text:
    John R. Martin et al., Defendants in Error, v. P. J. Harsh et al., Plaintiffs in Error, and W. W. Rightsell, Defendant in Error.
    Bills of review—when do not lie. A bill of review does not lie because of error in the finding of facts by the court upon which the decree is founded.
    Bill to review, etc. Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded with directions.
    Opinion filed October 9, 1911.
    Rehearing denied November 8, 1911.
    E. E. Wright and W. K. Whitfield, for plaintiffs in error.
    E. J. Miller, for defendants in error.
   Mr. Justice Frost

delivered the opinion of the court.

At the March term of the circuit court of Moultrie county, 1908, all the defendants in error, except W. W. Rightsell, filed their bill to review a decree of the circuit court of Moultrie county that had been entered by that court in the case of P. J. Harsh against E. W. Sutton et al., wherein Harsh had exhibited a bill against the parties herein named as defendants in error, except Rightsell, to foreclose a certain mortgage upon a certain lot located in the village of Allenville, Illinois, and described as the west half of lot 5 in Allen-ville, Illinois, said mortgage securing a note for $210.50 of date February 22, 1905, given by E. W. Sutton and Joseph Sutton, to one Frank Glover, and endorsed by Glover to A. B. McDavid and by McDavid endorsed to Harsh. The foreclosure proceedings were contested and a decree was entered by the circuit court of said county at a term in September, 1906, ordering foreclosure. All the defendants in that proceeding, excepting A. B. and Irene McDavid, prayed an appeal to this court, which appeal was allowed. No appeal or writ of error was ever prosecuted from that decree, and it stands in all respects in full force and unreversed. The hill to review sets out the entire proceedings in the foreclosure case, including the pleadings and all the evidence taken before the master and his findings, and the action of the court on the exceptions and the final decree of the court. The bill alleges several reasons why the original decree should he reviewed. Defendant in error, W. W. Bightsell, asked leave to he made a party and to file a cross-bill. This was allowed, hut no cross-hill was filed hy him. Plaintiff in error, Harsh, entered a motion to strike the hill +o review from the files, which motion was overruled and Harsh filed a general and special demurrer to the hill. After a formal amendment to the hill, plaintiffs in error each filed a general and special demurrer to the amended hill; the demurrer was overruled hy the court and plaintiffs in error elected to stand hy their demurrer, and a decree was entered as prayed in the amended hill, setting aside the foreclosure decree as wrongfully entered, finding that Harsh was not entitled to a decree, setting aside the master’s sale thereunder, and cancelling the certificate of sale issued hy the master to P. J. Harsh. Prom that decree plaintiffs in error have brought the case on error to this court.

A reading of the hill of review shows that it seeks to have the former decree reviewed because of error in the finding of facts hy the court upon which the decree was founded. This is not the office of a hill of review. As a general rule the question in hills of review is not whether the facts found in the decree under review are in accordance with the evidence, hut whether the court has correctly applied the law to the facts- as found. Bruschke v. North Chicago Schuetzen Verein, 145 Ill. 433.

If the findings of fact are not supported by the proofs the remedy is by appeal or writ of error. Ebert et al. v. Gerding et al., 116 Ill. 216.

“The two grounds upon which a bill of review, or bill in the nature of a bill of review, will lie, are errors of law appearing on the face of the decree without further examination of facts, and new fact or facts discovered since the decree, which are material, and which it was impossible for the party to produce at the time the decree passed. ’ ’ Knobloch v. Mueller, 123 Ill. 554.

In regard to errors of law apparent upon the face of the decree the established doctrine is that you cannot look into the evidence in the case in order to show the decree to be erroneous in the statement of facts. That is the proper office of the court upon appeal. By taking the facts to be as they are stated to be on the face of the decree you may show that the court 'has erred in point of law. Story’s Equity Pleading, (9th Ed.) sec. 407.

The decree herein will therefore be reversed and the cause remanded to the circuit court, with directions to sustain the demurrer to the bill of review.

Reversed, and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Frost

license: Public Domain

text:
    Maude Alice Cline et al., Appellees, v. August Buddemeier, by Miller Winston, his Conservator, Appellant.
    1. Practice—section 34 of act construed. Section 34 of the Practice Act merely shifts the burden of proof upon the defendant to show that too many or too few persons are joined as plaintiffs, and this he may do under the general issue.
    2. Husband and wipe—effect of appointment of conservator upon marital relation. The appointment of á conservator for the husband because of his enfeebled condition, etc., does not absolve the wife from her marital obligations and permit her to live separate and apart from him.
    3. Husband and wipe—what essential to recover for necessaries. In order to sustain a recovery for necessaries furnished to the wife it must appear that the wife is living separate and apart from her husband either without her fault or by mutual consent.
    Appeal from the County Court of Champaign county; the Hon. William Q-. Spurgin, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed October 9, 1911.
    Henry I. Green, for appellant.
    Bay & Dobbins and D. C. Dobbins, for appellees.
   Mr. Justice Frost

delivered tlie opinion of the court.

Appellees, Maude Alice Cline, and her sister, Julia Ethel Cline, daughters of Moranda Buddemeier, wife of appellant, August Buddemeier, since deceased, brought suit at the November term, 1910, of the County Court of Champaign county, to recover for necessaries claimed to have been furnished by them to their mother, alleging that she was living separate and apart from her husband, either by the mutual consent of herself and husband, or without fault on her part. After the commencement of the suit, Miller "Winston was appointed conservator for August Buddemeier, and the cause was thereafter defended hy said conservator. Upon the trial a verdict for $505 was returned in favor of appellees, and judgment entered thereon against defendant, and this appeal is taken by Miller Winston as conservator. Moranda Buddemeier and August Buddemeier, at the time of their separation, had been married about nine years. He was over seventy-five years of age and she was sixty-four years of age. It was a second marriage for both. It is quite evident from the reading of the record that Moranda Buddemeier, at the time of the separation, desired no longer to live with her husband. According to the testimony of John Buddemeier and his wife, and Sam Buddemeier, the reason Moranda Buddemeier gave for leaving her husband was that she had spent the best years of her life taking care of him when she ought to have been enjoying herself, and that it was worth twenty-five dollars a week to take care of him. She claims that a short time before leaving, a month or six weeks perhaps, in their front yard, while cleaning a carpet, August Buddemeier struck her. The witness Bogers, who was present at the time, testified that no such thing took place. John Buddemeier testified that Moranda Buddemeier told him that they were trying to beat a carpet and that his father got mad at her and shook his fist at her. Mrs. John Buddemeier testified that Moranda “Buddemeier told her that they were taking the carpet past a plum tree, and that Mr. Buddemeier got caught on a limb and scratched his face, and that Moranda Buddemeier laughed and that he told her not to laugh and shook his fists; that witness asked Moranda if Buddemeier had struck her, and that she said, “No, if he had I would have gone long ago.” Mrs. Moranda Buddemeier testified that she occupied the same bed with her husband- that night, and continued to sustain apparently amicable relations with him until she concluded to leave. No other adequate cause for separation is shown. There was some evidence of negotiations between Buddemeier and his wife looking toward a separation by mutual consent, but it does not appear from the evidence that any such agreement was definitely entered into, and Mrs, Buddemeier, in her testimony, does not mention any such agreement, except that the parties went to Mr. Green’s office, presumably for that purpose, but that they did not make any agreement, and as Mrs. Buddemeier says, “After I left Mr. Green’s office we went back to Sydney on the same train; slept together that nighty and every night except three nights until I left, which was the first of November.”

The verdict included a doctor’s bill of $150 said to have been paid by Julia Ethel Cline, individually, and was not a joint demand. There was no plea denying joint right of plaintiffs as to this item, and so in the first instance no proof was necessary to be made, but when the proof showed that the claim was an individual one of Julia Ethel Cline, then we think that the motion to strike it out should have been allowed. Section 34 of the Practice Act merely shifts the burden of proof upon the defendant to show that too many or too few persons are joined as plaintiffs, and this he may do under the general issue. McKone v. Williams, 37 Ill. App. 591; Snell v. DeLand, 43 Ill. 323.

There is no evidence in the record that any doctor’s bill was paid or of the value of any physicians ’ services rendered to Mrs. Buddemeier, except that Mrs. Buddemeier said, “I got $15 worth the first of each month. I presume it was paid for at the end of each month. Ethel paid for it, and I don’t know as I saw a single payment made.” This is the only evidence in the record concerning the $150 doctor’s bill, and it proved neither the value nor the fact of payment either by Ethel or anyone else.

The instructions given in the case were quite numerous and lengthy, much beyond the necessities of the case, and we think several of these on the part of appellees were erroneous. The 17th instruction given for appellees tells the jury that it was the duty of the conservator to care for Buddemeier, and to pay for his care out of his estate, and that the conservator had no right to require Mrs. Buddemeier to live with Buddemeier, and look after him; that such duties devolved upon the estate of said Buddemeier under the care of said conservator. This instruction practically tells the jury that the appointment of a conservator for a husband absolves the wife from all marital duties, and throws the burden of personal care upon the conservator.

After defendant’s wife left him, the conservator was obliged to employ another woman to give him the care a wife should bestow, and the instruction sanctions her refusal to return and perform the duties her marriage relation and obligations required, and informs the jury that such duties fell upon the conservator.

The 18th instruction repeated the proposition laid down by the 17th in even stronger terms. It stated that it became the duty of the conservator to use the income of the estate as far as it became necessary to support Buddemeier and his wife, and the fact that she may have chosen to live separate and apart from her husband, after he became distracted," will not relieve the conservator from paying for the reasonable and necessary expenses of his wife. The 21st instruction tells the jury that if a married man has been found by a competent court to be distracted, he no longer has the power to dictate where his wife shall reside. After hearing these instructions, which inform the jury almost in express terms that Mrs. Buddemeier could do as she chose after her husband became distracted, and the conservator must pay the bills, there was little for the jury to do hut find a verdict for the plaintiffs. Several other instructions of appellees are subject to criticism, but we do not deem it necessary to point out their faults, as we think there is sufficient reversible error in those indicated.

The case was at least close upon the right of appellees, under the circumstances, to charge Buddemeiér’s estate, and the instructions should have been accurate upon that question.

If Mrs. Buddemeier had no right to leave her husband’s home, and live with her daughters, they could not charge her husband’s estate with her keeping. It was part of their case for them to prove that either by mutual agreement or the husband’s conduct, she was entitled to live away from his home. The necessity for this proof was wiped out by plaintiffs’ 17th, 18th and 19th instructions; nor do we think that the case in this particular was sustained by a preponderance of the evidence.

For the errors indicated the judgment will be reversed and the cause remanded.

jReversed and remanded.


text:
    Frank Supple, Appellant, v. Charles Kaufman, Appellee.

      Damages—when reversal not ordered to permit recovery of nominal damages. After two verdicts have been rendered in favor of a defendant the second verdict will not be set aside if the evidence will support the same in order to enable the plaintiff to recover merely nominal damages.
    Action commenced before justice of the peace. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.
    Rehearing denied November 8, 1911.

      Lester H. Martin, Louis Fitz Henry and Herrick & Herrick, for appellant.
    Sigmund Livingston and William E. Bach, for appellee.
   Mr. Justice Frost

delivered the opinion of the eonrt.

This case was originally brought in justice court, and on appeal to the circuit court of McLean county has been twice tried, the verdict of each trial being for appellee. From a judgment against appellant for costs appeal is taken to this court. The case is upon a contract made in October, 1907, whereby appellee agreed to deliver to appellant on or before January 1, 1908, 1,500 bushels of corn at 50 cents per bushel. Appellee claims he was ready to deliver the corn in November and December, and would have done so but for the action of plaintiff in refusing delivery, as he testifies, and that he was thereby released from his contract. Appellee claims also that the price of corn, during the time delivery was to be made under the contract was below 50 cents per bushel, and therefore appellant sustained no injury beyond nominal damages. Appellant claims that an extension of the time of delivery was made at the instance of appellee, with no certain time fixed for delivery, and that he wrote appellee a letter March 9, 1908, asking appellee when he would deliver the corn; that appellee made no reply but sold his corn in the same month to another dealer for 51 cents per bushel. There was some conversation between the parties concerning the corn early in January, 1908, the result of which was that appellee refused, as he testifies, to deliver the corn upon the conditions as to its quality required by appellant, and which were different, as appellee says, from the contract. Appellee testifies that appellant then demanded a settlement on account of such refusal. The jury could properly have found from the evidence that appellee had been released from his contract to deliver by the refusal of appellant to take the corn before January 1st, or if the time was extended generally, as appellant claims, that early in January, 1908, appellee refused to deliver the corn. Appellant’s right to damages would then be fixed by the date of such refusal, and as the price of corn was then not over 50 cents a bushel, only nominal damages wonld result.

The jury were fully instructed as to the law of the case and we do not think there was any reversible error in refusing to give instructions asked by appellant or in the giving of those for appellee.

This case having been twice tried, with a verdict each time for defendant, we are of the opinion this judgment ought not to be reversed to allow the plaintiff to recover nominal damages only, when the evidence will support a verdict for the appellee. In our opinion the judgment ought to be affirmed.

Affirmed.


text:
    Joseph H. Morse, Appellant, v. John Fuller, Appellee.
    1. Trial—when refusal to re-open ease will not reverse. It is within the sound discretion of the court to refuse to re-open a case to permit the introduction of additional testimony and the exercise of such discretion by the court will not result in reversal unless an abuse is shown.
    2. Trial—when giving defendant opening and closing will not reverse. Even though the court may improperly give to the defendant the opening and closing arguments, such action will not result in a reversal, as the error is not sufficiently prejudicial.
    3. Instructions—when errors will not reverse. If a case is not close on the facts and the evidence sustains the verdict rendered, errors in instructions will not necessarily work a reversal.

      Appeal from tlie Circuit Court of DeWitt county; the Hon. W. Gr. Cochean, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.
    William Monson and Edward J. Sweeney, for appellant.
    L. O. Williams, for appellee.
   Mr. Justice Frost

delivered the opinion of the court.

This is an action brought by appellant to recover from appellee, an attorney at law, the amount of two notes which appellant claims he placed in appellee’s hands for collection. Appellee claims he purchased the notes as agent for and with the money of one Griffith. A verdict and judgment was had for appellee, and this appeal is taken from that judgment.

It appears from the evidence that appellant was the owner and holder of two certain notes executed by one Joe B. Spicer, one of date June 17, 1904, for $300, due in ninety days, payable to appellant’s order, and the other, of $500, of date July 15,1904, due in six months, payable to the order of George B. Morse, and by Morse endorsed to appellant. Appellant claims that on August 1, 1904, he went to appellee’s office and borrowed $200 from appellee and as collateral security, delivered to appellee the $300 note; that some weeks afterwards he again visited appellee’s office, taking with him the $500 note mentioned and asked appellee if he could collect the two notes and appellee said he thought he could and that he then told appellant he would have to endorse both notes in order that judgment might be taken in another’s name; that appellant then told appellee that when the notes wfere collected appellee should take out what appellant owed him, viz., the $200 previously borrowed, and another item of $120, and a $50 fee for the collection of said note; that he then turned over to appellee the $500 note.

Appellee afterwards, in December, 1905, obtained judgment in the name of Melvin M. Griffith on said notes for $866.23 and costs, and collected $700 on said judgment June 14, 1909. Appellee claims that on August 1, 1904, appellant owed him the sum of $120, money borrowed April 21, 1901, and $126 for a horse which appellant had bought at an administrator’s sale made by appellee in 1900 and that in consideration of such indebtedness and the further sum of $200 paid by appellee to appellant on that date appellant sold the notes; that the sale of said notes was made to Melvin M. Griffith, for whom appellee was then acting as agent, having in his possession, as he says, considerable money belonging to Griffith and that he repaid himself for the amount of appellant’s indebtedness to him and the $200 advanced from the money of Griffith, then in appellee’s hands.

Appellant was a witness for the plaintiff in the suit of Griffith against Spicer and testified that he sold the notes outright. Griffith also testifies that the notes were purchased for him, and appellee testifies to the same effect.

At the close of all the evidence the trial court, over the objection of appellant, allowed appellee to withdraw the plea of the general issue and to have the opening and closing arguments. Appellant insists this action of the court was erroneous. Appellant also insists that appellee’s fourth instruction to the jury, to the effect that the burden was on appellant to show by a preponderance of the evidence that the notes were left with appellee for collection, was erroneous and that the court erred in not permitting appellant, after the close of all the evidence, to introduce a bank book showing a payment of a hundred dollars to appellee, which he says was made on account of the purchase of the horse. Appellant also claims that the court erred in modifying one of his instructions given to the jury, by adding the words, “less any payments which, the evidence shows have been made by Fuller on said amount,” when there was no proof of any payments being made by Fuller, as he says.

It was a matter of discretion with the trial court whether or not he would allow evidence to be introduced after the case had been closed. It was not error on the part of the court in refusing to open the case to admit the proffered evidence.

With reference to the action of the court in allowing appellee to have the opening and closing arguments, we can only say that if this was an error it was not of such a serious character as to require a reversal of this case. In the case of Carpenter and others against the First National Bank, 119 Ill. 352, it is said on page 357: “Whether a plaintiff or a defendant shall have the opening and close of the case ‘is generally deemed a matter of discretion to be ordered by the judge of the trial, as he may think most conducive to the administration of justice,’ I Greenleaf on Evidence, sec. 76.” In Huddle v. Martin, 54 Ill. 258, where the defendant, having admitted plaintiff’s account and set up payment, held the affirmative, and, so, was entitled to open and conclude his case, but was not allowed to do so, it was held, that such an error “would not be sufficient to reverse a judgment just in itself, when a fair trial had been had upon the merits and on proper instructions.” Upon the same subject it was said, in Kells v. Davis. 57 Ill. 261: “So slight an error in practice ought not to be a ground for the reversal of a judicial proceeding in all other respects regular and that does justice between the parties.”

As to the modification of appellant’s instruction number 3 by adding the words: “less any payments which the evidence shows have been made by Fuller on said amount,” we do not regard this reversible error, as.it might well.refer to the amounts which appellant admits he owed appellee and which of conrse should he deducted.

As to the varient instructions with reference to the burden of proof, we can only say that if this case was close upon the facts the giving of appellee’s fourth instruction might call for a reversal of the case hut it appears from the evidence that appellant had himself testified on a former trial that he sold these notes to Fuller and he admits on this trial -that he gave such testimony and with the testimony of Fuller and Griffith to the same effect it leayes little room for doubt that appellee’s version of the transaction was correct and that the notes were sold by appellant to appellee as agent of Griffith and not left with him for collection.

We are of the opinion that the verdict of the jury was correct upon the merits of the case, and that the errors assigned are not sufficient to call for a reversal. The judgment will he affirmed.

Affirmed.


author: Mr. Justioe Frost

text:
    Henry B. Dines, Appellee, v. Arthur B. Dussair et al., William M. Dickason, Appellant.
    1. Decrees—when cannot he collaterally attacked. A decree of sale in partition cannot be attacked upon the ground that a cross-bill filed in the suit was not germane in a proceeding for a rule against a bidder at the sale to show cause why he has not made good his bid.
    2. Sales—what order appropriate upon decreeing second judicial sale. If the bidder at a judicial sale fail to make good his bid after having been given opportunity so to do a second sale may be ordered by the court at the risk and expense of such bidder.
    3. Sales—rule applicable to judicial. At judicial sales there is no warranty of title and the maxim caveat emptor applies. .The purchaser ■ runs all risks of title at such sales.
    Partition. Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 9, 1911.

      Hubbard, Schmiedeskamp & Groves, for appellant.
    Cyril W. Armstrong, for appellee; Homer D. Dines, of counsel.
   Mr. Justioe Frost

delivered the opinion of the court.

A-hill for partition was filed by Henry B. Dines against Arthur B. Dussair et al. in the Circuit Court of Adams county, at the March term, 1910. April 8, 1910, Arthur B. Dussair filed a cross-bill in said suit bringing into the case the property in question, namely, lot eight in block two of Boulevard Place Addition to the city of Quincy, Illinois, and a decree for sale was thereafter ordered by the court. At the June term, 1910, the master in chancery of said court reported that he offered the real estate described in the amended bill and cross-bill for sale as decreed, and that appellant, William A. Dickason, had not paid the amount bid by him for said lot eight. Pursuant to motion of cross-complainant, Dussair, a rule was entered by the Circuit Court, June 20,1910, against Dickason to show cause by June 22,1910, why he did not comply with his bid. Dickason answered the rule in the form of a petition, admitting the purchase by him of said lot eight, and stating that the lot was vacant; that when he bid he was ignorant of any defect in the. title; that he had had the title.to said lot examined by an attorney, and that the attorney reported the partition proceedings irregular and the title unmerchantable in that one Sheer was in possession of a part of said lot; that the court had no jurisdiction to enter the decree; that Henry B. 'Dines had no interest in the property, and that the same was improperly brought into the case by cross-lull, which was not germane to the original bill.

On the same day, June 22, 1910, on motion of cross-complainant, Dussair, Sheer was made a party defendant to the cross-bill and said Sheer entered his appearanee, waived service, and disclaimed any interest in or right of possession to said lot 8. December 9, 1910, a decree was entered, finding that Dickason had no excuse for non-compliance with his bid and ordering a resale of said lot 8 in 10 days, providing Dickason failed to make good his former bid; said sale to be at the risk and expense of said Dickason, and under the same terms and conditions as specified in the original decree.

Appellant asserts that said lot was brought into the case by cross-bill, which was not germane to the original bill, and therefore the court had no jurisdiction and the decree was void. The original bill sought partition of lands as between Henry B. Dines, complainant, and the widow and heirs at law of John C. Dussair. The cross-bill of Arthur B. Dussair, one of the defendants in the original bill and an heir at law of John C. Dussair, sought partition of said lot 8 as between himself and the widow and other heirs of John C. Dussair. The widow is given a life interest by will in all the property described in the bill and cross-bill. It is unnecessary to decide whether the cross-bill was germane to the original bill or not. The court had jurisdiction of the subject-matter of the suit and the parties, and the decree of sale is binding upon all parties until reversed, and cannot be inquired into collaterally. Swiggart v. Harber, 4 Scammon 364.

It is claimed the report of the master does not show that Dickason refused to comply with his bid. The report shows that Dickason failed to comply with his bid sufficiently to constitute a refusal.

It is further claimed that the order appealed from is erroneous because it required that the sale be made at the expense and risk of Dickason. "We see no error in this as it is in accordance with the rule laid down in Hill v. Hill, 58 Ill. 239, and Thrifts v. Fritz, 101 Ill. 457.

At judicial sales, there is no warranty of title, and the maxim caveat emptor applies. The purchaser runs all risks of title at such sale. Bassett v. Lockard, 60 Ill. 164.

Perceiving no error in the record the order appealed from is hereby affirmed.

Affirmed.


text:
    Tracy O. Pierce, Appellee, v. Chicago & Alton Railroad Company, Appellant.

      Verdicts—when set aside as against the evidence. A verdict manifestly against the weight of the evidence will be set aside on review.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed.
    Opinion filed October 9, 1911.
    ' Patton & Patton, for appellant; Silas PI. Strawn, of counsel.
    T. J. Condon and Albert Salzenstein, for appellee.
   Mr. Justice Frost

delivered the opinion of the court.

This is an appeal from a judgment entered in the Sangamon County Circuit Court in favor of Tracy 0. Pierce, for $7500 damages, for personal injury sustained by him on account of the alleged negligence of appellant at a private crossing of appellant and its railroad tracks in the unincorporated village of Fancy Prairie, Menard county. At Fancy Prairie appellant’s depot is on the west side of its right of way, and about 800 feet north of the depot is a grain elevator, the greater part of which is upon private property of the elevator company, but having a projection out upon the right of way of the appellant extending westwardly into the right of way about 18 feet, and being in width north and south about 40 feet. At the depot there is one track, being the main track, and the south end or stub end of what is known as the business track which is on the west side of the main track, and this business track runs north for a considerable distance past the elevator. About one-third of the right of way from the depot to the elevator a short business track branches out from the main track on the east side and runs up a short distance past the elevator so that there are at the elevator and on the right of way of the appellant, three tracks, first, the business track on the easterly side of the right of way; second, the main track about the center of the right of way; and third, the business or passing track on the west side of the main track. Near the point where the elevator building projects into the right of way there is a cross-over from the main track to the west business or passing track, and the switch points of this cross-over in the main track are practically due west of the southwest corner of the projecting portion of the elevator. The road to the elevator by which business goes to and from the elevator is along a street running north and south, west of the right of way of the appellant to a point about 600 feet north of the depot, where a turn is made to the east, and a private driveway comes from that street across the right of way and tracks of the appellant to the elevator property, and this crossing over the tracks consists of planking sixteen feet wide, filled in with cinders. After crossing the tracks this driveway turns to the north on the elevator property and makes a loop around the elevator coming back to itself just south of the elevator office. This is the only method by which teams or the public having business with the elevator have any legitimate means of getting to and from the elevator.

John W. Pierce, the father of appellee, was the agent of appellant at Fancy Prairie, and he was also agent of the Western Union Telegraph Company. On December 10, 1906, about five o’clock in the evening, Mr. Pierce as agent for the telegraph company, received a telegram for Mr. Shaw, who was the manager of the Farmers’ Elevator. About the time that the message was received, appellee, Tracy 0. Pierce, who was then about eight years of age, came into the depot and his father gave him the message, and directed him to take it to Mr. Shaw at the elevator and to return if there was any answer, and the little boy started away with the message, and shortly after leaving the depot he met his older brother, Forrest Pierce, and another little boy, named Orrin Constant, and the boys proceeded on up the track upon the right of way of appellant toward the elevator. About this time appellant’s south bound train arrived on the main track and stopped a little north of a switch situated a short distance west of the elevator and the brakeman got off the train and threw the switch to allow appellant’s north bound train, then arriving, to enter the passing track west of the main track. After appellee had delivered his message to the elevator he joined the other boys and they engaged for a few minutes in playing with the brakeman and throwing kernels of corn at each other and then appellee started south to the depot.

Appellee, Tracy 0. Pierce, claimed that when he started south to the depot he went around the road back to the crossing, when the brakeman, in trying to get on the engine, on its east side at the crossing, ran against him and knocked him under the engine and one of his legs was injured so that amputation was necessary.

On the part of appellant, it is claimed that the brakeman was not at any time near the crossing where appellee was injured; that the brakeman boarded the engine on its west side at a point over one hundred feet north of the crossing; that appellee was a trespasser upon appellant’s right of way, and was injured through his own negligence, in attempting, as appellant believes to “flip” appellant’s south bound train as it passed him, at some point other than the crossing.

The proof to substantiate appellee’s case, rests wholly upon his testimony and that of his brother, Forrest Pierce, who was fourteen years of age at the time of the accident. The case has been tried twice. The first trial resulted in a disagreement of the jury. It is claimed by appellant that the testimony of appellee and his brother is different than that given by them at the first trial and that the direct testimony of both on this trial differs materially from that given by them on cross-examination, and for these reasons the testimony of both is unreliable and unworthy of credence. Appellee testified on this trial: “When I started back to the depot I went around the road back to the crossing. I had just left the crossing going back to the depot, and the train was going south slowly, for it had just started out. The brakeman was trying to get on the engine, when he pushed against me and knocked me under the engine.” On his cross-examination he states: “When I started I left the brakeman there at the switch and the boys throwing corn and I walked south towards the crossing. • I was walking on the outside of the business track (referring to the east business track); I walked along east of the business track but I wasn’t close to the' end of the ties. I don’t think I was on the right of way. I don’t believe I was walking on the cinders alongside the east side of the business track.” His cross-examination on the last trial showed a singular want of recollection of his testimony given on the first trial with reference to the course he took in walking south from the switch. The cross-examination of Forrest Pierce developed the fact that he was uncertain as to the testimony given hy him on the former trial with reference to the course his brother took in going south, after leaving the brakeman at the switch.

We have examined the testimony of appellee and his brother Forrest carefully and are fully convinced that it is not sufficiently dependable to sustain this verdict as against the testimony adduced by appellant. The statement of the engineer, Muhl, which was received in evidence by stipulation, shows that the bralceman, Radford, remained at the switch until after the north bound train passed; that he then threw the switch and came back and got upon the engine upon its west side and that he, Muhl, first knew of the accident from a message to the conductor received at Sherman, Illinois. Radford, the brakeman, who, at the time of the last trial, was not in the employ of appellant, testified that he did not at any time walk or run south of the switch; that after he threw the switch, he walked across the track west and gave the starting signal to the engineer and got upon the engine on its west side, and that he did not run into appellee as claimed, and that the first he knew of the accident was at Sherman, Illinois, and that he learned it from the conductor. Harry Rhea, an assistant traveling engineer, who was on the engine, testified that when Radford gave the signal to proceed, Radford was standing opposite to the switch lever on the west side of the main track, between that track and the switch track, and that after giving the signal, Radford did not go over east of the main track; that upon receiving Radford’s signal, Muhl, the engineer, started the engine, and that as it passed Radford, he got on the engine on the west side of the main track and did not get oft again.

The testimony of these witnesses is perfectly consistent with the usual method of doing the work required, and is in all respects natural and probable. It is not probable that a brakeman would give a starting signal to his engineer from a side opposite to the one occupied by the engineer, and allow the train to go past him for one hundred feet and then run to get on the engine. It is also extremely improbable that appellee should have been pushed under the engine and no one on the engine know of the accident at the time.

We are of the opinion that the verdict in this case is against the weight of the evidence as to the negligence charged against the defendant. In our view of the case it does not seem necessary to decide whether appellee was a trespasser upon appellant’s right of way or not.

We find in this case that the evidence establishes the fact that appellant was not guilty of the negligence charged in the declaration and for this reason the judgment will he reversed.

Reversed.

Finding of fact to he incorporated in the record: We find as a matter of fact that the defendant was not guilty of any act of negligence charged against it in plaintiff’s declaration.


author: Per Curiam.

text:
    The First National Bank of Lincoln, Appellant, v. Lulu Sandmeyer et al., Appellees.
    1. Appeals and errors—when cross-errors not considered. Cross-errors not assigned but merely argued will not be considered.
    2. Administration op estates—statement of claim not equivalent to declaration. A party presenting a claim against an estate is not limited in his right to recover to the particular grounds stated in such claim.
    3. Negotiable instruments—when aet applies. If the instrument negotiated is negotiable in character and its negotiation was effective as a commercial transaction the Negotiable Instrument Act applies to recover the rights and liabilities to such instrument. ^

    4. Negotiable instruments—when presentment, etc., essential to charge endorser, (jf a note be given for the accommodation of a firm of which the endorser is a partner it is not deemed to have been' given for the accommodation of such endorser within the meaning of section 132 of the Negotiable Instrument Act so far as to preclude the necessity for presentment and notice of dishonor^
    Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 20, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Blinn & Covey and C. Everett Smith, for appellants.
    King & Miller and Beach & Trapp, for appellee.
   Per Curiam.

This suit was commenced by appellant filing a claim against the estate of the testator in the county court of Logan county. Appellees defend as executors. The claim as filed was as follows:

“State of Illinois, Logan County, ss. In the County Court, June term, A. D. 1909.”
“Frank Hoblit, Cashier of the First National Bank of Lincoln, Illinois, being duly sworn, on oath says, that the annexed account against the estate of Frank Frorer amounting to the sum of Five Thousand Eighty-seven dollars and Fifty cents, is just and unpaid, after allowing all just credits, and is now due and owing to the First National Bank of Lincoln, Illinois. ’ ’

On account of a certain guarantee of a certain promissory note, a copy of which is hereto attached under date of September 20, 1907, for the principal sum of $5000 with interest at the rate of six per cent per annum from date, said note being made by John D. Evel- and and payable to himself and by him endorsed on the back thereof, and the payment thereof being guaranteed by the said Frank Frorer, said note having on the back thereof also the following endorsements: “Or. Int. to 3-1-8. ” ‘'‘ Or. 150 Int. to 9-1-8, ’ ’ “And Cr. 150 Int. to 3-1-9.”

Omitting the provisions with respect to confession of judgment, etc., the language of the note is as follows : _

“Lincoln, Ill., Sept. 2nd, 1907:
“On or before six months after date, I promise to pay to the order of myself, at the First National Bank of Lincoln, Illinois, at its office, Five Thousand dollars, value received, with interest at six per cent per annum from date, and seven per cent.per annum after due.
“John D. Eveland.”

At the time the note was presented at the appellant’s bank and accepted by it, there appeared endorsed across the back of it the name of John D. Evel- and, the maker-payee, and under his name was endorsed the name of Frank Frorer, appellees’ testator. These endorsements were in blank.

The case proceeded to trial and judgment in the county court and an appeal was perfected in apt time and due form to the circuit court where the case was tried de novo by a jury. At the close of all the evidence, appellant moved the court for an instruction directing the jury to find for the plaintiff the amount of the note and interest. Appellees moved the court for an instruction directing the jury to find for the defendants. The court denied appellant’s motion, granted that of appellees and directed a verdict in their favor, which was so returned by the jury, and judgment was rendered by the court thereon. Appellant excepted and has perfected and duly prosecuted its appeal to this court.

During the progress of the trial in the circuit court, that court admitted the testimony of a number of witnesses over appellees’ objections both as to the competency of the witnesses and the relevancy of the facts testified to by them. Counsel for appellees contend in their brief and argument that these witnesses were incompetent under section 2 of the Evidence Act, by reason of their interest in the event of the suit; that the trial court erred in admitting their testimony and, as we understand them, insist that this court should exclude or disregard all of it in the consideration of this case.

This court cannot consider cross-errors urged by an appellee or defendant in error, unless they are assigned on the record. It is not sufficient to discuss them in the brief and argument. In the case at bar no cross-errors are assigned on the record. In Provart et al. v. Harris et al., 150 Ill. 40 (49), the court says: “Appellants were permitted to testify in their own behalf over the objection of appellees. No cross-error is assigned questioning the correctness of this ruling and it is not, therefore, presented for decision. ’ ’ In Traynor v. Palmer, 86 Ill. 477 (489), it was said: “The evidence * * * fully shows valid assessments * * *, and the only question is as to its competency. If it is competent, it is sufficient. But the question of its competency could only arise on cross-error assigned on the ground of its improper admission, and no cross-errors are assigned.” Heineck v. Grosse, 99 Ill. App. 443; Battenhausen v. Bullock, 8 Ill. App 312. Such testimony can only he disregarded by an appellate court where errors have been duly assigned. 125 Ill. 573.

The note specified in the claim filed by appellant against the estate of appellees’ testate, in the county court, with all the endorsements thereon, together with proof that appellant was the owner of the note and that it was wholly unpaid except as to the amounts shown by the credits endorsed, was admitted in evidence. If we assume that it is our duty to consider the further evidence admitted by the trial court, which we do under the authorities above cited,- that evidence tends to prove the following facts: That Frank Frorer, appellees’ testate, for many years prior to his death, was the president and a director of appellant, and that he was also a member of a manufacturing firm, doing business in the city of Lincoln, Illinois, under the firm name and style of Charles A. Fisher & Co.; that some time prior to September 2, 1907, the firm of Charles A. Fisher. & Co., desiring to borrow of appellant $5000, procured a note to be executed by one George A. Johnson, an employe of Charles A. Fisher & Co., payable to himself, and this note was endorsed in blank, by whom is not disclosed in the evidence, negotiated at appellant’s bank by Charles A. Fisher and the proceeds placed to the credit of the firm of Charles A. Fisher & Co., on the books of the bank. The evidence further tends to prove that at the time of the negotiation of the note in controversy the note of Johnson was due and had to be taken up and to effect this, Fisher procured John D. Eveland, another employe, to execute the note upon which this suit is based, which after being endorsed by him was delivered to Fisher and before being presented to the bank had been endorsed by said Frorer, his endorsement following that of Eveland, on the back of the note ,• that in this condition Fisher presented the note to the bank and with it took up the Johnson note; that the firm of Charles H. Fisher & Co. kept an account with appellant bank and that the credits endorsed upon the note came about by the cashier of the bank, every six months, placing a credit on the note to the amount of the accrued interest and charging that amount on the books of the bank against the firm of Charles A. Fisher & Co.; that sometime after the note became due —how long the evidence does not disclose—a letter was mailed to Eveland notifying him that the note was due, and at some uncertain date after the note was due, the cashier of the bank verbally notified Frorer that his note was due; that the note was produced at a meeting of the board of directors of the bank over which Frorer was presiding as president, and that Frorer then stated to one of the directors that he was a member of the firm of Charles A. Fisher & Co.

Counsel for appellant do not now contend that Frorer was a guarantor of the note, but that under section 82 of the Negotiable Instruments Act, he was an endorser of that note and thereby his estate has become liable for its payment, and that under the evidence in this case no presentment, nor notice of dishonor were necessary. They further contend that appellant is not limited in its right to recover to the particular grounds stated in its claim as filed, notwithstanding the fact that its statement was not in any respect amended at any time after it was filed, nor any application made to the court for leave to do so.

The contention that appellant is not limited in its right to recover to the particular grounds stated in its claim, is sustained by the case of Thompson v. Black, 200 Ill. 465, and the cases therein cited.

In support of their contention that no presentment nor notice of dishonor were necessary to fix liability of the estate for the amount due on the note, on the ground that Frorer was an endorser, they cite sections 82, 88, 98 and 132 of the Negotiable Instrument Act, and quote the parts relied upon as follows:

From sec. 82: “Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as an endorser in accordance with the following rules. ’ ’
“ (2) If the instrument is a note or unaccepted bill payable to bearer, he is liable to all parties subsequent to the maker or drawer.”
From sec. 88: “But except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer or endorsers.”
From sec. 98: “Presentment for payment is not required to charge an endorser where the instrument was made and accepted for his accommodation.”
From sec. 132: “Notice of dishonor is not r quired to be given to an endorser in the following case:
(3) ‘Where the instrument was made or accepted for his accommodation.’ ”

Whatever may be true with respect to what is proper or permissible as to form and detail of procedure in this class of cases, it is true in this case so far as we are able to discern, that any right of recovery by appellant must be based upon the note as commercial paper within the meaning of the Negotiable Instrument Act and the transaction of its negotiation to appellant must be held to be a commercial transaction, and the liability of the respective parties must be determined by the precisions of that Act applicable to such paper and transactions. When Mr. Fisher, acting on behalf of Charles H. Fisher & Company, negotiated the note in question with the cashier of appellant’s bank, acting on behalf of appellant, they dealt at arm’s length; there is no evidence of fraud anywhere in this transaction.

Section 88 of the Act provides that presentment for payment is necessary in order to charge the endorser, except in the cases therein specified. Section 89 provides that when the instrument is not payable on demand, presentment must be made on the day it falls due. Section 106 provides that “notice of dishonor must be given to * * * each endorser, and any * * * endorser to whom such notice is not given is discharged.” Section 120 "provides that where the parties reside at the same place, notice of dishonor must be given on the day following the maturity of the note.

There is not in this record any evidence tending to prove either presentment or notice as the statute requires. Counsel for appellant, however, rely upon section 98, and clause 3 of section 132. These sections provide that presentment and notice are not necessary in order to charge an endorser “where the instrument was made and accepted for his accommodation. ’ ’

The evidence proves that the note in question was made and accepted for the accommodation of the manufacturing firm of Charles H. Fisher & Company, and that Frank Frorer, the endorser, was a member of that firm. There is no evidence nor claim that the note was made or accepted for the accommodation of Frorer, individually". Counsel for appellant insist that inasmuch as he was a member of the firm for whose accommodation the note was made and accepted he was within the purview of section 98 and clause 3 of section 132, and counsel for appellees insist that he was not.

So far as we are advised this exact question has not been decided by either the Appellate or Supreme Courts of this State, nor have we "found much discussion of the question elsewhere. Such an endorser does not appear to be within the letter of the statute. The language is, “where the instrument was made and accepted for his accommodation. ’ ’ A co-partnership firm composed of two or more persons has a legal status in many respects quite distinct from that of the separate individuals who compose it, being somewhat in the nature of that of a business corporation with respect to the individuals who compose such corporation.

The texts and cases cited by counsel for appellant lay down and hold the general rule only that “where the instrument was made and accepted for the accommodation of the endorser, demand and notice are not necessary to fix his liability.” None of them throw any light upon the particular feature upon which the question here under consideration turns.

Counsel for appellees cite the following authorities which furnish some support to their contention that such an endorser is not within the meaning of the provisions of the statute relied upon by appellant, viz.: Morris v. Husson, 4 Sandf. (N. Y.) 93; Moore v. Brungard, 5 How. (Miss.) 557; Field & Co. v. New Orleans Delta Newspaper Co., 21 La. An. 24; Parsons on Bills and Notes, p. 525; Chitty on Bills, p. 438.

Finding no reversible error in this record, the judgment of the circuit court is affirmed.

Affirmed.

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


text:
    George Sutton, Appellee, v. Otto Workmeister et al., Appellants.
    1. Labor—right of employer and employe to contract. While it is true that a laborer or body of laboring men are permitted, and have the right,. to contract for their own services in such manner as they may see fit, it is also the right of an employer to employ laborers upon such terms as they may deem just and proper, so long as no law is violated by such contract.

      2. Labor—contracts between employer and employe must not encroach upon rights of third persons. Where parties contract with reference to their labor or their property, they must not do so to the damage or injury of other parties, and it is also the law that so long as the contract made does not violate any law, then the motive or object for which the contract has been entered into cannot be inquired into.
    3. Labor—when acts of unions illegal. While organizations or unions for the protection and betterment of labor have been fully recognized as lawful, parties have no right, under the guise of benefiting or protecting labor interests, to do any unlawful act or violate any provisions of the law. Neither have organizations formed for the benefit of labor the fight by. violence, duress, or threat, to injure any person either in his rights or his property.
    4. Labor—when acts of unions illegal. While labor organizations and labor unions are recognized as legitimate organizations and are proper for the protection and advancement of labor interests, and while such organizations are commendable and desirable, the persons who compose them or who are interested in the organizations have no rights, under the guise of protecting labor, to interfere with the rights of other persons to labor or with the rights of other persons to employ labor and use their capital in the employment of such labor as may be agreeable to employer and employe, and any attempt by these organizations, by the use of threats or coercion, to deprive any employer of the services of any laborer who is willing to work at the wages offered, or to deprive an employe of his employment, is no less a violation of the law than any other unlawful act, and cannot be sanctioned, permitted or tolerated any more than any other violations of'law.
    5. Torts—when effecting discharge confers cause of action. If a labor union under threats of strike force an employer to discharge an employe, its individual members (the union not being incorporated) are liable for the resulting damage.
    6. Evidence—when proof beyond reasonable doubt not required. Even though the declaration charge a criminal act proof beyond a reasonable doubt is not required if such declaration sets up facts which constitute unlawful confederation at common law.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 20, 1911.
    Frank L. Mulholland and Barry & Morrissey, for appellants.
    DeMange, Gillespie & DeMange, for appellee.
   Per Curiam.

This is an action brought by plaintiff against about one hundred and sixty employes of the Chicago and Alton Railroad Company shops at Bloomington, Illinois, who where members of local lodge Number 342 International Association of Machinists. These defendants became dissatisfied with the wages they were receiving and the shop conditions existing and made demand upon the railroad company for increase of wages, shorter hours and an improvement in shop conditions; a committee was selected by the members of this order to wait on the company and make demands for them for concessions in these matters. After several conferences, an ultimatum was given to the railroad company and the company notified if the proposition made by defendants was not accepted a strike would be the result. This occurred at a season of the year and under conditions when it was necessary that the railroad company should keep all its trains moving, and to do this it was necessary that the machinists should remain at work. The conditions were such that it was necessary to avoid a strike if it could be averted. The company finally made a counter-proposition granting the demands of the defendants except as to the increase of wages. The defendants did not accept the counter-proposition so made by the railroad company, but replied that inasmuch as the company would not grant the full demand of the increase of wages, they would add a demand for a “closed shop” if they were required to accept the schedule of wages offered by the railroad company. This was finally agreed to by the railroad company and a contract was executed in accordance with the agreement which was finally made. In this contract, the defendants contended for, and it was agreed by the railroad company that, all employes of the railroad company who were not then members of the defendants’ local lodge Number 342, should be given thirty days in which to join the order or quit the shops where tlie defendants were working’ at Bloomington, Illinois. Plaintiff was not a member of this local lodge Number 342 but belonged to an order known as the Amalgamated Association of Engineers. The association to which he belonged did not permit its members to join or belong to any other organization of like character. Plaintiff had been a member of his order for thirty-two years and by reason of his long membership was entitled when overtaken by old age to certain rights and compensation from this order, all of which he would forfeit by joining the local lodge of which the defendants were members. The Chicago and Alton Railroad Company did not desire to discharge plaintiff and offered him work at other points on the line, but plaintiff was a man of family, had resided in Bloomington nearly twenty-two years and did not desire to go elsewhere. At the end of thirty days, defendants insisted that their contract made with the Chicago and Alton Railroad Company be lived up to and carried out by the railroad company, and in order to avert further trouble with defendants, plaintiff was discharged by the Chicago and Alton Railroad Company, in compliance with the terms of the contract with the defendants. Local Lodge 342 to which defendants belonged is not incorporated. Plaintiff brought this action against the defendants as members of that lodge to recover damages, alleging unlawful procurement of his discharge from the Chicago and Alton Railroad Company. Trial below resulted in a verdict for plaintiff for $1500 on which a judgment was rendered, and this appeal is prosecuted.

Defendants insist on a reversal of the judgment on the ground that the court erred in entering a judgment against them, in overruling their motion for a peremptory instruction, that the court admitted improper evidence over their objections and excluded evidence offered by them, and also that the court erred in the giving and refusing of instructions, and that the verdict is contrary to the law and the evidence.

"While it is true that a laborer or body of laboring men are permitted, and have the right, to contract for their own services in snch manner as , hey may see fit, it is also the right of an employer to employ laborers upon such terms as they may deem just and proper, so long as no law is violated by such contract.

It is a familiar principle of law that where parties contract with reference to their labor or their property, they must not do so to the damage or injury of other parties, and it is also the law that so long as the contract made does not violate any law then the motive or object for which the contract has been entered into cannot be inquired into.

While organizations or unions for the protection and betterment of labor have been fully recognized as lawful, parties have no right, under the guise of benefiting or protecting labor interests, to do any unlawful act or violate any provision of the law. Neither have organizations formed for the benefit of labor the right, by violence, duress, or threat, to injure any person either in his rights or his property.

While labor organizations and labor unions are recognized as legitimate organizations and are proper for the proper protection and advancement of labor interests, and while such organizations are commendable and desirable, the persons who compose them or who are interested in the organizations have no rights, under the guise of protecting labor, to interfere with the rights of other persons to labor or with the rights of other persons to employ labor and use their capital in the employment of such labor as may be agreeable to employer and employee, and any attempt by these organizations, by the use of threats or coercion, to deprive any employer of the services of any laborer who is willing to work at the wages offered, or to deprive an employee of his employment, is no less a violation of the law than any other unlawful act, and cannot be sanctioned, permitted or tolerated any more than any other violations of law.

The gist of the action at bar is that the defendants who are formed together as an association, not incorporated, ostensibly for the purpose of the benefit of its members,.unlawfully and illegally confederated together and under threats ■ of enforcing a strike of the employes of the Chicago and Alton Railroad Company, compelled that railroad company, in order to avoid a strike, to enter into a contract which, by its terms and conditions, required that the Chicago and Alton Railroad should discharge from its employment the plaintiff unless he should join the local lodge Number 342 of the organization known as the International Association of Machinists. Such action has been held by the Supreme Court to be unlawful and in violation of the legal rights of employer and employe. O’Brien v. the People, 216 Ill. 354.

That a right of action exists where one whose discharge has been procured by a third party where otherwise employment would have continued indefinitely is fully recognized. London Guarantee Company v. Horn, 206 Ill. 493.

It is insisted by defendants that the “closed shop” was voluntarily Included in the contract by the railroad company without any threat or without any undue influence and even without demand by the defendants herein, but an examination of this record cannot fail to convince any reasonable mind that the defendants herein formulated a demand and presented it to the Chicago and Alton Railroad Company, in which they demanded an increase of wages, shorter hours and certain betterment in their shop conditions, and their ultimatum to the railroad company was that unless these were complied with the result would be a strike, to enforce their demands. After numerous consultations and attempts to agree upon some neutral ■ line by the defendants and the Chicago and Alton Railroad Company, it was finally determined by the railroad company‘that the full demand for increase of wages conld not be granted by the company and a wage schedule was prepared by the company and presented to the defendants, and nine hours’ working time, and an agreement to grant the shop improvements demanded. This proposition was submitted by the Chicago and Alton Railroad Company to the defendants, while the threat and determination of the defendants to strike unless the demands made by them were acceded to, existed. Without changing their demands or without in any manner modifying the conditions upon which they demanded the changes, they replied to the proposition of the railroad company that in consideration of the failure of the railroad company to grant the full increase of wages demanded, that the defendants would insert in- their original proposition the demand for a “closed shop.” This additional requirement, with the same threats of a strike- that existed under the original proposition, was the ultimatum submitted, and the jury evidently determined, and were justified in so doing, that the “closed shop” was placed in the contract upon the demand of the defendants, coupled with the threat that a strike would result if it was not granted them.

The first count of the plaintiff’s declaration is based upon an unlawful confederation of the defendants, through and by virtue of which plaintiff was unlawfully and illegally deprived of his employment with the Chicago and Alton Railroad Company, and the competent evidence in this record established the fact that he lost his position by reason of the contract forced upon the railroad company by the defendants, that Maher, the representative of the railroad company, did not desire to enter into the contract as made and did not desire to discharge the plaintiff, but that he was compelled so to do by duress, under threats of a strike of the defendants in the railroad company’s shops unless their demands were acceded to, and in his endeavor to avoid a strike and avoid seriously crippling the operations of the railroad company, he granted these demands. While the contention of the defendants that certain admissions and declarations made by Maher were improperly admitted in evidence is correct, the facts to which these admissions and declarations related were testified to by Maher and this testimony is not contradicted in this record, and by reason of this testimony his admissions and declarations admitted caused no harm to the defendants. The contention, also, that a certain letter which plaintiff received from the foreman of the Illinois Central shops at Clinton was improperly admitted must be conceded, but the admission of this letter could not possibly have affected any other question than the damages, and from the amount of the verdict in this case it cannot be said that the damages were in any manner enhanced or increased by reason of that letter. The damages are not excessive and the admission of this letter in evidence resulted in no harm to the defendants.

The records of the organization, Lodge Number 342 of the International Association of Machinists, were properly admitted for the purpose of establishing the confederacy claimed to have been entered into by these defendants, and the confederation having been fully and clearly established, the individual statements of the members of this order engaged in the forming of the confederation were proper to be considered by the jury in connection with all other evidence in the case. There was no error in admitting either the lodge records or the statements of the defendants herein regarding such confederation.

It is insisted by the defendants that it was incumbent upon the plaintiff herein to prove his case beyond a reasonable doubt and that the instructions of the court given to the jury should have required the plaintiff so to do. The first count of the plaintiff’s declaration does not allege a criminal act but avers acts whicb constitute an unlawful confederation at common law, and under this count of the de. laration it was not necessary that the plaintiff should prove his cause of action beyond a reasonable doubt.

Complaint is also made of the giving, refusing and modifying of instructions by the trial court, but on careful examination of the instructions complained of, we find that taken as a series they are substantially correct and properly gave to the jury the Jaw which governs and controls this action.

There being no reversible error in this record, the judgment is affirmed.

Affirmed.


author: Per Curiam:

text:
    Mary Angeline Mathias et al., Defendants in Error, v. Joseph A. Miller, Plaintiff in Error.
    1. Evidence—-when declarations of grantor incompetent. Declarations of a grantor in a mortgage made after its execution unless part of the res gestae are incompetent as against one claiming under such mortgage.
    2. Judgments—when not subject to collateral attack. A judgment, the satisfaction of which constituted a part of the consideration of a mortgage, is not subject to attack in a proceeding which seeks the cancellation of such mortgage.
    3. Masters in chancery—effect given to findings of fact. While findings of fact by the master are merely advisory to the chancellor they are entitled to due weight in consequence of the superior opportunities afforded the master to determine the credibility of the witnesses by having seen them and having observed their demeanor while testifying.
    4. Fraud—how must be established. Fraud is not presumed but must be proven.
    5. Fraud—effect of acknowledgment as affecting fraud in execution. An acknowledgment to an instrument attacked as having been obtained by fraud is not to be lightly regarded.

      Bill in equity. Error to the Circuit Court of Moultrie county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded with directions.
    Opinion filed October 20, 1911.
    E. C. Craig and W. K. Whitfield, for plaintiff in error.
    E. M. Peajdro and Miles A. Mattox, for defendants in error.
   Per Curiam:

On August 14, 1907, one Casander E. Berry filed her hill in equity in the circuit court of Moultrie county, wherein she alleged that she was eighty years of age and was unable, by reason of her lack of education, to read or write; that owing to her lack of education and business qualifications she was compelled to rely and had for many years relied implicitly upon the statements made to her by those with whom she did business; that for a number of years she had been the sole owner of a certain described forty acre tract of land in Moultrie county, and that she was possessed of but little, if any, other property or means of support; that she was and had been for many years well acquainted with the defendant, Joseph A. Miller, who had resided all his life in the immediate vicinity of her farm; that not withstanding she was not and never had been indebted to said defendant in any sum of money whatever, he, on May 9, 1907, in company with one C. Enterline, a justice of the peace, came to her residence, and then and there had with him certain papers purporting to be a mortgage and note, which.papers were presented to her by him with the request that she sign the same, he then and there stating to her that her son, Evan Berry, had said the papers were all right; that she then and there without knowledge of the contents of said papers and without having the same read over to her by the defendant or by any other person, affixed her mark thereto; that immediately thereafter the defendant left her residence taking said papers with hir:i; that she after-wards learned, and so states the fact to be, that one .of said papers was filed for record in the recorder’s office of Monltrie county, which record discloses that said two papers were a mortgage upon the said forty acre tract of land and a note for $3500, executed by her to said defendant; that the said note and the mortgage purporting to secure the same are and were without any consideration whatever; that she relied implicitly upon the statements made to her by the defendant, which statements were false and untrue and known by him to be such, and were used by him for the purpose of obtaining- her signature to said papers; that at the time of signing the said note and mortgage, she, owing to her lack of education, her extreme old age, want of business ability and lack of judgment, was unfit and unable to transact business, as defendant then well knew; that the said tract of land is her homestead and is worth but very little over and above the amount of said note and mortgage; that the defendant still has possession of said note and mortgage and ought in equity and good conscience to be required to surrender the same for cancellation. The bill prays for the surrender by the defendant of said note and mortgage and for the satisfaction and cancellation of the record of said mortgage, and for general relief. The defendant answered the bill denying all of its material allegations, and complainant filed her general replication to such answer. On March 4, 1908, the death of the complainant Casander E. Berry was suggested and the bill was amended by substituting Angeline Mathias and Sarah Jane Webb as complainants, and further alleging that said Casander E. Berry died testate January 27, 1908, and that by her last will and testament which was duly admitted to probate February 28,1908, said testatrix devised the forty acre tract of land described in tbe bill and mortgage, to said Angeline Mathias and Sarah Jane Webb. The answer of the defendant to the. original bill was permitted to stand as his answer to the 'amended bill, and the cause was referred to the master to take the proofs and report the same together with his conclusions of law and fact.

The facts were found by the master to be substantially as follows: That on November 1, 1895, Casander E. Berry executed two certain mortgages upon the premises in question, one to secure the payment of a note for $500, executed by herself and her son William E. Berry, payable to Maria Johnson in five years after date, and one to secure ten notes for $2.50 each, as commission notes, payable every six months; that on November 5, 1900, upon the maturity of said notes and for the purpose of liquidating the same the said Casander E. and William E. Berry borrowed of Salathiel Miller $675, and to secure the payment of a note for that amount, due five years after date, they executed their mortgage on the same premises, and thereupon the two prior mortgages were released; that thereafter in 1905, the said Casander E. and William E. Berry having become further indebted to said Miller, for which indebtedness the said Miller held their judgment note, upon which note judgment was entered aginst them by confession, they executed to said Miller in satisfaction of such judgment and in liquidation of their note for $675, their note for $1025 bearing date December 7, 1905, payable five years after date, and to secure the payment of said note they executed a mortgage on the same premises, and that thereupon the said judgment and the prior mortgage for $675 were satisfied and released; that thereafter said William E. Berry executed his several promissory notes, each of which was signed by the said Miller as surety, as follows: One on'December 19, 1905, for $315 to one Pnrvis; one on March 10, 1906, to one Birch for $335; one on April 28,1906, to one McDonald for $100; one on November 20, 1906, to the First National Bank of Sullivan for $319.21. The master further found that on March 14, 1906, the said William E. Berry executed and delivered to said Miller a chattel mortgage on certain personal property to secure the said Miller for his having become surety on the note for $335, payable to one Birch, which said mortgaged property was afterwards sold by said Miller and the proceeds of said sale amounting to $277 were credited on said note; that thereafter one Samuel T. Miller purchased each of said notes and caused judgment to be entered thereon against William E. Berry by confession for $922.93 and $4.50 costs; that on February 5, 1906, the said William E. Berry became indebted to one McDonald in the sum of $800, which indebtedness was evidenced by a promissory note executed by William E. and Casander E. Berry and Salathiel Miller and which note was thereafter purchased by said Samuel T. Miller, who obtained judgment by confession thereon against said William E. and Casander E. Berry for $875.34 and $4.50.costs; that to secure the said Salathiel Miller for having become surety on the said note for $800 payable to one McDonald, the said William E. Berry executed and delivered to said Miller a chattel mortgage on certain personal property; that said mortgage was thereafter foreclosed by a sale of the property, which sale realized $537.50 and which amount should have been applied as a credit upon said note for $800; that in 1906 the said William E. Berry sold a quantity of broom corn to one Duncan for $1401.48, out of which amount Duncan deducted $200 due himself upon a note signed1 by said Berry, and of the balance remaining paid $377.50 to Salathiel Miller and $823.98 to said Berry, and that said settlement did not enter into the accounting or settlement between Joseph A. Miller and Casander E. Berry involved in the note and mortgage for $3500 in question in this proceeding. The master further found that on May 9, 1907, Casander E. and William E. Berry were indebted to Salathiel Miller, who had previously departed this life, in several amounts represented by certain notes, mortgages and judgments, and that Joseph A. Miller, a son' of the said Salathiel Miller, then had a settlement with the said Casander E. and William E. Berry whereby the said Casander E. Berry gave to the said Joseph A. Miller her note for the sum of $3,500 payable five years after date with interest at 5 per cent per annum from date, payable at the end of five years from date, and also then gave to said Joseph A. Miller a mortgage upon the real estate described in said bill to secure said note; that the consideration for said note and mortgage was as follows: A check for $362 given by said Miller to one Chase in payment for a bill for lumber purchased by William E. Berry; a check for $300 given by said Miller to said William E. Berry; the release of the mortgage for $1,025 given by Casander E. Berry to Salathiel Miller; the satisfaction of the judgment against William E. Berry for $927.43, and the satisfaction of the judgment against Casander E. and William E. Berry , for $880.84. The master further found that at the time the said settlement was had and. the said note and mortgage for $3,500 was given by Casander E. Berry to Joseph A. Miller the said Joseph A. Miller was the owner of the said note and mortgage for $1,025 and of the said judgments against Casander.E. and William E. Berry; that the said judgment for $880.34 should be credited with the sum of $537.50, which amount was realized by Salathiel Miller from the sale under foreclosure of the chattel mortgage which was given by said William E. Berry to secure said Salathiel Miller for having become surety on the note for $800 to one McDonald. The master further found that the complainants were not entitled to the relief prayed in their hill and were not entitled to have the said note and mortgage for $3500 set aside and declared null and void; that no fraud or deceit was practiced by any one or any advantage taken of Oasander E. Berry in procuring her to execute the note and mortgage for the $3500 in question; that except as to said sum of $537.50 before mentioned, the said mortgage for $3500 should stand as a valid lien against the real estate described therein.

To this report of the master the complainants filed their objections which objections were overruled, and thereupon the cause was heard by the chancellor upon such objections standing as exceptions to said report, and a decree entered sustaining such exceptions and granting the relief prayed in the bill except as to the sum of $1025 which amount together with interest thereon at 5 per cent from May 9, 1907, the complainants were required to pay to the defendant or to the clerk of the court for him, within 60 days from the filing of said decree, and which payment when so made was ordered should constitute a full and complete satisfaction of said note and mortgage for $3500. Upon the refusal of the defendant to accept such payment the complainants paid to the clerk of the court within the time limited $1181.20 in full satisfaction of said decree. The defendant prosecutes this writ of error to reverse said decree.

The facts as found by the chancellor and upon which findings the relief granted was necessarily predicated are specifically recited in the decree substantially as follows: That at the time of the execution of the mortgage in question, Casander E. Berry was an aged woman incompetent and unable to understand business matters or to read and write, and had to rely upon the fairness and honesty of the persons with whom she did business; that the said mortgage was signed at her home and was acknowledged before O. Enterline, a justice of the peace; that at the time she executed said mortgage she had no knowledge of the contents thereof; that the same was not read over to her and she was incorrectly informed as to the contents of the papers she was then executing; that the1 entire transaction relating to said note and mortgage was a premeditated scheme designed to obtain from Casander E. Berry without her knowledge a lien upon her property for the debts of her son "William E. Berry; that it was not pretended that said Casander E. Berry ever heard of said mortgage or ever agreed to execute it prior to the time her name was affixed thereto.

As defendants in error were suing in the capacity of devisees under the will of Casander E. Berry of the land described in the mortgage in question, it is conceded that plaintiff in error was incompetent to testify to any conversations or transactions had with the said Casander E. Berry in her lifetime, and as the witness Samuel T. Miller according to his own testimony was directly interested in the event of the suit as one of the heirs at law of Salathiel Miller, deceased, he was also incompetent to testify to the like conversations and transactions. The declarations of. Casander E. Berry, not a part of the res gestae, made subsequent to the execution by her of the mortgage in question, were inadmissible as against plaintiff in error. Brower v. Callender, 105 Ill. 88; Williams v. Evans, 154 Ill. 98; Lang v. Metzger, 206 Ill. 475.

The uncontradicted competent evidence in the record sustains in the main the findings of fact recited in the master’s report, heretofore set forth, in so far as such findings relate to the character and amount of the several transactions wherein Casander E. Berry, "William E. Berry, Salathiel Miller and Samuel T. Miller were involved. Such evidence further discloses that in the afternoon of May 9, 1907, plaintiff in error and C. Enterline, a justice of the peace, following a conversation with. William E. Berry, who was then in the city of Sullivan, left Sullivan with a horse and buggy and drove to the residence of Casander E. Berry, a short distance in the country, for the purpose of securing her signature to the note and mortgage in question, and taking her acknowledgment to said mortgage; that the note and mortgage were fully written up before the parties left Sullivan; that upon their arrival at the residence of Mrs. Berry they found her at home with her yonng grandchild; that Mrs. Berry was then about 80 years of age, feeble in appearance and unable to read or write; that plaintiff in error and Enterline informed Mrs. Berry that they had come for the purpose of securing her signature to the note and mortgage, whereupon she informed them that she could not read or write; that Enterline then read the note and mortgage in the presence and hearing of Mrs. Berry, and plaintiff in error left the house for the purpose of procuring two witnesses to her signature by mark; that plaintiff in error informed Jesse Sullivan and Sibba Ann Sullivan, his wife, near neighbors of Mrs. Berry, that he desired them to go to her house and witness her signature to a mortgage or note and mortgage; that Mrs. Sullivan responded immediately to the request of plaintiff in error and shortly thereafter Mr. Sullivan accompanied by plaintiff in error arrived at the house of Mrs. Berry; that about the same time there came to the house of Mrs. Berry her grandson, Sheridan Mathias, and his wife; that while all the parties named were in the same room in the house of Mrs. Berry the note and mortgage in question were upon a table or dresser in the room; that in the presence of all the parties there present Enterline, the justice of the peace, wrote the name of Mrs. Berry on the note and mortgage and Mrs. Berry affixed her mark thereto and Mr. and Mrs. Sullivan signed the same as witnesses.

Jesse Sullivan testified that Mrs. Berry came over to the table upon which the papers were placed; that neither the note nor mortgage was read during the time he was there and no statement was made there in his presence as to what the papers were; that he looked at the papers but did not examine them to note their contents; that he did not notice the amount of the note although it was laid out before him so that he had an' opportunity to see it if he had wanted to; that he looked at the top of the mortgage and saw it was a mortgage; that he saw nothing there to indicate that there was any inclination to conceal anything from him; that plaintiff in error and Enterline, remained at the house twenty or thirty minutes after the note and mortgage was signed, but no further reference was made to the transaction. Sullivan further testified that when plaintiff in error requested him to go to the house of Mrs. Berry he said he wanted him (Sullivan) to witness a $500 mortgage. This statement was contradicted by plaintiff in error.

Sibba Ann Sullivan testified to substantially the same state of facts, and further that Mrs. Berry told her immediately after the witness arrived at her house that she was going to get some money from plaintiff in error without interest to enable her son to buy another team. Sheridan Mathias testified to substantially the same facts as did the witnesses Jesse and Sibba Ann Sullivan.

No witness testified that Casander E. Berry was incapable of understanding and transacting ordinary business, and the only evidence bearing upon that issue arises out of the facts and circumstances heretofore detailed. The record discloses that shortly prior to the transactions in question executions had been issued upon the judgments against Casander E. and William E. Berry and it is doubtless true that William E. Berry had persuaded and influenced his mother to satisfy the insistent demands of their creditors for a settlement by giving the note and mortgage in question.

Defendants in error have sought in this proceeding to attack the judgments against Casander E. and William E. Berry, the satisfaction of which constituted a consideration, in part, for the note and mortgage in question, but it is clear that such judgments are not subject to be attacked collaterally. Aside from the release of the mortgage for $1,025 and the satisfaction of the judgments heretofore mentioned, plaintiff in error at the request of Casander E. Berry gave her son $300 with which to purchase a team of horses, and paid to W. A. Chase $362 for lumber and material purchased by William E. Berry to be used in the construction of a broom-corn shed upon the premises covered by the mortgage in question as in consideration for the note and mortgage here involved. We are clearly of the opinion that the consideration stated was sufficient to support the transaction.

All of the evidence in this case was taken before the master, and while the findings of facts by the master are merely advisory to the chancellor they are entitled to due weight in consequence of the superior opportunities afforded the master to determine the credibility of the witnesses by having seen them and having observed their demeanor while testifying. Keuper v. Mette, 239 Ill. 586; Kelly v. Fahrney, 242 Ill. 241. While the master in his report suggested to the court that there was considerable incompetent testimony in the case on account of the death of Casander E. Berry and Salathiel Miller, and that such incompetent testimony had been considered by him in arriving at his findings and conclusions, the incompetent testimony so considered by the master was offered by both parties to the proceeding and was of such character that it could not have inured to the special advantage of either party. In considering the objections to the master’s report upon the issues of fact involved, the chancellor had no better opportunity than is afforded us to arrive at a correct conclusion upon the evidence as reported by the master. State Bank v. Barnett, 250 Ill. 312.

It is elementary that fraud will not be presumed but must be proved as alleged. The publicity which attended the execution of the note and mortgage by Casander E. Berry as disclosed by the evidence is wholly inconsistent with the theory of defendants in error that she was fraudulently induced by plaintiff in error and Enterline, the justice of the peace, to execute said note and mortgage, and there is no substantive proof in the record in support of such theory. The testimony of Enterline, which is unimpeached shows that the note and mortgage were fully explained to Mrs. Berry and that he took her acknowledgment of the mortgage in the customary manner in the presence of her grandson and his wife and two of her nearest neighbors. The certificate of acknowledgment of the mortgage is not to be lightly regarded. In Kosturska v. Bartkiewicz, 241 Ill. 604, it was held that while as between the parties to a deed the certificate of acknowledgment might be impeached for fraud, collusion or imposition it could not be otherwise attacked; and that the evidence upon such issue of fraud, collusion or imposition must by its completeness and reliable character fully and clearly satisfy the court that the certificate is untrue and fraudulent. We are impelled to the conclusion that the chancellor improperly sustained the exceptions of defendants in error to the master’s report, and that the decree must be reversed and the cause remanded with directions to the court below to enter a decree allowing a credit of $537.50 upon the note in question as of the day it bears date and confirming said note and mortgage for the sum of $2962.50 and declaring said mortgage to be a valid lien on the premises therein described for that amount.

There is somewhat of confusion in the evidence relating to the propriety of requiring the credit of $537.50 to be made upon the note and mortgage in question, hut as plaintiff in error does' not seriously urge his exception to the master’s report in that particular we are disposed to conclude that the finding of the master upon that issue should not be disturbed.

Reversed and remanded with directions.

Mr. Justice Philbrick took no part.