other, the question cannot be considered.

Counsel for plaintiff in error criticises the second instruction given on behalf of the defendant in error and says it is faulty as to venue and mis-states the law but does not tell in what particular it is faulty; we are not able to perceive that there is error in this instruction. It directs the jury, that if the plaintiff in error within eighteen months prior to the filing of the information within the county of "White did knowingly rent to the witness Mark Huff certain rooms in the building mentioned in the fourth count of the information for the purpose of then and there keeping a common gaming house, they should find the defendant guilty. It was required by this instruction not only that the plaintiff in error should rent the room knowingly for such purposes but it must have been rented within the county of White. -

It is also contended by counsel that the fourth instruction given on behalf of the defendant in error was faulty in using the word “room” and says that the word “room” is not mentioned in the statute. The word “building” is mentioned and if he rented a room or rooms in the building this we think'would come clearly within the provision of the statute.

The plaintiff in error has had two trials and in each instance has been found guilty by a jury of his county. He has been fairly tried and as there appears no reversible error in this record the judgment of the lower court is affirmed.

Affirmed.


text:
    Kathryn E. Cowen, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    1. Evidence—what not part of res gestae. Statements made to and by a conductor after an accident are not part of the res gestae, and should not be admitted.
    2. Evidence—when as to pecuniary condition improper. In an a?tion for personal injuries it is not proper to show the impecuniosity of the plaintiff.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Barthel, Farmer & Klingel, for appellant.
    W. N. Horner and Turner & Holder, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This is an appeal from the Circuit Court of St. Clair county. The trial in the Circuit Court resulted in a verdict and judgment for the appellee in the amount of $6000, to reverse which this appeal is prosecuted. The appellant is engaged in operating street cars between East St. Louis, Illinois, and St. Louis, Missouri, over the Eads Bridge. On the evening of October 11, 1910, about the hour of sis o’clock, the appellee became a passenger on one of appellant’s street cars near the east end of the bridge, to be carried to the St. Louis side. This car was provided with two long seats for passengers, one on each side of the car, with an aisle between, so that the occupants of the .two seats faced one another. When appellee entered the car the seats were all occupied and she passed through the car to the front end and stood with her face towards the west, in the direction the car was moving, supporting herself by holding on the handle of the sliding door. When the car had reached about the center of the bridge it encountered a vehicle upon the track which required it to stop; the car stood there a short time, estimated from one to ten minutes, when a car of the appellant going in the same direction approached from the rear and ran into the car on which appellee was a passenger and by reason of the collision appellee was thrown down and injured. There was some controversy in the testimony as to the manner of her fall. Some of the witnesses claim that she fell her full length upon the floor of the ear and struck her head, and that other passengers fell on her; and other witnesses describe it somewhat differently.

The testimony indicates that she was rendered at least partially unconscious for the time being by reason of the fall. She was taken to her home in St. Louis by some of the ladies who were in the car and they say she was apparently in a nervous and dazed condition. There seems to have been no dispute as to the liability of the appellant. It appears from the statement of counsel for appellant, preserved in the record, that he admitted to the jury that -the defendant was negligent and that the plaintiff was without fault, and that the defendant was liable to the plaintiff for a fair compensation for the injuries which she had actually received. The real question that was contested, was the extent of appellee’s injury and the amount of damages that she was entitled to receive, and upon this issue the trial was had and resulted in a judgment in favor of appellee for $6,000.

Counsel for appellant claims that the court erred in admitting improper evidence in behalf of the appellee and over the objections of the appellant. The first evidence complained of were statements made by persons upon the car after the appellee had received her injuries. A Mrs. Favreau was permitted to state that after the accident she asked the conductor to get aid for the appellee and was then asked to state what the conductor said, and answered, “I said, ‘Conductor please see to this lady, she is very badly hurt;’ he said, ‘Let her go home on a car.’ ” Another witness, Adele Hartman, was asked this question, “You may state whether anything was said to the conductor about sending her home,” and she replied, “Why, we asked him to take her home and he refused to get a carriage for her and said she could go home on a car.” Objections and exceptions were preserved to these questions and answers, and it is now contended that they were not admissible and that the appellant was prejudiced by the admission of them, because the statements of the witnesses made at the time the appellee was represented as being badly hurt and that the conductor was not willing to give her any attention, even though she was badly hurt, were immaterial and prejudicial. These statements are not admissible upon the ground that they are part of the res gestae.

In the case of McMahon v. Chicago City R. R. Co., 239 Ill. 334, the Supreme Court says: " This court has said that the true inquiry, according to all author!-' ties, is whether the declaration is a verbal act, illustrating, explaining or interpreting other parts of the transaction of which itself is a part, or is merely a history or part of the history of a completed past affair.”

In the case of Lecklieder v. Chicago City R. R. Co., 142 Ill. App. 139, the plaintiff was permitted over the objections of defendant to state that the conductor “said that he caught my foot with his handle raising the lever and pulled me off; that is just what he said.” And again, in the case of C. & N. W. Ry. Co. v. Fillmore, 57 Ill. 265: “It was said to be error to allow the declarations of the conductor of a train, made after the accident had happened, to be introduced to the jury; whatever knowledge the conductor has as to the condition of the bridge at the time should have been stated by himself.” We do not believe that these statements were admissible, as the principal inquiry in the trial was the extent of the appellee’s injury, and to permit the hearsay statements of third parties that she was badly injured to be introduced in evidence was certainly prejudicial, or at least may have been. Besides, these declarations did not attempt to explain the act itself but were conclusions of third parties as to the effect that the act had upon the appellee. It was sought by counsel for appellee to justify the admission of this evidence upon the ground that it was the duty of appellant to take care of appellee after she was hurt, and several authorities are quoted showing the liability for failure to take care of the injured party, but those were cases where the injured party prior to the injury had been placed in charge or was in control, in some manner, of the railroad company, and they neglected to perform their duty in taking care of such party and as a result of their failure to take care of the party an injury resulted, and the action was based upon their negligence in failing to care for such parties which resulted in their injury; but no such state of facts arise in this case. The action is not based upon their failure to take care of the appellee, and could not have been as she was taken care of by the ladies in the car. We do not believe this evidence is admissible, and the conduct and language ascribed to the conductor were calculated to prejudice the minds of the jury against the appellant.

The next objection urged is that appellee was permitted, over the objections of appellant, to testify that she was a poor person and had no other means of support except her earnings. It appears that she was asked the question, “I will ask you to state if you have any other means of support except your earnings'? A. No sir, I have no other means of support.” She also stated that she discharged her nurse “because I could not afford to retain her.” Motion was made to strike out this answer, which was overruled by the court. And again, Dr. Fairbrother was asked the question, “Q. Now Doctor, supposing a young lady who is compelled to earn her living, no parents and unmarried, receives an injury which reduces her weight from 132 to 100 pounds, or less, if she is compelled to resume her duties in order to support herself at a time when she is not physically able and brooding over such things is liable to produce such habit which you have described,” to which question specific objections were made but overruled by the court. The only purpose that these questions and the answers given could serve in the trial of this case was to show to the jury that the appellee was a poor person and thereby secure from the jury sympathy and an increased verdict for appellee. The admission of such testimony has been frequently condemned.by both the Supreme and Appellate Courts, and for this error alone where verdicts for large amounts had been secured, the courts have not permitted them to stand but have said that the rule under which damages are allowed in cases of this character is actual compensation for the injury received, and that the injured person is entitled to that and nothing more. In the case of the City of Chicago v. O’Brennan, 65 Ill. 160, evidence of this character is condemned in very strong terms. And in the case of Jones & Adams Co. v. George, 227 Ill. 64, the court says: “On the trial of this ease appellee was allowed to prove that he was a married man and had three children. The evidence was objected to and the objection overruled. The damages recoverable in this case can -only be compensatory. The domestic relations, the financial standing or circumstances of the parties are therefore irrelevant. 1 Elliott on Evidence, Sec. 178; Barbour Co. v. Horn, 48 Ala. 566, 85 Am. St. Rep. 835, and note, where many other authorities are collected; City of Chicago v. O’Brennan, 65 Ill. 160; Pittsburgh, Fort Wayne and Chicago R. R. Co. v. Powers, 74 id. 341; City of Joliet v. Conway, 119 id. 489. The error in admitting this evidence is virtually admitted by appellee and was recognized by the Appellate Court, but it was thought that the remittitur of $1,500 ought in some way to cure this error. We cannot assent to this view. Evidence of this character not only tends to enhance the damages, but it is calculated to arouse a sympathy for appellee which is liable to unconsciously influence a jury in the decision of other controverted questions of fact in the appellee’s favor. It would be a dangerous precedent to hold that a party might introduce irrelevant testimony which would appeal to the sympathy, passions or prejudices of a jury in such a way as to insure him the verdict on «all doubtful questions of fact, then permit the trial court to estimate how much of a gross sum awarded as damages was due to such irrelevant testimony and deduct that from the total verdict and render judgment for the balance, and thus cure an error but for which the verdict might have been in favor of the other party. ’ ’

In the case of the Illinois Central R. R. Co. v. Seitz, 111 Ill. App. 242, the court reversed a judgment because counsel in his opening statement told the jury of the poverty of his client, and the judge in his comments says, “There is enough natural and inherent prejudice in the minds of jurors against railroads and other corporations without having it augmented by direct and improper appeals calculated to arouse the sympathy, passion or prejudice of jurors. A lawyer who tries his case in a proper manner, observing the ethics of the profession, is at a great temporary disadvantage when trying a cause against counsel who resort to improper language to obtain a verdict. Verdicts thus obtained generally are and always should bé short-lived. Trial courts should set them aside as often as they are obtained.”

The appellee has sought to justify by reference to a class of cases in which exemplary damages may be allowed, such as assault and battery, slander and the like, where malice enters into the negligent acts complained of, but these cases have no application where it is sought to recover compensation for injuries received as the result of the negligence of the defendant. Other errors have been assigned as to the admissibility of evidence and the conduct of counsel in the trial of this case but we do not deem it necessary to consider these questions, as upon another trial the evidence will probably be confined to the determination of the actual injuries^ and the proof of such future damages as the evidence may show to be reasonably certain to follow, and many of these matters thereby obviated. Amann v. Chicago Traction Co., 243 Ill. 263.

It seems to us that in another trial of this case the question for trial need be but a simple one, and that is, the extent of the injury appellee actually received and the damages resulting therefrom. Many of the questions complained of in this record can and should be avoided.

For the errors assigned the judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    John Tilton, Appellee, v. Harry Musgrave et al., Appellants.
    1. Appeals and errors—when finding "by court not disturbed. A finding of fact by the court will not be set aside as against the evidence unless clearly and manifestly so.
    2. Appeals and errors—when admission of evidence cannot be complained of. If testimony is received without objection its admission cannot subsequently be complained of.
    3. Negotiable instruments—what valid consideration. An assignment of a contract is a valid consideration for a promissory note.
    Appeal from the Circuit Court of Wabash county; the Hon. Jacob R. Creighton, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    H. M. Phipps, for appellants.
    Howard P. French, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

Judgment, was rendered in favor of the appellee, and against the appellants at the April term, 1911, of the Circuit Court of Wabash county, from which judgment they prosecute this appeal.

On April 29, 1907, Noah C. Bainum entered into a contract with the appellee, John Tilton, whereby the said Bainum agreed to convey to the said Tilton lot 181 in the Sunnyside addition to the city of Mt. Carmel, Illinois, by the terms of which the said John Tilton agreed to pay $300, $100 in labor and the balance to be paid at the rate of $5 per month, or a total of $60 per year until the balance of the $300 was paid.

The contract further provided:

"And in case of the failure of the said party of the second part to make either of the payments or any part thereof or perform any of the covenants on his part hereby made and entered into, this contract shall at the option of the party of the first part be forfeited and determined, and the party of the second part shall forfeit all the payments made by him on this contract, and such payments shall be retained by the said party of the first part in full liquidation of all damages by them sustained and they shall have the right to re-enter and take possession of the premises aforesaid.”

The contract further provided that the time of payment shall be the essence of the contract and that the covenants and agreements contained in said contract shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties.

' On the 13th day of November, 1908, John Tilton duly assigned all of his right, title and interest in and to the foregoing contract to Harry Musgrave, in consideration of which assignment, Harry Musgrave and Nellie Musgrave, his wife, executed and delivered to John Tilton their promissory note bearing date November 13, 1908, in and by which they promised to pay, twenty months after date, to John Tilton or order, $100, payable in monthly payments of $5 each, including a reasonable attorney’s fee if not paid at maturity. At the time that John Tilton made the assignment of this contract to Harry Musgrave a credit of $100 was placed thereon, being the amount that had been paid, by Til-ton to Bainum, for the building of a concrete sidewalk.

Musgrave was in possession of this lot by permission of Tilton at the time of the assignment and continued in possession thereof afterwards. In April, 1909, Musgrave offered to make payments to Bainum upon this contract but Bainum refused to receive the payments thereon, and refused to recognize the contract. Bainum nor any one for him, as appears from the evidence, had declared any forfeiture of this contract prior to the assignment made by Tilton to Mus-grave.

The appellants in this case offer as a defense to this note a failure of consideration, alleging that Tilton had no interest in the contract at the time it was assigned.

The trial judge, however, found that Tilton did have an assignable interest in this contract at the time he made the assignment on November 13, 1908, and we think the findings of the trial judge were warranted under the evidence in this case.

The contract by its terms was binding not only upon the parties thereto but their assigns, and while it gave to Bainum the option to declare a forfeiture for failure to make payments, there had not been any forfeiture declared up to that time and this option had not been exercised. Tilton was then in actual possession of the property, by Musgrave, and no attempt was made, or even a suggestion of forfeiture by Bainum, until several months after this assignment, and no effort was made upon the part of Bainum to re-enter and take possession of the lot. When this assignment was made it was valid and binding and was of value to the assignee. Rigdon v. Shirk, 127 Ill. 411. The assignment of the contract was certainly a valid consideration for the note. Speer v. Fuller, Am. Decisions, Vol. 28, 391; Cyc. Vol. 9, 314.

Even if Bainum afterwards refused to receive payment of the amounts due upon the contract from Mus-grave, this would not justify Musgrave in abandoning the contract and defeating Tilton in the collection of his note. If Musgrave, before a forfeiture was actually declared, was ready and offered to pay Bainum such amounts as were- due then he certainly had a right that could be enforced under this contract.

Again, it is claimed that the court erred in permitting the witness M. IT. Munday to testify as to the amount of a reasonable attorney’s fee in this case without first showing that he was acquainted with the value of such services. To the admission of this testimony counsel for appellants made no objection, specific or general, and cannot now assign as error the admissibility of this evidence.

We are unable to perceive any substantial error in this record and think that the trial court did right in rendering judgment in favor of appellee upon the note in question, and the judgment of the lower court is affirmed.

Judgment affirmed.


author: Mr. Justice Shirley

text:
    T. B. Wright & Sons, Appellees, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Statutes—how to he construed. In the interpretation of a statute consideration should be made of all the parts together, and not of one part by itself, to determine the object and purpose of the enactment, and it should be so construed if possible that the whole may stand and every part have some force and meaning.

      2. Liens—act as to liens upon railroads construed. Keld, that it was the purpose of this act to give a subcontractor three different remedies either of which he might pursue.
    3. Liens—what essential to establishment by subcontractor against railroad. In proceeding by either of the three remedies given by the Act of 1872 the subcontractor can in no event enforce a lien against the property of the railroad company except where the company is indebted to the original contractor.
    4. Liens—right of railroad to pay contractor. A railroad company has the right to pay its contractor before notice of a subcontractor’s claim for lien.
    Bill in equity. Appeal from the Circuit Court of Wabash county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed March 21, 1912.
    P. J. Kolb, for appellant; Glennon, Cary, Walker & Howe, of counsel.
    E. B. Green and Theo. G. Risley, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellees filed a bill in equity against appellant to enforce a lien for material furnished a corporation named Widell Finley Company, a contractor, to perform concrete work for appellant upon its line of railway. The court found appellees entitled to a lien upon all the property of appellant, real, personal and mixed, for the payment of the sum of $1,839.90 and so decreed.

The evidence disclosed that on July 17, 1905, the Widell Finley Co., hereinafter called the contractors, entered into an agreement with the Cairo, Vincennes & Chicago Railway Co., hereinafter called the railway company, to construct certain tracks and bridges and to reduce grades along the line of said railway between Allendale and Harrisburg, Illinois. The masonry to be used in the construction was to be of concrete and the contract provided the work should be accepted by appellant and certified by it in writing. It further appears that in the year 1889 the said railway company entered into an operating contract with appellant whereby the said railway company leased to appellant the line of railway upon which the work of said contractor was to be performed for a period of forty-nine years, and at the time of entering into the contract for the work by the railway company and during the time appellees furnished material, appellant was operating said railway under said lease.

The lease among other things provided appellant should maintain the entire railway property in as good condition as it then was. The answer of appellant admits that it determined as such lessee to reconstruct and rebuild the said railway in the name of the railway company, and for that purpose the railway company entered into the contract with the said contractor for the construction of bridges and culverts; that the work was to be done under the control and direction of appellant’s engineers and appellant was to pay for the work.

The evidence shows that appellees furnished to the contractor a lot of material of the value of $1,796.68, which was reduced by credits to the sum of $1,455> being the amount due at the time of the trial not including any interest. The evidence shows the material so furnished was used in constructing buildings for housing laborers and in making concrete forms for bridges and culverts. After the contractor had been for some time engaged in the work it failed and appellant took up the work and finished it.

It is contended by appellant that the contractor hav- ■ ing failed to complete the contract the suit should have been brought under section 7 of the railroad lien law instead of section 2 which is relied upon by appellees, and that appellees mistook the remedy in not proceeding under section 7.

The act of 1872 entitled “Liens Upon Railroads” contains eight sections. The purpose of the act as shown in the title was “to protect contractors, subcontractors and laborers in their claims against railroads, contractors and subcontractors.” The first section provides for a lien in favor of persons who contract directly with the railroad company and who furnish material, supplies or labor necessary for the construction, maintenance, operation or repair of the road. The lien is given against all the property of the railroad and is superior to all mortgages or other liens which accrue after the commencement of the delivery of the material or of the labor furnished.

Section 2 relates to subcontractors and those who furnish material and labor to the contractor and reads as follows:

“Every person who shall hereafter as subcontractor, material man or laborer furnish to any contractor with any such railroad corporation any fuel, ties, materials, supplies or any other article or thing or who shall do and perform any work or labor for such contractor in conformity with any terms of any contract express or implied which such contractor may have made with any such railroad corporation, shall have a lien upon all the property real, personal and mixed, of said railroad corporation: Provided such subcontractor, material man or laborer shall have complied with the provisions of this act; but the aggregate of all liens hereby authorized shall not in any case exceed the price agreed upon in the original contract to be paid by such corporation to the original contractor:

“And provided further, that no such lien shall take priority over any existing lien.”

Sections 3 and 4 provide for notice by the subcontractor to the railroad company. Section 5 provides for a suit at law (after the above notice) against the corporation, or the corporation and original contractor jointly, and for judgment and execution. And section 6 for attorneys’ fees in such cases to be taxed as costs.

Section 7 provides that if the original contractor fails to complete his contract any person entitled to a lien may file a petition in a court of record in any county through which the road may be constructed against the corporation and the contractors, setting forth the nature of his claim, the amount due as near as may be, and that the contractor has failed to complete his contract. This section then requires notice by publication of the filing of the petition and when the writ issued thereon is made returnable and then provides that all persons entitled to liens may enter their appearance, interplead and have their claims adjudicated. It further provides that all persons who establish their claims shall have a decree against the corporation and the contractor for the respective amounts to which they are entitled and the decree shall have the same force and effect as in other cases. Section 8 is a limitation section not material to be considered.

It is an elementary rule in the interpretation of statutes that construction should be made of all the parts together, and not of one part by itself, to determine the object and purpose of the enactment and they should be so construed if possible that the whole may stand and every part may have force and meaning. Endlich Interp. of Statutes, 35; 4th Gil. 221; Chatham v. Mason, 53 Ill. 411; Decker v. Hughes, 68 id. 33.

After an examination of the several sections referred to we conclude it was the purpose of the act to give a subcontractor three different remedies by said sections two, five and seven, either of which he may pursue. It is true section 2 provides no specific remedy to enforce the lien which the section gives the subcontractor after complying with the provisions of sections 3 and 4 which provide for notice and service thereof, but it in plain terms furnishes the lien and as it does not furnish a remedy one is implied. “When a statute creates a new obligation * * * a corresponding right is thereby impliedly given either to the public or to the individual injured by the breach of the enactment,” (Endlich Interp. of Statutes, 463) and as the enforcement of a lien is an equitable remedy he may have his remedy by filing a bill in equity. Pom. Eq. Jur. 112, 171:

The remedy provided by section 2 is against the railroad corporation exclusively; that provided by section 5 is a suit at law either against the corporation alone or against the corporation and contractor j ointly while section 7 provides a remedy against the corporation and contractor jointly in favor of persons entitled to liens and the right is conferred only in cases where the contractor has failed to complete his contract.

We are of opinion that where the contractor fails to complete the work the subcontractor is not confined to section 7 as an exclusive remedy but may proceed under section 2.

In proceeding by either remedy, however, the subcontractor can in no event enforce a lien against the property of the railroad company except where the company is indebted to the original contractor by the terms of its contract with him. The proviso in section 2, supra, under which this suit was brought, provides that “the aggregate of all liens hereby authorized shall not in any case exceed the price agreed upon in the original contract to be paid by such corporation to the original contractor.” There being no provision of the statute which prevents the railroad company from paying the contractor for work performed before notice of a claim for lien, it may do so and discharge itself from any further obligation to pay the subcontractor. Sampson v. Buffalo N. Y. and P. R. Co., 13 Hun (N. Y.) 280.

The evidence is undisputed that the contractor when it became bankrupt in February, 1906, did no further work and left its contract uncompleted. At this time it had been overpaid on its contract the sum of $1610.-68. The railroad company had retained the sum of $4880, being ten per cent of the estimates earned by the contractor for work performed, so that when the work ceased the railroad company had in its hands of money earned by the contractor after deducting the overpayment of $1610.68, the sum of $3269.32. It is further shown that the railroad company took charge of the work and finished it at a cost of $9500.78 in excess of the amount of the contract price and after the amount retained had been expended. It is further shown the railroad company expended this sum economically and judiciously.

Paragraph 22 of the contract between the railroad company and the contractor provides:

“If the contractor shall at any time fail or refuse to comply with any of the provisions of this contract to be determined by the engineer of the company, the company shall have the right and power to cancel and annul the same in which event the contractor shall have no claim or demand whatever upon or against the company for damages or compensation for work or material done or furnished or for any portion of the percentage retained on monthly estimates and the company shall have the right, power and authority to take possession of and hold said work and all materials furnished under this contract and to retain and appropriate to its own use as liquidated damages all money which may then be due to the contractor including said percentage and the company shall be absolutely and forever released from all liabilities to the contractor therefor.”

By this paragraph of the contract and under the evidence the railroad company had the right to retain the $4880 percentages and nothing was due and owing the contractor. This being so, no lien could be enforced by either the contractor or its subcontractor. Weidle v. Elgin, Joliet & Eastern Ry. Co., 152 Ill. App. 292. It is claimed by. appellees that the railroad company having paid the contractor $4800 for work performed, it was its duty under paragraph 23 of the contract to protect appellees, and it is argued such payments without such protection were wrongful. As we have said the railroad company had the right to pay the contractor before notice of appellees’ claim for a lien and while paragraph 23 of the contract provided that the engineer of the railroad company might require the contractor to furnish him a pay roll showing the amount due subcontractors and might at his option pay them and deduct the amount from the sum due the contractor, he was not bound to do so and the railroad company had the right to pay the contractor and relieve itself from any obligation to pay the subcontractor before notice of the subcontractor’s claim.

It is argued that the contractor did not suspend the work by reason of any voluntary act of its own but was forced into involuntary bankruptcy; that therefore there was no breach of its obligation contained in paragraph 22, and the railroad company had no right to appropriate the percentages retained. The percentages were retained before the contractor became bankrupt and although the bankruptcy proceedings suspended the work this did not deprive appellant of the right to retain the percentages for the failure to complete the contract. If such percentages had not been exhausted as they were in finishing the work a court of equity might treat them as a penalty and appropriate any sum left to the payment of subcontractors entitled to liens.

In support of the claim of appellees that their lien which was inchoate prior to the service of notice.took effect from the time they began furnishing material and that the payment of estimate to the contractor of $4800 thereafter without protecting appellees was wrongful, the case of St. L. & P. R. R. Co. v. Kerr, 153 Ill. 182, is relied on.

The question in that case was one of priority of liens and it was held that the subcontractor’s lien attached as against a mortgage lien executed by the railroad company and recorded after the work commenced. This holding was in conformity with paragraph 2 of the statute supra, which provides “that no such lien shall take priority over any existing lien” and it is said in the opinion the words “existing lien” manifestly relate to the time the work is begun. We are of opinion the case cited has no application to the payment of estimates by the railroad company to the contractor before notice of the subcontractor’s claim for a lien.

Holding as we do that there was nothing due the contractor at the time of the service of the notice to which any claim of appellees for a lien could attach it will not he necessary to consider other errors assigned. The decree of the circuit court will he reversed and remanded with directions to dismiss the bill.

Reversed and remanded with directions.


text:
    A. H. Thompson, Appellee, v. St. Louis, Iron Mountain & Southern Ry. Co., Appellant.

      Negligence—effect of eoneurring. In order to make the master liable his negligence need not be the sole cause of the injury and to show that other causes concurred in producing the injury is no defense.
    Action in ease for personal injuries. Appeal from the Circuit Court of Randolph county; the Hon. W. E. Hadley, Judge, presiding.'

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Ralph E. Sprigg and L. O. Whitnel, for appellant; Martin L. Clardy and Whitnel, Browning & Gillespie, of counsel.

      William M. Schuwerk and A. E. Crisler, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

The second count of the declaration in this cause charged the appellant with negligence in the management and control of its train whereby appellee while in the exercise of reasonable care was struck by a piece of timber and injured. The third count was treated as a charge of inflicting the injury wilfully, but there was not sufficient evidence of wilfulness .to support it. The trial resulted in a verdict and judgment in favor of appellee.

The transcript of the evidence discloses the following undisputed facts. Appellant was engaged in having constructed an additional track along its railway then in operation, and as part of the new track a bridge was being built some eight hundred feet south of Eaddle Station. Trains were being regularly operated on the old track. The old and new tracks were parallel and about thirteen feet apart from the center of each track. The old track ran over a bridge also. The bridges were one hundred and ninety-six feet in length and being over the same opening were at the same point. Appellant had let the contract for building the new track including the bridge to the Walsh Construction Company who had sublet it to Wyatt and Sutherland, by which latter company appellee with a gang of men working with him upon the bridge was employed. The men went to work on the new bridge at seven o’clock in the morning and some of the gang had carried some timbers and placed them on the dump or embankment between the bridges near the south end. In doing this a large piece of timber in size 3x10 inches and about sixteen feet long was placed in such a way that one end of it projected over and on the track over which appellant was operating its trains. While appellee was engaged in spiking planks on the south end of the new bridge, near the projecting timber above mentioned, a passenger train came from the south, struck the timber hurling it against appellee, and causing his injury. The injury occurred about eight o’clock in the forenoon. The controverted questions arising upon the second count of the declaration were whether the appellee was free from negligence contributing to Ms injury and whether appellant was guilty of a want of ordinary care.

The weight of the evidence shows that appellee did not place the timber in the position it was when struck by the train, but that it was placed there by others who were working in the same gang. This would relieve appellee himself of the charge' of negligence in this regard, but if his injury was occasioned solely by the negligence of a fellow servant he could not recover and this defense is urged by appellant.

If it be conceded that the persons who placed the timber so it projected upon the track were fellow servants of appellee, and were guilty of negligence in so doing, this would not bar appellee’s right to recover against appellant if it was guilty of negligence which contributed to appellee’s injury, and appellee was using ordinary care himself. Elliott on Railroads, Vol. 3, Par. 1333b.

The rule is well settled that the defendant’s negligence in order to make him liable need not be the sole cause of the injury and to show that other causes concurred in producing the injury is no defense in an action for negligence. Wolff Manf. Co. v. Wilson, 152 Ill. 9; Elliott on Railroads, supra.

In addition to the evidence referred to as undisputed there was evidence that appellant had notice that the gang of men were working upon the new bridge in close proximity to the old one and in recognition of the dangers of running at high speed over the old bridge had issued an order to those in the management of trains to slow down to a speed of ten miles an hour at that place. There is a sharp conflict in the evidence as to the speed of the train when it struck the timber. While the engineer fixes it at ten miles an hour, other witnesses fix it from twelve to twenty miles, and the conductor who had been such for ten years, said he could tell how fast he was running and he fixed the speed at fifteen miles an hour. The engineer said at a speed of twelve miles per hour he could have stopped the train within sixty feet. There was also a conflict in the evidence whether sufficient signals under the conditions there, were given of the approach of the train. It further appeared it was a clear, bright day and that the timber was an obstacle on the bridge which could have been easily seen a sufficient distance to have avoided the collision if the train had been under control and the timber seen by the engineer. Under all these circumstances with a number of men at work upon the new bridge, it was a question of fact for the jury whether appellant whose duty it was to use reasonable care commensurate with the danger, was guilty of negligence that contributed to and was the proximate cause of appellee’s injury, and the court did not err in refusing to direct a verdict for appellant.

Complaint is made that the court excluded evidence of a contract between the contractor and subcontractor for the building of the bridge and tracks and also excluded evidence of who employed appellee and paid him, and that the contractors and subcontractors were financially responsible and engaged in the work as independent contractors.

The only question at issue was whether the appellant was guilty of negligence in the operation of the train which contributed to plaintiff’s injuries while he was in the exercise of care and the proffered evidence was irrelevant and there was no error in excluding it. Wolff Manf. Co. v. Wilson, supra. The same reasoning applies to all refused instructions based upon the subjects of contractors, employers, fellow servants and assumed risk. Besides there was no question involving the relation of master and servant.

We have examined the instructions given on behalf of appellee and they seem to us to state the law applicable to the case and conform to the views expressed in this opinion. It is said they ignore the question of proximate cause. We think not. They tell the jury that if appellant negligently struck the timber and produced the injuries complained of while appellee was exercising care it would be liable, and if this was true it was the proximate cause of the injury even if not the sole cause, which was not necessary to a recovery. Appellant complains of the refusal of instructions 3, 6, 7, 8, 9, 10, 11 and 12. Numbers 3, 6, 7, 8, 9, 10 and 11 are all based upon the proposition that if the proximate cause of appellee’s injury was the negligence of the contractors or subcontractors or the fellow servants of appellee he could not recover. The instructions were not limited to the sole cause, and were therefore inaccurate.

There was evidence to show the injury was caused by the combined negligence of appellant and other persons, and if by such combined negligence the proximate cause was due to both, it would have been erroneous to instruct the jury that if the proximate cause was due to the negligence of one it would excuse the other without limiting it solely to the negligence of that one. The instructions should have in apt words excluded negligence on the part of appellant.

Instruction No. 12 refused, is based on count No. 1 of the declaration. No such count is incorporated in the record. We find no reversible error and the judgment of the circuit court being supported by the evidence is affirmed.

Affirmed.