text:
    T. E. Gage, Appellee, v. City of Vienna, Appellant.
    1. Trial, § 153

      —when sufficiency of evidence question for jury. The question whether the evidence is sufficient to warrant a verdict for plaintiff is for the jury under proper instructions.
    2. Municipal corporations, § 1098

      —when evidence sufficient to sustain verdict. In an action against a city to recover for personal injuries alleged to have been due to the negligence of defendant in permitting a public street to be obstructed and in a defective condition, where plaintiff’s horses ran away and he was thrown from his wagon striking the tongue of a vehicle standing in such street, evidence held sufficient to warrant a verdict for plaintiff.
    3. Municipal corporations, § 1088

      —when evidence that other vehicles standing in street at time of accident admissible. In an action against a city to recover for personal injuries alleged to be due to defendant’s negligence in permitting its street to be obstructed and in a defective condition, where plaintiff’s horses ran away and plaintiff was thrown from his wagon, striking the tongue of a vehicle standing in such street the admission of evidence that other vehicles were standing in the street in the vicinity of the vehicle whose tongue plaintiff struck, held not erroneous, such testimony being competent as showing notice to defendant of the condition of the street, but not as showing other independent acts of negligence.
    4. Municipal corporations, § 1098

      —when evidence sufficient to sustain finding that street is a public street. In an action against a city to recover for personal injuries alleged to be due to the negligence of defendant in permitting its street to be obstructed and in a defective condition, where there was no evidence of a formal platting or dedication of such street as a public street, a finding that such street was a public street held warranted, where the evidence showed no dispute as to its character and where there was evidence that it was so called by the witnesses and had been so used, and where it appears that city officials had charge of it and had caused vehicles standing therein to be moved.
    5. Municipal corporations, § 971

      —what is duty of city to keep streets safe. A city is not bound to keep its streets absolutely safe, and is only bound to use reasonable care to keep such streets in a reasonably safe condition for ordinary travel thereon by persons using due care for their own safety.
    6. Municipal corporations, § 971

      —when instruction as to duty of city as to condition of streets erroneous. In an action against a city to recover for personal injuries alleged to have been due to the negligence of defendant in permitting its streets to be obstructed and in a defective condition, instructions that it was the duty of defendant to keep its public streets in a reasonably safe condition and reasonably free from obstructions, held erroneous as requiring of defendant a degree of care higher than that required by law.
    7. Municipal corporations, § 1100

      —when instruction must contain element of notice. In an action against a municipal corporation to recover for injuries due to the defective condition of public streets, notice, either actual or constructive, on the part of such municipal corporation of the defective conditions alleged, as being obstructed or out of repair, is one of the essential elements to- be proved to enable plaintiff to recover, and an instruction directing such a verdict in such an action must contain such element.
    8. Instructions, § 1

      —when must contain all facts essential to verdict. Where an instruction directs a particular verdict, if the jury find particular facts, the instruction must embrace all the facts essential to such a verdict, and a failure to do so is fatally erroneous, and cannot be cured by giving other instructions.
    9. Municipal corporations, § 1048

      —when due care must he exercised to avoid injury. In an action against a city to recover for personal injuries alleged to be due to the negligence of defendant, where the conditions leading up to the injury were set in motion prior to that time, plaintiff is bound to exercise due care as to the manner in which such conditions were so set in motion as well as at the time of the injury, and a failure to do so will bar a recovery.
    10. Municipal corporations, § 1100

      —when instruction as to ex

      ercise of due care erroneous. In an action against a city to recover for personal injuries alleged to have been due to the negligence of defendant in permitting its streets to be in a defective and improper condition, where at the time of such injuries plaintiff’s horses were running away, instructions that plaintiff, in order to recover, need show that he was in the exercise of due care only at the time of the injury, held reversible error, the conditions leading up to the accident having been set in motion prior to the accident.
    Appeal from the Circuit Court of Johnson county; the Hon. W. W. Clemens, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed September 1, 1915.
    G. W. Ballance and Spann & Spann, for appellant.
    O. R. Morgan, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment for $1,000 in the Circuit Court, to reverse which the appellant prosecutes this appeal.

The appellee was injured upon the streets of the City of Vienna on about April 3, 1914, by being thrown from a buggy while traveling lipón the streets.

It appears from the evidence that on that morning the appellee drove down in town in what he called his “red mail wagon” and on the way down town the horses tried to run. Appellee secured a new pair of check lines and then hitched the team of horses to an open buggy and again started down town, at which time, as he says, one of the horses was frisky and the other one became frightened and ran away; ran down 6th street, over a crossing and struck the tongue of a wagon that was standing on the side of the street, over next to the building, and the buggy ran upon the wagon in such manner as to throw the appellee to the ground, whereby he was badly injured.

The evidence tends to show that the crossing near where he was thrown from his buggy was a few inches higher than the level of the ground, and that there wás a gradual slope so that at some distance away from the crossing the ground was very much lower than the crossing. The street extends north and south and the wagon was upon the east side of the street, standing north and south with the street, with the tongue turned somewhat into the street, and the point where the wheels struck the tongue was about four or five feet from what is known as the Ferris building. At the distance of about ten feet south of the brick crossing referred to, the street is about two feet lower than the crossing, and the point at which the buggy wheels struck the wagon tongue was some fifteen or eighteen feet from the crossing, and, as some of the witnesses described it, when it struck the tongue it never struck the ground until it went over the wagon.

It also appears from the evidence of some of the witnesses that there was another wagon upon the other side of the street but not directly opposite this wagon, and it appears that from time to time for two or three years back that wagons had stood in and about the sides of this street, and near the livery stable. It also appears that the street was of the width of about sixty feet, and that a space of about thirty feet was kept open for travel. The wagon that was struck by plaintiff’s buggy was placed there on the evening before, and the injury to plaintiff occurred in the morning of April 3rd. It appears from the testimony of the witnesses that wagons were often seen upon the side of this street, but not in the traveled portion of the street, and appellant claims that there was sufficient room for the ordinary travel on the street.

There are three counts to the declaration. The first count charges that it was the duty of the defendant to keep and maintain its said streets, street crossings and sidewalks in a safe condition and repair and free from obstructions, and that it knowingly and negligently allowed and permitted the said street crossings to be and remain in an unsafe and dangerous condition, and obstructed by wagons, buggies, plows, etc., so that persons traveling along said street were in great danger of their lives and limbs, all of which defendant then had notice. Also that it had suffered and permitted the earth and dirt to wash and wear away from the south side of said street crossing to the depth of two feet, for the space of three years or more, and then avers that while driving along the street and exercising due care and caution that his horses became frightened and unmanageable and ran over said street crossing into and upon a wagon standing upon said street, and he was thereby thrown from his buggy and injured.

The second count charges the same duty and negligence as to permitting wagons and other vehicles to stand in the street, and concludes with the same averment as in the former count.

The third count is the same as the first count, limiting the negligence there charged to permitting the crossing to become and remain out of repair and in a dangerous condition.

It is insisted by counsel for appellant that the evidence in this case is not sufficient to warrant a verdict for the plaintiff.. This was a question for the jury to determine under the evidence and proper instructions, and if the jury had been properly directed we would not be inclined to disturb the verdict on that account.

It is also contended that the court erred in admitting evidence, of other vehicles and wagons standing in the vicinity of this one. We do not regard the admission of this testimony as erroneous, and while it was not competent for the purpose of showing other independent acts of negligence, yet it was proper and competent for the purpose of showing notice to the defendant of the condition of the street, and we think this doctrine is well sustained by the Supreme Court in the City of Taylorville v. Stafford, 196 Ill. 288.

It is also insisted by counsel for appellant that the street is not shown by the evidence to have been a public street. It is true the evidence does not show a formal platting or dedicating of the street, yet it does appear that it was used as a street, called by all the witnesses a street and described by some of them as extending to the corporate line. The city marshal and street inspector had charge of it and at times prior to this ordered vehicles to be moved, and there is no dispute, so far as the evidence is concerned, that it was a street and we believe the jury were warranted in finding it to be a street. In another trial, however, this may be remedied by more complete proof.

It is next insisted by counsel that the instructions given embodied the idea that it was the duty of the defendant to keep its streets in a safe condition for travel, and that as the city was not an insurer of safety upon its streets that this was a higher duty than was enjoined by the law. Upon examination of the declaration and some of the instructions given by the court on behalf of the plaintiff, we find that the case was tried upon the theory that it was the duty of the defendant to keep its streets in a reasonably safe condition for travel, and reasonably free from obstructions. As we understand the law, the duty enjoined upon the city is to use reasonable care to keep its streets in a reasonably safe condition for travel. This is all that is required of the city. ‘ ‘ The city is not bound, under the law, to keep its streets absolutely safe. It is only bound to use reasonable care to keep its streets reasonably safe for ordinary travel thereon by persons using due care and caution for their safety.” Boender v. City of Harvey, 251 Ill. 228; Village of Lockport v. Licht, 221 Ill. 35.

Some of the instructions given on behalf of the plaintiff referred to the declaration for the charges of negligence, and upon examination of the declaration we find that it proceeds upon the theory that it was the duty of the city to keep its streets in a reasonably safe condition for travel, etc., and while as above stated, the only duty devolving upon the city is to use reasonable care in keeping its streets in a reasonably safe condition, and we think that the instructions requiring that higher degree of care were erroneous.

Complaint is also made of defendant’s instruction No. 2, which reads as follows: ‘ ‘ The jury are instructed that if they believe from the greater weight of the evidence that the plaintiff, T. E. Gage, suffered injuries as charged in his declaration, that the injuries would not have occurred but for the negligence and want of ordinary care of the defendant, as charged in the declaration, and that the plaintiff at the time of the injury was exercising due care and caution for his own safety, you should find the defendant guilty, and assess the plaintiff’s damages, although you may further believe that at the time of the injury the plaintiff’s horses were running away and had become unmanageable.” It will be observed that this instruction directs a verdict and refers to the declaration for the negligence charged, and the duty and negligence charged in the declaration is of a higher character than required by law. This instruction also omits the elements of notice, either actual or constructive, to the city of the condition of the street. Notice of the condition of the streets upon the part of the city and of the fact that it is obstructed or out of repair is one of the essential things to be proven, and in directing a verdict the instruction must contain the element of notice, either actual or constructive. Ransom v. City of Belvidere, 87 v App. 167; City of Chicago v. Gurrell, 137 Ill. App. 377.

Where an instruction undertakes to state the facts necessary to be proven to entitle a plaintiff to recover, it must contain all of the material facts, and where an instruction directs a verdict a failure to include all such facts is fatal and cannot be cured by other instructions in the case. It has always been held that: “Where a court directs a particular verdict if the jury should find certain facts, the instruction must embrace all the facts and conditions essential to such a verdict.” Illinois Iron & Metal Co. v. Weber, 196 Ill. 531.

It is also contended that instructions two and three are erroneous in limiting the due care and caution required on the part of the plaintiff to the time of the injury. The evidence in this case discloses that the conditions leading up to the injury were set in motion prior to that time, and such conditions, if carelessly produced by the plaintiff, would bar a recovery, if the plaintiff’s team was running away by reason of the carelessness or negligence of the plaintiff, that would be an element to be considered by the jury in determining his due care, and we think that this is the character of case where the due care exercised by the plaintiff must not only extend to the time of the injury but prior thereto as well. The language of these instructions undoubtedly require that the plaintiff should have been in the exercise of due care only at the time of the injury, and the verdict should be for the plaintiff even though the jury may believe that the plaintiff was grossly negligent in starting his team or in permitting them to run away. At least these are the elements that should have been considered by the jury, and we think an instruction of this character is erroneous and condemned in the case of the Village of Lockport v. Licht, 221 Ill. 41. The giving of these instructions in the form they were given was error, and of sufficient character to require a reversal of the ease.

We do not deem it necessary to comment upon the other objections that are urged to the instructions as those all ready considered are sufficient to require a reversal, and any errors therein may be corrected upon another trial.

The judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    Eugene Thompson, Appellee, v. Harry B. Russell et al., Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action of forcible detainer by Eugene Thompson, plaintiff, against Harry B. Bussell and his wife, Mamie Bussell, defendants, in the Circuit Court of St. Clair county, to recover possession of a farm in St. Clair county, Hlinois. From a judgment of possession in the Circuit Court after appeal from a justice of the peace, defendants appeal.
    Plaintiff on December 1, 1911, leased the premises of which possession was sought to be recovered to defendants Harry B. Bussell and his wife, Mamie Bus-sell, for a term of three years from March 12, 1912. The lease, in substance, provided inter alia that lessees should care for, trim, cultivate and prevent harm to the fruit trees on the farm; should haul free of charge to plaintiff, lime stone or other fertilizer and spread it at points on the farm designated by plaintiff; and grub and chop out as rapidly as possible trees or underbrush from ditches which could otherwise be crossed by machinery.

      Differences arose, and on October 7, 19-13, plaintiff served a notice to quit on or before October 18th, A. D. 1913, alleging that defendants had made default, and assigning inter alia the following reasons: Failure to work the leased premises set apart as wheat ground for the crop of -1913, in a proper and husbandlike manner ; failure to haul to the farm and make distribution of fertilizer material provided by the owner, for distribution on the land during the season of 1913) and failure to distribute said fertilizer material in accordance with written directions of owner; failure and refusal to chop and clear out ditches on the premises of trees and undergrowth; and failure to spread fertilizer material around and cultivate the growing fruit trees on the premises.
    Defendants did not deliver up possession of the premises at the expiration of the time named.
    At the trial the defendant offered the following instruction as their theory of the issues which was given: The court instructs the jury that the only issues before you for your determination are:
    “1st. Whether or not defendants failed to work the portion of the premises set apart for wheat for the season of 1914, in a proper and husbandlike-manner; and
    . “2nd. Whether or not defendants failed to haul and distribute fertilizing material, as provided by the lease; and
    “3rd. Whether or not defendants refused or failed to clear and. chop underbrush and trees on and along the ditches, according to the lease; and
    “4th. Whether or not the defendants refused or failed to spread or throw manure around the trees in the orchard.
    “If you believe from the preponderance of all the evidence, that the plaintiff has not shown that the defendants did fail or refuse to do some one or more of the above mentioned things, then you should find the issues in favor of the defendants.”
    It appeared that defendant Harry B. Bussell was engaged in business in St. Louis, Missouri, and that he and his wife, Mamie Bussell, rented the farm with the intention that the wife and their son, Harry Bus-sell, Jr., eighteen years of age at the time of trial, should manage the farm; that neither the lessees nor their son had had any actual experience in farming prior to the leasing of this farm. After the lease was made, the Bussells made the farm their home. Defendant Harry B. Bussell continued in St. Louis and the farm was managed by the wife and son. Plaintiff introduced proof tending to show that the wheat ground was not properly prepared in 1913 for the crop of 1914, while there was proof on- the part of defendants that the premises set apart for wheat for the season of 1914 were properly cultivated and prepared for the crop. The proof showed without contradiction that plaintiff shipped to defendants for use upon the farm a carload of manure, which defendants failed to haul out to the farm and distribute as provided by the lease; also that plaintiff had to have this fertilizing material hauled to the farm for distribution. The excuse offered by defendants for failure to haul and distribute the manure is that it was provided at a time when it was unreasonable for them to do so, the lease not fixing the time for hauling. The proof further showed that the underbrush and trees along the ditches were not cut or grubbed but there was proof on the part of defendants tending strongly to show that the ditches, even if cleared of trees and undergrowth, would be impassable for farm machinery.
    As to whether defendants refused or failed to spread the materials furnished them around the trees in the orchard, the proof of the respective parties did not agree.
    Webb & Webb, for appellants.
    E. W. Eggmann, for appellee.

      Abstract of the Decision.
    1. Forcible entry and detainer, § 90

      —when instruction sufficiently presents issues of fact. In an action of forcible detainer to recover possession of a farm leased by plaintiff to defendants, on the ground of a breach of the condition thereof, which lease was for a term of three years from March 12, 1912, and required defendants inter alia to haul and spread fertilizer furnished by plaintiff for use on the farm, and to remove trees and underbrush from certain ditches, an instruction given at the request of defendants that the jury should find for defendants if plaintiff had not shown by a preponderance of the evidence that defendants (1) “failed to. work the portion of the premises set apart for wheat for the season of 1914, in a proper and husbandlike manner;’’ or (2) “failed to haul and distribute fertilizing material, as provided by the lease;” or (3) “failed to clear and chop underbrush and trees on and along the ditches, according to the lease;” or (4) “refused or failed to spread or throw manure around the trees in the orchard,” held to present fairly the issues of fact to be determined by the jury under the evidence.
    2. Trial, § 225

      —when jury must adhere to issues. The jury are bound to adhere to issues presented to them by proper instructions.
    3. Trial, § 155

      —when question for jury presented. Where the evidence is conflicting the case must be submitted to the determination of the jury.
    4. Forcible entry and detainer, § 84

      —when evidence sufficient to sustain finding as to breach of lease. In an action of forcible detainer to recover possession of leased premises on the ground of breach of the condition of the lease by defendants, the lessees, where the evidence was conflicting as to breach, evidence held not to warrant an interference with a verdict for plaintiff as being against the preponderance of the evidence.
    5. Forcible entry and detainer, § 90

      —when instruction not erroneous as assuming breach of lease. In an action of forcible detainer to recover possession of a farm leased by plaintiff to defendants, on the ground of a breach of condition by defendants, an instruction given at the request of defendants that the jury should find for defendants if plaintiff had not shown by a preponderance of the evidence that defendants (1) "failed to work the portion .of the premises set apart for wheat for the season of 1914, in a proper and husbandlike manner;” or (2) “failed to haul and distribute fertilizing material, as provided by the lease;" or (3) “failed to clear and chop underbrush and trees on and along the ditches, according to the lease;” or (4) “refused or failed to spread or throw manure around the trees in the orchard,” held to leave the question of defendants’ breach to the jury and not to assume that there had been such a breach.

      See Illmois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    James B. Posey, Appellant, v. Commissioners of Highways et al., Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Bill by James B. Posey, complainant, against the Commissioners of Highways et al., defendants, in the Circuit Court of Marion county, to restrain defendants from encroaching on complainant’s land, and from removing fences and cutting trees along certain roads and also to restrain defendants from prosecuting an action then pénding at law. From the decree denying complainant relief prayed for, complainant appeals.
    It appeared that complainant owned three tracts of land in Omega township, Marion county, Illinois, being the West Half of the Southeast Quarter of the Northeast Quarter, the West Half of the Northeast Quarter of the Southeast Quarter and the Northwest Quarter of the Southeast Quarter of Section 3. These tracts for convenience are referred to as Nos. 1,2 and 3 respectively, in the order above named. No. 2 lies directly south of No. 1 and east of No. 3. It also appeared that this road was first -traveled through a wooded country and was not laid out, but was a line of travel not proceeding directly east and west, and having no particular boundaries. After the road had been traveled for thirty or forty years, the highway commissioners in 1897 employed Levi S. Meredith, thén county surveyor, to survey and define the east and west road.
    Meredith surveyed the road but made a mistake in running the line, but his survey included all parts of the so called line of travel, which was crooked and wandered from side to side of the forty-foot highway located by him. Complainant and others interested were present and acquiesced in the location. In March, 1911, the then highway commissioners caused a new survey by one Warner, then county surveyor, who ignored the Meredith survey, the line of travel, the fences and other evidences of the location of the road, and established the road twenty feet on each side of the half section line, so that at the point of intersection of the roads he fixed the comer of the three lots at a point twelve feet ten inches south and seven feet two inches east of the point where such corner was located by Meredith, and at the west end of the road he marked the corner of complainant’s lot No. 3 at a point twenty-four and one-third feet south and fourteen and two-third feet east of the point where such corner was located by Meredith.
    There was proof tending to establish the claim of defendants that Meredith was directed to survey the road on the half section line and mark it twenty feet on either side thereof for the highway, and that he attempted to do so but made an error in running the line. There was also proof tending to show that those who acquiesced in this survey of the road at the time it was made by Meredith did so because they thought the half section line correctly located and would not have done so if they had known that the line was not correctly run on the half section line. Later in the same year that Warner made his survey, he went over it again with Toothacre, another surveyor, to verify it, and the two found the survey substantially correct, making only some minor changes of no material importance. Defendants rely on the Warner survey and are seeking to establish the boundaries of the highway as located thereby, while appellant claims the road as located by the former commissioners, according to the Meredith survey.
    The court in the decree appealed from found that the surveyor Meredith located the road in 1897 in the presence of the then highway commissioners and the landowners, setting stakes on the north and south sides of the road, marking its boundaries, and that the road as surveyed and defined by Meredith became and was the highway and road near to and adjacent to the plaintiff’s land; that the road as surveyed by Meredith is north of the line of fence which defendants tore down and removed prior to the bringing of this suit; that prior to the removal of the fence on complainant’s land south of the road, about the time defendants were beginning to work on the road, complainant pointed out to them, and two other persons, the south line of the road as being along the line of what was afterwards known as the Warner survey, which was the line claimed by said commissioners as the south line of the road in this suit; that complainant was estopped from claiming that the line of the Warner survey was not the south boundary of the road and that he was not entitled to any relief as to the road; and it was decreed that the line of the east and west road was the line of the Warner survey and that the limits of the road were the limits as designated by the survey, and that the road is forty feet in width.
    It appeared from all the proofs in the case that it was the intention of Meredith, at the time he made his survey, as it was of Warner later, to ascertain the half section line and establish the boundaries of the road twenty feet north and south from such line as a center; that it was the intention of the commissioners at the time Meredith ran this line to lay out the road with boundaries extending twenty feet on each side of the half section line, and that the Meredith survey of the road was for the time asquiesced in, because it was supposed that he had correctly located such half section line. It appeared that some question arose as to the proper location of the road prior to the time the Warner survey was made, and at that time plaintiff went over the road with the commissioners, both at the east end and the west end thereof; that at that time, and also prior thereto, plaintiff cultivated his crops out into the highway and he then pointed out where he thought the line was and told the commissioners that they could grade the road to that line even if it took his crops; that the line so designated was the one which the Warner survey afterwards designated for the true line. The evidence on this point was somewhat confusing, as it referred to different objects along the line of road that are not clearly located.
    Abstract of the Decision.
    1. Estoppel, § 103

      —when evidence sufficient to show estoppel 6y conduct from claiming that line of road as relocated not proper. On a bill to restrain highway commissioners from encroaching on complainant’s land, and from removing fences and cutting down trees along a line of road running through such land, evidence held sufficient to sustain a finding of the chancellor that complainant was estopped by his conduct from claiming that the line of the road as relocated was not the true line.

      Kagy & Vandervort, for appellant.
    Charles H. Holt and W. G. Wilson, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

2. Estoppel, § 60 —when property owner estopped to complain as to location of road. One who has consented to the location of a road through his land cannot be heard to complain when the highway commissioners act on his consent and locate the road.

3. Injunction, § 114 —when prosecution of action at law should not he restrained. In a bill to restrain highway commissioners from encroaching on plaintiff’s land and from removing fences and cutting down' trees along a line of road, held improper to restrain defendants from prosecuting a suit at law to recover a penalty in which defendants are entitled to a jury, where the main relief sought in the bill was refused on the ground that complainant was estopped to complain of the acts sought to be restrained.

4. Equity, § 9 —when penalty will not he enforced in equity. The matters involved in an action at law to recover a penalty where parties are entitled to a jury trial cannot be satisfactorily adjusted in a suit in equity brought to restrain the prosecution of such action.


text:
    Ellen C. Griffin, Defendant in Error, v. William U. Halbert, Administrator, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Petition by Ellen C. Griffin to the Probate Court of St. Clair county for the allowance of a claim against the estate of Sarah Ann Johnson, deceased, intestate, the claim being the principal and interest of a promissory note executed by intestate jointly with her husband, Benjamin Johnson, also deceased, of which note petitioner was the holder. From a decree allowing the claim, William U. Halbert, administrator, 'appealed to the Circuit Court of St. Clair county. To reverse a judgment approving the decree appealed from, the administrator prosecutes this writ of error.
    Henry J. Fink, a loan broker in Belleville, Illinois, and as such loaned money on real estate and after-wards sold the securities to investors. As a part of his business he saw that the property securing the loan was insured and received interest from borrowers, and paid it to the holders of the notes. On November 6, 1908, he loaned to Sarah Ann Johnson and her husband, Benjamin Johnson, $2,800 and took their joint note, due in three years, with interest at the rate of six per cent, payable semiannually and evidenced by six interest notes, for $84 each, secured by a mortgage on a lot upon which was a dwelling house. The loan was procured for the Johnsons by a contractor who built the house for them. The notes and mortgage were payable to Henry J. Fink, trustee. Shortly after the execution of the notes and mortgage Fink sold and delivered them to Ellen C. Griffin. Thereafter Fink notified Mrs. Johnson a few days'before each interest note became due and she paid the interest to him, he in turn paying the same to Mrs. Griffin who delivered the interest note so paid to him, which he sent to Mrs. Johnson. This manner of collection and payment seemed to have continued during the three years. On November 11, 1911, after the principal note had become due, Mrs. Johnson paid Fink $1,800 on the principal and took his written receipt therefor, the receipt showing that the payment was to be applied on the loan. There is no evidence that Fink had been authorized by Mrs. Griffin to receive said amount on the principal or that Mrs. Johnson knew that the notes had been sold and transferred to her. A month or so after the receipt of this money he informed Mrs. Griffin of the fact and offered her other loans for the amount received, but she refused. She came to Fink’s office a number of times about the matter and said she wanted the money but did not get it. On August 29, 1912, Mrs. Griffin wrote to Fink, saying she had seen a notice of Mrs. Johnson’s death, and further wrote: “You told me they would pay a $1,000 or more on the mortgage. There is nothing paid and Mrs. Johnson is dead. I want to hear immediately why that estate was not settled and that payment made as you said it would be. If you had looked after it that payment would have been made. That would have cut the mortgage down. That is a heavy mortgage for that house. You hold that $1,000 for me. Don’t let them have it.” Other correspondence passed between them in which she demanded $1,000, which she appears to have thought was the amount paid to Fink, and stating that if it was not paid, she was going to close the mortgage, but he failed to pay her any of the money and finally failed financially and fled the country.
    Abstract of the Decision.
    1. Principal and agent, § 132

      —when person not in possession of note not agent to accept payment of note. A broker who does not have possession of a note is not made the agent of the holder so as to be authorized to accept payment of part of the principal of the note by the mere fact that such broker sold the holder the note in question, as well as other notes, and has been loaned money by such holder.
    2. Principal and agent, § 132

      —when principal hound by act of a third person in receiving payment of note. In order to bind the holder of a promissory note by a payment of the principal thereof made to one other than the holder, it must appear that the person receiving the payment had either possession of the note or express or implied authority from the holder to receive such payment.

      William H. Pfingsten and James O. Miller, for plaintiff in error.
    Turner & Holder, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

3. Principal and agent, § 132 —when duty of person paying note to ascertain authority of third person to accept payment. The payor of a promissory note is charged with the duty of seeing that the person to whom he makes payment thereof has authority from the holder to receive such payment, if such person has not the note in his possession.

4. Principal and agent, § 132 —when evidence insufficient to establish agency to accept payment of note. On a writ of error to reverse a judgment approving the allowance of a promissory note as a claim against the estate of a decedent, where the note in question was indorsed by the payee to claimant, and where decedent paid to the original payee, a note broker, an amount in part payment of the principal of such note, evidence held to show that in accepting such payment such broker acted as the agent of decedent and not of claimant, it appearing that such broker did not have possession of the note, or express or implied authority from claimant to receive such payment.

5. Principal and agent, § 132 —when broker selling note not agent to receive payment. Where a person purchases notes from a broker and takes from him the notes purchased, the broker is not the agent of such purchaser to receive payment thereon, in the absence of express or implied authority so to act.

6. Principal and agent, § 132 —when agent no authority to receive payment of debt. The collection by an agent of other securities or even of a part of the existing debt is not sufficient to raise an implication of authority in the agent to receive payment of the debt.

7. Principal and agent, § 132 —when agent no authority to collect principal of debt. The fact that an agent has express authority to collect interest on a note is not- sufficient to show authority in the agent to collect the principal.

8. Principal and agent, § 183 —when evidence insufficient to establish ratification of unauthorized collection of note. On a writ of error to reverse a judgment approving the allowance of a note as a claim against decedent, where it appeared that decedent gave a note to a note broker, who assigned it to claimant, that claimant retained possession, and that the broker, who had no express or implied authority from such holder to receive payment, received payment of part of the principal and never paid the amount received over to the holder, evidence held insufficient to show a ratification of the payment to such broker.


text:
    William M. Elliott, Appellee, v. Herman Maves, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Edwards county; the Hon. William H. Green, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by William M. Elliott, plaintiff, against Herman Haves, defendant, in the Circuit Court of Edwards county, to recover a broker’s commission for bringing about a contract between defendant and one Naylor, whereby defendant traded his store building and stock of goods for sixty-five acres of land. From a judgment for plaintiff after trial by jury, defendant appeals.
    The proofs showed that defendant h^d a store at Browns, Hlinois, and that plaintiff was in the real estate business at Albion, Illinois. Sometime in February following, defendant went to Albion, where he met plaintiff, who testified that at that time defendant asked him to try to effect a trade with Naylor, who had visited the property with Elbert Epler. Plaintiff testified that Epler was induced by him to take Naylor to see the property. Defendant denied that he had the conversation with plaintiff at Albion, but it appeared that immediately after it is claimed to have taken place, plaintiff went with Naylor to an attorney’s office and then went out and got defendant and Epler and returned with them to the office; that the terms of the trade were then agreed upon and the attorney instructed to draw up an agreement, which was done, and that while the contract was being drawn, an alteration was made in it for defendant’s benefit at the suggestion of plaintiff and the contract was then signed. In regard to the contract between defendant and plaintiff concerning the agency for the sale of the land, there was some conflict in the testimony. Plaintiff testified that he contracted with defendant to act as his agent in selling the property and was to receive for his services a commission of two and a half per cent, of the selling or trading price. Defendant testified that his statement to plaintiff was “the party that brings me a deal gets a commission but I reserve the right to make the deal myself provided I can,” and claimed to have made the deal himself. A witness, Lovellette, who was present at the time of the making of the oral contract between defendant and plaintiff, corroborated the plaintiff’s testimony.
    The court modified the following instructions by inserting the word “may” instead of the word “should” therein:
    No. 1. “The jury are instructed that if, after considering all the evidence in the case together, you believe that the evidence is equally balanced on both sides, then you may find your verdict for the defendant. ’ ’
    No. 2. “The Court instructs the jury that if you believe from the evidence that Charles Naylor was not induced by the plaintiff to purchase or trade for the property in question by the efforts of the plaintiff, then the plaintiff is not entitled to his commission and you may find your verdict for the defendant.”
    No. 4. “The Court instructs the jury that unless you believe from a preponderance or greater weight of the evidence in this case that the plaintiff contracted with the defendant to procure a purchase or trade for the property in question, and while acting under said contract procured a purchaser or trader willing and able and ready to purchase or trade for said property, that you may find for the defendant. ’ ’
    No. 5. “You are further instructed that before the plaintiff is entitled to recover in this case he must prove by a preponderance or greater weight of the evidence that the defendant employed him to procure a purchase or trade for th,e property in question, and that the plaintiff in pursuance of said employment found a person and sent him to the defendant, and that said person either purchased or traded for said property, or was willing, ready and able to purchase or trade for said property according to the terms under which the plaintiff was employed to obtain, and unless you so believe from the greater weight of the evidence then you may find for the defendant.”
    Abstract of the Decision.
    1. Principal and agent, § 8

      —when evidence sufficient to establish agency to exchange land. In an action to recover a broker’s commission for procuring a contract between defendant and another whereby defendant traded his store building and stock of goods for a tract of land, where the evidence was conflicting as to whether defendant made a contract of agency with plaintiff to bring about such exchange, but where plaintiff’s testimony was corroborated by that of another witness, evidence held sufficient to sustain a finding that such a contract was made.
    2. Principal and agent, § 83

      —when evidence sufficient to establish that brolcer was procuring cause of sale. In an action to recover a broker’s commission for procuring a contract whereby defendant exchanged his store building and stock of goods for a tract of land owned by a certain person, where it appeared that plaintiff went with such person to the office of an attorney, where the contract was made after plaintiff had brought defendant to the same office, evidence held to sustain a finding that plaintiff was instrumental in bringing about the exchange.
    3. Principal and agent, § 69

      —when agent entitled to recover commissions. In an action to recover a broker’s commission for procuring the exchange of property, where it appeared that defendant requested plaintiff to try to effect such exchange, and where it appeared that plaintiff was instrumental in bringing about such exchange, a verdict for plaintiff for the amount of the commission agreed on held proper.

      S. E. Quindry, for appellant.
    Allen E. Walker and P. C. Walters, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

4. Instructions, § 46 —when instruction does not invade province of jury. An instruction that the jury “may” find for a party to an action under certain conditions does not make it mandatory on the jury so to find under such conditions.

5. Instructions, § 162 —when modification by insertion of word “may” instead of “should” erroneous. In an action to recover a broker’s commission for procuring the exchange of property, where instructions requested by defendant, to the effect that under certain conditions the jury “should” find in his favor, were modified by the court by substituting the word "may” for the word "should,” instructions held correct as requested, the words “should” and “may” not having the same meaning as used in the instructions requested.

6. Words and phrases—“should” and “may.” In some connections the words “should” and “may” have substantially the same meaning.

7. Appeal and error, § 1565 —when modification of instruction by substituting word “may” for “should” not prejudicial error. In an action to recover a broker’s commission for procuring a contract to be made whereby defendant traded his store building and stock. of goods for a tract of land, where instructions requested by defendant that the jury “should” find in his favor under certain named conditions were modified by the court by substituting the word “may” for the word “should” as used in the requested instructions, held that the modification was not reversible error, although erroneous as not making it mandatory on the jury to find if they found the conditions named to exist, it appearing that the case was not close on the facts, and that the jury were not misled by the error.

8. Appeal and error, § 1538 —when instruction omitting essential element not prejudicially erroneous. In an action to recover a broker’s commission for procuring the exchange of property, an instructions state the necessity of such a contract to entitle plain-would be entitled to a verdict, although erroneous as omitting the element of whether there was a contract for commissions between plaintiff and defendant, is not prejudicially erroneous where other instructions state the necessity of such a contract to entitle plaintiff to recover, and where the case is tried on the theory that such contract was essential to recovery.


text:
    W. G. Threewit et al., Plaintiffs in Error, v. W. W. McFall et al., Defendants in Error.
    1. Mortgages, § 23

      —when deed and agreement to recovery constitute single transaction. In a bill to set aside a deed of real estate absolute on its face and praying to have the same declared a mortgage, and to be allowed to redeem therefrom, where it appeared that an agreement between grantor and grantee was made and recorded at the same time as the deed, whereby grantee agreed to reconvey to grantors the premises conveyed in the deed, free and clear of all incumbrances, on the payment by grantors within two years of certain indebtedness named in such agreement, and already existing, held that the deed and agreement constituted a single transaction.
    2. Mortgages, § 23

      —when evidence sufficient to show deed intended to secure indebtedness. In a bill to set aside a deed of real estate absolute on its face and praying to have the same declared a mortgage, and to be allowed to redeem therefrom, where it appeared that an agreement between grantors and grantee was made and recorded at the same time as the deed, whereby grantee agreed to reconvey to grantors the premises conveyed in the deed, free and clear of all incumbrances, on the payment by grantors within two years of certain indebtedness named in such agreement and already existing, evidence held to show that the deed was intended to secure the payment of the indebtedness, and not as an absolute conveyance, effectual at once, for a consideration already paid.
    3. Mortgages, § 23*—when agreement to reconvey does not malee transaction mortgage. Where a deed absolute in form is made and accepted as in payment of an antecedent debt and not as security for the repayment of money, an agreement to reconvey in a certain time and for a certain sum does not of itself make the transaction a mortgage.
    4. Mortgages, § 23

      —when deed and agreement to reconvey constitute mortgage. In a bill to redeem, a deed absolute on its face coupled with an agreement to reconvey within two years on payment of certain indebtedness held plainly a mortgage within the meaning of Hurd’s Rev. St., ch. 95, sec. 12 (J. & A. ¶ 7587), providing that “every deed conveying real estate which shall have been intended only as a security in the nature of a mortgage, though it be by an absolute conveyance in terms, shall be considered

      as a mortgage,” it appearing that such deed was intended as security for the payment of such antecedent indebtedness.
    5. Judgment, § 573

      —when bill may be maintained to enforce against real estate. The holder of a judgment may within seven years of its rendition maintain a bill in equity to enforce it against the real estate of the debtor situated within the county where the judgment was rendered, notwithstanding the conveyance of the real estate to another, the judgment being a lien on the real estate and being notice to the world of complainant’s claim.
    6. Mortgages, § 28

      —when rights of grantor and those claiming under him not cut off by refusal of grantee to reconvey. Where a deed absolute on its face conveys real estate under an agreement made and recorded at the same time as the deed, whereby grantee agrees to reconvey within two years on the performance of certain conditions, the rights of grantors and those claiming under them to redeem are not cut off by a conveyance by grantee to one other than the grantor, where it appears that within such period of redemption grantor or those claiming under him were ready to perform, hut grantee refused to accept performance or to reconvey.
    7. Mortgages, § 28

      —when subsequent grantees of land under deed not innocent parties in interest. In a bill to redeem real estate from a deed absolute on its face hut coupled with an agreement to reconvey within a named time, the whole transaction constituting a mortgage, where complainants were a judgment creditor of such mortgagors, and a grantee of the equity of redemption under such mortgage, and where some of the defendants were subsequent grantees claiming under the grantee named in the deed from which the redemption is sought, none of such defendants are to be deemed innocent parties in interest where all sources of complainants’ title are matters of record.
    8. Equity, § 146

      —when bill to redeem from mortgage not multifarious. A bill to redeem real estate from a deed and agreement to convey constituting a mortgage is not demurrable as being multifarious because one of the complainants joined is an execution creditor of such mortgagor, and the other a grantee of the equity of redemption, although the interests of the complainants are to some extent conflicting, and although one might properly have been joined as a defendant, since both are necessary parties to the bill, and neither can maintain the bill except by overcoming the claims of the defendants to the property sought to be redeemed, to which extent their interests are identical.
    9. Equity, § 106

      —when rights of complainants having conflicting interests may be determined. Where two parties, whose rights are to some extent conflicting, are joined in a bill as complainants, if it be determined that either has a right to equitable relief as against the defendants, the rights of complainants can readily be determined under the bill. ,
    10. Equity, § 106

      —who are proper parties complainant. Where two complainants in a bill are necessary parties thereto, the fact that one of them might properly have been joined as a defendant is no obstacle in equity to the adjustment of the rights of all parties, including the complainants.
    Error to the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded with directions.
    Opinion filed December 1, 1915.
    T. I. Galloway and R. E. Smith, for plaintiffs in error.
    Spiller & Miller, W. F. Dillon and W. P. Seeber, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Plaintiffs in error filed a bill in equity against defendants in error, asking the correction of the description in several deeds, and that one certain deed and contract be declared a mortgage, that an accounting be had and that plaintiffs in error be permitted to redeem. A general and special demurrer was sustained to the bill. Plaintiffs in error abided their bill, the same was dismissed for want of equity and judgment was entered against complainants for costs.- According to the allegations of the bill, W. W. McFall on or about February 4, 1907, sold and conveyed to Offa Neal for a consideration of $300, Lot 19, Block D, in McFall’s third addition to the City of Benton, Illinois. Neal recorded his deed, entered into possession and improved the lot. On September 13, 1909, W. G. Threewit recovered a judgment against Neal and his wife for $209.71. At the same time Neal and his wife •owed B. P. Platt, guardian, $825 as evidenced by their notes dated February 4, 1907, and they also owed the Coal Belt National Bank of Benton $255.72, as evidenced by their note dated February 18, 1908, and $304, shown by their note dated March 30, 1908. To secure the payment of said sums and the interest due thereon, on or before two years from April 1, 1910, said Neal and wife, by a deed absolute on its face, conveyed said lot to E. W. Hersh, trustee for said bank, but it is alleged that said deed was intended by the parties thereto as a mortgage only and that upon the payment of said indebtedness and the interest due thereon, said Hersh agreed to reconvey said premises to said Neal and wife clear of all incumbrances made by him as evidenced by his agreement in writing of that date. The deed to said trustee and his agreement to reconvey were both filed for record on March 12, 1910, and duly recorded and copies of the same were filed with and made a part of complainants’ bill. The trustee took possession of said premises under said deed and collected rents thereon up to May 17, 1911, amounting to $175. Prior to said last mentioned date Neal and wife paid all of said indebtedness, except $825, when the trustee refused to receive further payment. It is further alleged that Neal and his wife and complainants have at all times since May 17,1911, and are now ready to pay said trustee and the defendants, whatever, if anything, is due them for the principal sums or interest due on said indebtedness, but that said trustee and the other defendants have already refused and still do refuse to accept the same, and refuse to reconvey said premises and claim that said sums of money were paid to said Neal and wife as absolute purchase money for said premises; that said deed was not intended as a mortgage but as an absolute conveyance, and they refused to make an accounting with the complainants concerning the transaction; that on May 10,1911, said Hersh, trustee, and said McFall labored under a mutual mistake that the lot intended to be conveyed was Lot 17 instead of Lot 19, and to correct such supposed error said trustee conveyed Lot 19 to McFall and McFall deeded Lot 17 to said trustee, but that in fact the proper number of the lot was 19; that on May 17, 1911, said trustee sold said premises for $1,010 to Walter Waggoner and conveyed the same to him as Lot 17 instead of 19. Waggoner, as the bill states, took possession of said Lot 19, however, and collected rents thereon from May 17,1911, to November 17,1913, aggregating $375. On January 20, 1913, Hannah Zwengle purchased said lot from Neal and wife for $75 and received their quitclaim deed to said Lot 17, which was afterwards corrected by another deed properly describing said property, the last deed having been made after the original bill was filed. On March 14, 1913, Threewit sued out an execution on his judgment and a levy, was made and sale had, he being the purchaser. In the certificate of levy, certificate of sale and sheriff’s deed, the latter of which was made on July 20,1914, the property was inadvertently described as Lot 17. On November 17,1913, Waggoner sold the property to W. W. McFall for $1,000, making a quitclaim deed therefor and describing the premises as Lot 17. McFall, however, took possession of Lot No. 19 under the deed and retained the same until June 20, 1914, collecting during said time rents amounting to $105. On June 15, 1914, McFall sold the lot to Fannie H. Newman making a warranty deed of that date, conveying to her said premises by proper description, and she took possession of the same collecting rents therefor, aggregating $75.

The prayer of the bill is that said instruments wherein said lot is described as No. 17 be corrected to show the proper description; that said deed from Neal and wife to Hersh, as trustee, be decreed to be a mortgage only and complainants be allowed to redeem therefrom on such terms as may be just; that the deed from Hersh, trustee, to McFall dated May 13, 1911, and the deed from McFall to Hersh, trustee, due May 10, 1911, be declared null and void; that the judgment in favor of Threewit against Neal and wife be decreed to be the first and prior lien on the premises; that an account of said transactions be taken under the direction of the court and that upon the payment of what may be found due, defendants be decreed to surrender up possession of the property and to convey the same to them by good and sufficient conveyances. The defendants named in the bill are W. W. McFall, Walter Waggoner, E. W. Hersh, trustee, and Fannie H. Newman.

The contract made between Neal and wife and Hersh, made and recorded at the same time as the deed from Neal and wife to Hersh as trustee, for the Coal Belt National Bank of Benton, Illinois, which was made a part of the bill, contained an agreement on the part of Hersh as trustee to reconvey said premises free and clear of all incumbrances by said trustee, upon the payment on or before two years by Neal and his wife of their indebtedness to said bank and said Flatt, guardian, as evidenced by their promissory notes above referred to. The special grounds of demurrer relied on are, first, that it appears from the bill the deed under which complainants claim title to the premises was not executed until since the commencement of this suit; second, that it appears from the contract upon which complainants base their right to redeem that complainants are barred from asserting any rights to said premises; third, that the bill discloses that the premises are now owned by an "innocent third party, who has purchased the same for value without notice of the rights of complainants. It is assigned as error by appellants that the court erred in sustaining the demurrer to complainants’ bill and in dismissing the bill and rendering judgment against complainants for costs. .

The deed from Neal and wife to Hersh as trustee, and the agreement of the latter to reconvey upon the payment of certain indebtedness, constituted but one transaction, and it appears to us evident that the deed was made to secure the repayment of the money on or before the expiration of two years, and that it was not intended as an absolute conveyance to take effect at once for a consideration already paid. It is true that where a deed that is absolute in form is made and accepted as paying an antecedent debt and not as security for the repayment of the same, an agreement to reconvey in a certain time and for a certain sum does not of itself stamp the transaction as a mortgage. Devlin on Deeds, sec. 1115; Pitts v. Cable, 44 Ill. 103. But the deed and contract plainly bring this transaction within that provision of the statute which provides that “every deed conveying real estate which shall have been intended only as a security in the nature of a mortgage, though it be by an absolute conveyance in terms, shall be considered as a mortgage.” Bev. St., chap. 95, sec. 12 (J. & A. ¶ 7587).

The facts in the case as stated in the bill, however, show conditions sustaining the right to equitable relief, even if the deed and contract referred to do not together constitute a mortgage on the premises, because the judgment against Neal and wife in favor of Three-wit of September 13, 1909, was a lien on the premises in question and notice to the world. The premises under the agreement of Hersh were to be reconveyed if payment of the debt should be made within two years. Within two years the trustee conveyed the premises to Waggoner, who afterwards conveyed the same to McFall and he to Newman, and before the expiration of the time agreed on it appears from the bill that the proper parties were ready to pay the debt to the trustee and he refused to receive it. The eonvey"ance of the property under these circumstances certainly would not cut off the right to redeem possessed by the Neals or those claiming ilnder them. None of the parties defendant can be held to be innocent parties in interest, for the reason that not only the judgment but also the other instruments in writing relied upon by complainants were all matters of record and showed fully the condition of the title to the premises. A point most strongly insisted upon by defendants in error in support of their demurrer to the bill, and to sustain the ruling of the court thereon, is that the bill is multifarious for the reason that the rights of the two plaintiffs in error are inconsistent. There are two parties complainant, one of them, the said W. Gr. Three-wit, claims title to the premises in question by reason of a sheriff’s sale to him made under a judgment in his favor against Neal and wife. The other complainant, the said Hannah Zwengle, claims title through the purchase from the Neals of their equity of redemption and the deed conveying the same from them to her. It is true that the interests of the two complainants are to a large extent conflicting, although it is possible that Threewit may have some rights therein, with which the interests of Zwengle would not conflict, and it is also true that either one of these complainants might properly have been made a defendant. Both complainants, however, are necessary parties to the suit, and before either one of them can succeed in es-tablishing his or her rights they must overcome the claims of the defendants to the premises, and to that, extent their interests are identical. The first thing to be determined is, whether or not either one of the complainants have a right to equitable relief as against the defendants and, should that question be determined in the affirmative, the rights of the two complainants, can readily be adjusted under this bill. Being necessary parties, the fact that one of them might properly have been made a defendant is no obstacle in equity to the adjustment of the rights of all the parties including the two complainants. Sapp v. Phelps, 92 Ill. 588.

The order dismissing the bill for want of equity, and entering judgment against complainants for costs, will be reversed and the cause remanded with directions to the court below to overrule the demurrer to the bill of complaint, in order that such further proceedings may be had as equity may require.

Reversed and remanded with directions.


text:
    The People of the State of Illinois, Defendant in Error, v. Julius Keyser, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the County Court of Wayne county; the Hon. J. V. Heidinger, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against Julius Keyser, defendant, in the County Court of Wayne county, charging defendant with wife abandonment. The jury found defendant guilty. To reverse a judgment against defendant for costs, and ordering defendant to pay his wife $416 in weekly payments of $8 for the period of fifty-two weeks, defendant prosecutes this writ of error.
    It appeared that Julius Keyser and Leonne Shelton were married on September 30, 1911. Winfield Keyser, the father of Julius, owned a farm with a house thereon, in which he lived with his wife and Julius. The father and son operated the farm as partners and, after the marriage, the son brought the wife to the father’s home, and she became one of the family, helping the mother in the housework. In the meantime a son had been born, and the wife was soon to become a mother again. Prior to this time, the regard of defendant for Ms wife seems to have waned and at times he refused to speak to her. About October 10, 1913, about a month before her second child was born, he sold his interest to his father for $800, and taking that money with him, and without arranging for the care of his wife and child, went to the northern part of the State. When his wife asked him where he was going he made no satisfactory answer, and stated he was going to Mexico. The mother of Julius refused to take care of her daughter-in-law during her illness, so she was taken to her own mother, who then lived at Fairfield, where she and her two children have since resided. Defendant remained in the north until Christmas, during which time he neither wrote to his wife, nor sent anything for her support. He afterwards went to Mattoon, Illinois, for a short time and then returned to Ms father’s home, where he has since lived. On one occasion following his return, he came where his wife was living, but said that he came to see his son. Neither at that time nor afterwards did he offer to take his wife back, nor did she offer to return, and during this time she was supported by her parents. At no time while apart did he give her anything, prior to the commencement of this suit. Several months after the suit was commenced he gave her $1.50, and also furnished a small amount of secondhand clotMng for the children.
    Richard L. Boggs and Creighton & Thomas, for plaintiff in error.
    H. S. Burgess and William T. Bonham, for defendant in error; Patrick J. Lucey, of counsel.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Abstract of the Decision.

1. Husband and wife, § 274 —when evidence sufficient to sustain conviction for abandonment. In a prosecution charging defendant with a misdemeanor under Hurd’s Rev. St., ch. 68, sec. 24 (J. & A. ¶ 3431), providing that “every person who shall without good cause abandon his wife, and neglect and refuse to maintain and provide for her * * * shall be deemed guilty of a misdemeanor,” evidence held sufficient to warrant the - jury in finding defendant guilty.

2. Husband and wife, § 272 —what is nature of proceeding against husband for abandonment. A proceeding under Hurd’s Rev. St., ch. 68, sec. 24 (J. & A. ¶ 3431), providing that “every person who shall without good cause abandon his wife, and neglect and refuse to maintain and provide for her * * * shall be deemed guilty of a misdemeanor,” is a criminal proceeding and the amount ordered to be paid by defendant is in the nature of a fine assessed against him, although ordered by the statute to be paid to the wife.

3. Husband and wife, § 272 —how amount of penalty for abandonment determined. The amount of the penalty to be assessed against a defendant in case of conviction of wife abandonment under Hurd’s Rev. St., ch. 68, sec. 24 (J. & A. ¶ 3431), and to be paid to the wife as provided by the statute, is to be determined by the rules relating to the imposition of fines and not by those applicable to cases of separate maintenance.

4. Husband and wife, § 272 —when amount of penalty for wife abandonment in discretion of court. The amount of the penalty to be assessed against a defendant in case of conviction of wife abandonment under Hurd’s Rev. St., ch. 68, sec. 24 (J. & A. ¶ 3431), must be left somewhat to the discretion of the court.

5. Husband and wife, § 272 —when no abuse of discretion of court in fixing penalty for wife abandonment. Where defendant had been convicted of wife abandonment under Hurd’s Rev. St., ch. 68, sec. 24 (J. & A. ¶ 3431), an order that defendant pay his wife $8 a week for fifty-two weeks held not an abuse of discretion in fixing the penalty provided by such statute, where it appeared that at the time defendant abandoned his wife he had $800 in money, but made no provision for her, and that during a period of about a year and a half intervening between such abandonment and the trial he paid her $1.50 and gave her some secondhand clothes for their children, but made no other provision for her.


text:
    Mrs. George Grimm, Appellee, v. G. H. Lienemann and A. B. Rockwell, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Mrs. George Grimm, plaintiff, against G. H. Lienemann and A. B. Rockwell, defendants, in the Circuit Court of Madison county, to recover on a promissory note. From a judgment for plaintiff and against defendants on plea of set-off, defendants appeal. Defendants pleaded partial payment and set-off, and made tender of the balance. Trial by jury was waived. There were no propositions of law or fact submitted.
    It appeared that George Grimm, who owned a saloon in New Douglas, Illinois, died in July, 1910, and that the value of the stock and fixtures of the saloon there amounted to between $600 and $800. There was little other property, and the stock and fixtures were taken by the widow on her award. On September 6, 1910, George Grimm, Jr., as agent for his mother, sold the stock and fixtures to defendant G. H. Lienemann for his son-in-law, Eph Vinyard. At the time of his death, George Grimm, Sr., owned the Highland Brewing Company $175, so that it was necessary to get the consent of the company to make a transfer of the property. George Grimm, Jr., Lienemann and Vinyard called upon Eugene Schott, the president of the Brewing Company. Schott drew up an agreement which was signed by Vinyard and Grimm, Jr., the latter acting for his mother:

      “September 6th, 1910.
    “This agreement entered into between Geo. Grimm and Eph Vinyard, both of New Douglas, Illinois. Geo. Grimm agrees to sell his father’s saloon business in New Douglas, Illinois, to Eph Vinyard. And Eph Vinyard agrees to buy Geo. Grimm’s saloon business. They both agree that the stock of goods shall be invoiced. Geo. Grimm to select one invoicer and Eph Vinyard to select one invoicer; if these two cannot agree they shall select the third; then all three shall appraise the stock. The furniture of the saloon shall be priced by Eph Vinyard and Geo. Grimm and the price shall be what they will agree upon. Mr. Geo. Grimm promises to pay the Highland Brewing Company $125 for the note which they hold against his father and Eph Vinyard shall pay the Highland Brewing Co. $50. Mr. Eph Vinyard agrees to hold out the $125 of the amount of the invoice which Geo. Grimm agrees to pay the Highland Brewing Company, and Eph Vinyard agrees to pay the $125 to the Highland Brewing Company’s agent, Mr. Peter Watts.
    (Signed) Eph Vinyard Geo. Grimm.”
    Lienemann then paid the $50 and the stock was invoiced by two persons selected as agreed.
    At the time of the trial both parties who made the invoices were dead and the invoice was not in evidence. There was no evidence of that amount other than the facts and circumstances of the case and the testimony of George Grimm, Jr., Lienemann and Vinyard. The former testified to have written down the articles and added up the amounts at which they were invoiced and that the total was $777. Lienemann and Vinyard testified that the total was $652. The note sued on, for $252, was prepared at the request of Lienemann in the absence of George Grimm, Jr., and signed by Lienemann with A. B. Bockwell as surety. Lienemann also paid Grimm $400 and afterwards paid the Brewing Company the $125 provided for in the agreement to be paid by Grimm. Grimm made out and executed for Lienemann the following writing, which he called a bill of sale: “This is to certify that G-. H. Lienemann has paid $652 (six hundred and fifty two and 00/100 dollars) as full payment for stock of dram shop goods and fixtures belonging to estate of Geo. Grimm, Sr., deceased.
    Abstract of the Decision.
    1. Bills and notes, § 440

      —what constitutes prima facie case. In an action to recover on a promissory note, plaintiff establishes a prima facie case by proof of the note.
    2. Bills and notes, § 406

      —when burden on defendant to establish defense. Where the plaintiff establishes a prima facie case by proof of a note, the burden of establishing a defense by a preponderance of the evidence is upon defendant.
    3. Bills and notes, § 440

      —when evidence sufficient to sustain finding. In an action to recover on a promissory note, where defendant claimed set-off, and where the evidence as to set-off was conflicting, a finding for plaintiff and against defendant on his plea of set-off held sustained by the evidence.
    Geo. Grimm, Jr.
    Mrs. Mary Grimm,
    per Geo. Grimm, Jr.”
    Geers & Geers, for appellants.
    D. H. Mudge, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.


text:
    William M. Sweetser, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Commerce, § 6

      —what law governs duties and responsibilities of interstate carriers. Since the enactment of the Carmack amendment to the Interstate Commerce Act the law respecting the duties and responsibilities of common carriers of interstate shipments is to be found wholly in the acts of Congress as construed by the Supreme Court of the United States.
    2. Commerce, § 5

      —what is effect of Carmack amendment upon state regulations on liability for interstate shipments. In enacting the Carmack amendment to the Interstate Commerce Act, Congress manifested a purpose to take possession of the subject of the liability of a railway carrier for loss or damage to an interstate shipment, and all State regulations on the subject, including provisions of State constitutions or laws invalidating contracts limiting the carrier’s liability, are thereby superseded.
    3. Carriers, § 241

      —when provision of bill of lading requiring certain notice as prerequisite to recovery sufficient in form. In an action to recover for alleged negligent damage to a race horse while being transported in interstate commerce, language in the shipping contract providing that recovery for injuries to the property in transit will be barred unless the notice of the injury be given to the carrier within five days after the shipment, held plain and certain in meaning.
    4. Carriers, § 241

      —what is object of provision in bill of lading requiring notice of injury to shipment as prerequisite to recovery. Where a contract for the shipment of live stock contains a provision barring recovery for injury to the live stock transported unless notice of the injury is given to the shipper within a named time, the manifest object of such a provision is to force those claiming to have been damaged by the negligence of the carrier to present their claims promptly for adjustment, while the facts and circumstances on which the claims are based are fresh in the memories of parties and witnesses, and to prevent dishonest claimants from harassing or imposing upon the carrier.
    5. Carriers, § 241

      —when provision in bill of lading limiting time for presentation of claim valid. A provision in a shipping contract limiting the time within which a claim for damages for injury to live stock may be made, and fixing the manner and place of making it, is valid and binding when voluntarily and understanding^ entered into.

      6. Conflict of laws, § 21

      —what law governs validity of provision in contract for interstate shipment limiting time for bringing suit. Under the Carmack amendment to the Interstate Commerce Act the validity of a provision in a contract of interstate shipment that suit must be brought within a special period is a Federal question to be settled by the general common law, and the question is withdrawn from the operation of State legislation.
    7. Contracts, § 120

      —when failure of shipper to read contract no defense under Federal law. Under the Carmack amendment to the Interstate Commerce Act the fact that a shipper of live stock in interstate commerce did not read the contract of shipment at the time of signing it would not under the Federal law relieve him from the binding force of the provisions of the contract.
    8. Carriers, § 241

      —when provision in bill of lading limiting time for notice of injury valid. The duty required of a shipper by a shipping contract providing that recovery for injury to live stock shipped shall be barred unless notice of the injury is given to the carrier within five days is reasonable, and compliance therewith is not onerous.
    9. Carriers, § 241

      —when failure to give notice of injury to live stock within time limited precludes recovery. The failure of a shipper of live stock in interstate commerce to comply with a requirement of the shipping contract that notice of injury to the live stock be given to the carrier within five days is fatal to the right to recover for such injury.
    10. Appeal and error, § 1802

      —when remand on reversal unnecessary. In an action to recover for injury to a race horse in transportation in interstate commerce, where the shipping contract requires that notice of injury be given to the carrier within a named time, the testimony of plaintiff that he failed to comply with such requirement will obviate the necessity of a remand on reversal.
    Appeal from the Circuit Court of Madison county, the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed.
    Opinion filed December 1, 1915.
    C. E. Pope and H. F. Driemeyer, for appellant; Silas H. Strawn, of counsel.
    J. V. E. Marsh, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinioof the court.

Appellee obtained a judgment against appellant in the Circuit Court of Madison county, for the sum of $375, on account of injuries to a race horse owned by him. The injuries occurred under the following circumstances :

The race horse called Peter Pan, owned by appellee and in charge of Walter Hutchins, was in a race at Bowling Green, Missouri, but becoming lame was drawn from the race and soon thereafter, on August 8, 1913, was shipped by Hutchins, with two other horses, from that point to Alton, Illinois, over appellant’s road. At Godfrey, Illinois, the car containing the horses was set out of the train to be taken to Alton by a switch engine. This engine was carelessly managed in coupling onto the car, so that it struck the same with such force as to knock the horse down and severely injure him, and destroy its value as a race horse, which was shown to have been from $1,500 to $2,000 before the injury. At the time the horse was shipped, a shipping contract was prepared by appellant’s agent at Bowling Green and signed in duplicate, one copy being kept by the agent and the other delivered to Hutchins, and the freight bill to Alton, amounting to $19, was paid by Hutchins to the agent. The agent at Bowling Green testified Hutchins asked him the rate and he told him it would be $19, at a valuation of $100 each for the horses. Hutchins denies this and states when he applied to the agent the latter put him off until after the passenger train should have passed; that the freight train came in immediately behind the passenger and that he then ran into the depot, called to the agent, who brought the contract to the window where he signed it and ran to his car; that it was then 7:30 p. m., the light was poor and he could hardly see where to put his name; that he made no inquiry about rates and there was nothing said as to the valuation by the agent. The agent stated the time at which the contract was signed was an hour earlier.

A number of errors are assigned by appellant, but it seeks to reverse the judgment on two principal grounds: One, that the contract and appellant’s tariff schedule, duly published and on file with the Interstate Commerce Commission, each provided that at the rate of freight charged appellant’s liability was limited to $100 for any injury to each horse and that therefore the judgment was in excess of appellant’s liability. Second, that appellant was not liable for any amount whatever to appellee, because it was provided in section 11 of the contract that if any loss or damage of any kind should occur to the property named in the contract, the shipper should, within five days after the live stock in question had been shipped, give notice in writing of his claim therefor to the railroad company and that in the event of a failure of the shipper to give such notice, he released and should be barred from all claims of any kind or character against said railroad company, arising out of the injury or damage to said stock. Counsel for appellant in their brief contend that this being an interstate shipment, the whole subject-matter of the suit and contract governing the shipment is embraced and governed by the Federal Interstate Commerce Act as amended • by the Carmack amendment passed June 29, 1906; and that while the State courts have jurisdiction to try such cases, they must be governed in the trial by said act as amended and Federal decisions construing the same. The authorities cited by appellant support the position assumed by them, and show that by said act and the Carmack amendment, Congress assumed control of the subject of liabilities such as that in question and removed it from the control of the several States. In the case of Adams Express Co. v. Croninger, 226 U. S. 491, it is said by the Supreme Court of the United States upon this subject: “Neither uniformity of obligation nor of liability was possible until Congress should deal with the subject. '* * * That the legislation supersedes all the regulations and policies of a particular State upon the same subject, results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject and supersede all State regulation with reference to it. Only the silence of Congress authorized the exercise of the police power of the State upon the subject of such contracts. But when Congress acted in such a way as to manifest a purpose to exercise its conceded authority, the regulating power of the State ceased to exist. * * * The duty to issue a bill of lading, and the liability thereby assumed, are covered in full; and though there is no reference to the effect upon State regulation, it is evident that Congress intended to adopt a uniform rule and relieve such contracts from the diverse regulation to which they had been theretofore subject.” Our Appellate Court has held upon the same subject that: “The law respecting the duties and responsibilities of common carriers of interstate shipments is now to be found wholly in the acts of Congress as construed by the United States Supreme Court; that as declared by that court, Congress has so manifested a purpose in the Carmack amendment to take possession of the subject of the liability of a railway carrier for loss or damage to an interstate shipment as to supersede all State regulation upon the same subject, including the provisions of State constitutions or laws invalidating contracts limiting the carrier’s liability.” J. C. Shaffer & Co. v. Chicago, R. I. & P. Ry. Co., 185 Ill. App. 615 and Gamble-Robinson Commission Co. v. Union Pac. R. Co., 180 Ill. App. 256. The judgment of the Appellate Court in the case last named was reviewed and affirmed by the Supreme Court in 262 Ill. 400, and it was there said that the Carmack amendment to the Interstate Commerce Act “superseded all regulations and policies of the different States.”

Assuming therefore that the contract of shipment in this case must be governed by the Federal act, we must consider the effect to be given the provisions of this contract thereunder. If appellee is barred in his right of action by his failure to give five days’ notice of the injury to his horse, which failure is admitted by him, as provided for by section 11 of the contract, then it would be unnecessary and useless to discuss the question whether appellant is limited in his liability by other provisions of the contract, and for that reason the effect of section 11 should be first determined. The language of this section is plain and its meaning certain, wherein it provides that notice of the injury must be given within five days after the shipment or recovery therefor will be barred. This provision in a shipping contract is not an unusual one, and the validity of similar provisions has been frequently passed upon by State and Federal courts. It is stated in Black v. Wabash, St. L. & P. Ry. Co., 111 Ill. 351: “The manifest object of such a provision is to force those claiming to be damaged by the carrier’s negligence, to promptly present their claims for adjustment while the facts and circumstances upon which they are based are fresh in the memories of parties and witnesses, and to prevent being harassed or imposed upon by dishonest claimants.”

In Baltimore & O. S. W. R. Co. v. Ross, 105 Ill. App. 56, the court holds, for the reasons set forth in the case last above referred to, that such a provision is binding when voluntarily and understandingly entered into; and again in Baltimore & O. S. W. R. Co. v. Fox, 113 Ill. App. 180, it is held: “A provision limiting -the time within which a claim may be made and fixing the manner and place of making it, is also valid and binding.” In Clegg v. St. Louis & S. F. R. Co., 203 Fed. 971, the Federal Circuit Court of Appeals for the eighth circuit held a similar provision to be valid, and again in Missouri, K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 657, the Supreme Court of the United States holds that the Carmack amendment had withdrawn the determination of the validity of all stipulations in interstate shipping contracts from State law and legislation under that amendment; and that the validity of a provision that suit must be brought within a special period is a Federal question to be settled by the general common law.

Hutchins testified that he did not read the contract at the time he signed it but, even if he did not do so, this would not now relieve him from the binding force of its provisions under the Federal law. Atchison, T. & S. F. Ry. Co. v. Robinson, 233 U. S. 173; Missouri, K. & T. Ry. Co. v. Harriman Bros., supra; Great Northern Ry. Co. v. O’Connor, 232 U. S. 508, 8 N. C. C. A. 53. And it is to be observed that even if Hutchins did not read the contract at the time he signed it, he had ample time to do so before the expiration of the five days within which it required notice of damage to be given, and he could thereby easily have advised himself of this requirement of the contract. The duty provided for in this regard was not an onerous one, and from what is said in the foregoing authority, and as it appears from a reading of the same, it was a reasonable one and could readily have been complied with by appellee or his agent.

In Clegg v. St. Louis.& S. F. R. Co., supra, it is said upon this question: “We are clearly of the opinion that the eleventh provision in the contract above quoted, relative to giving notice, was a valid one, and the failure to give the notice fatal to plaintiff’s right to recover,” and many cases are there cited in support of this doctrine. Appellee or his agent might readily have given the notice of damage to his stock required of him by the contract, and having failed to do so he is, by virtue of the established rules of law abqve referred to, barred from any recovery in this suit. The judgment of the court below will be reversed, and as appellee himself testified that he did not give the required notice, and no recovery can be had in its absence, the case will not be remanded.

Reversed.