text:
    Martin S. Robison and J. H. Robison v. Alexander Hardy and W. H. Metzger.

      Trover — Bight to Immediate Possession — Evidence—Admissibility of Subsequent Oral Agreement to Modify Written Contract.

    1. It is essential to the right of recovery in trover that the plaintiff had a right to the immediate possession of the goods at the time of the conversion.
    2. After an agreement has .been reduced to writing, in a case within the general rules of the common law, at any time before its breach, the parties may, by an oral agreement, waive, dissolve, annul or modify it; and evidence of such oral agreement is admissible in an action upon the original contract.
    3. In an action of trover against the defendants to recover damages for the alleged wrongful conversion of a large quantity of flaxseed, delivered to them for storage, upon which they had made certain advances, it is held: That the instructions given by the court were substantially defective, erroneous and misleading; and that evidence of a subsequent oral agreement, modifying the original contract, and evidence tending to prove that the defendants used the property in question with the knowledge and consent of the plaintiffs, were improperly excluded.
    [Opinion filed May 18, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. C. B. Smith, Judge, presiding.
    Statement by McAllister, P. J. This was an action of trover, brought May 16, 1884, in the court below by appellees, Hardy & Metzger, against appellants, Martin S.-& J. H. Robison,, to recover for the wrongful conversion by the defendants of 40,000 bushels of flaxseed. Plea, the general issue, trial by jury and verdict and judgment against the defendants for $6,121.05 damages, and they appeal to this court.
    The evidence on behalf of plaintiffs tended to show that in July or August, 1883, the plaintiffs being residents of Logansport, Indiana, employed the brokers hereinafter mentioned, who were commission merchants doing business upon the Chicago Board of Trade, to buy on plaintiffs’ account, divers quantities of flaxseed to be delivered to said brokers respectively, at the City of Chicago at any time during the year 1883; that in pursuance of said employment, A. M. Henderson, as such broker, bought, according to the usages of said Board of Trade, 15,000 bushels of such flaxseed at the price of $1.24 per bushel; that J. W. Stanley, as such broker, bought 10,000 bushels of such seed at $1.25 per bushel; and that R. S. Wallace & Co., as such brokers, bought 15,000 bushels of such flaxseed at $1.25 per bushel; that each of'said brokers paid for the flaxseed so bought by him and took in the usual way warehouse receipts for the same, which they respectively held subject to the payment by the plaintiffs of the purchase price, commissions and expense of storage of seed. The evidence shows that defendants were then and afterward carrying on the business of seed merchants under the firm name of M. S. Robison & Co., in the City of Chicago, and were operating a warehouse principally for the storage of flaxseed; and that they had negotiations with the plaintiffs some time in November, 1883, about storing seed for them, which the plaintiffs claimed culminated in a written contract, which they gave in evidence and is as follows:
    “ Office 105 Fifth Avenue, “Flaxseed Elevator,
    “ M. S. Robison & Co. “Foot West Washington St.
    “ Chicago, Hov. 30, 1883.
    “We will store for Messrs. Hardy & Metzger, and carry until the opening of navigation, and deliver free on board vessel, five to twenty thousand bushels of flaxseed, inclusive, at seven cents per bushel; or twenty to forty thousand bushels at six and one half cents per bushel. It is understood that we are to take the receipts from parties, as delivered to us, at prices at which they have bought it from parties, at nothing over one dollar and thirty cents, pay for the same, carry it and deliver it free on board vessel for seven or six and one half cents, as aforesaid, according to amount carried. This to include expense of storage, interest, insurance and all other expenses, the amounts to be paid back to us when the vessel is cleared for sailing.

      “ M. S. Robison & Co.
    “Hardy & Metzgeb. '
    “E.”
    The plaintiffs gave evidence tending to show that immediately upon the completion of said contract they made arrangements with their respective brokers aforesaid to turn over to the defendants the said warehouse receipts for flaxseed, to be kept and carried by the defendants tinder said agreement, and that the defendants received the same from said brokers by paying to the latter, respectively, the purchase price and charges thereon:
    Plaintiffs proved the signature and! offered.in evidence the following receipts from the defendants:
    “ Office Ho. 105 Fifth Avenue,

      “ Flaxseed Elevator, foot West Washington St.
    “ M. S. Robison & Co., Seed Merchants.
    “ Chicago, 12-20, 1883.
    “ Messrs. Hardy & Metzgeb, Logansport, Ind.
    “ Dear Sir: — We have received for your account from A. M. Henderson, 15 M. bu. year seed at 1.24 per bu. on which we have paid them $178.95, and charged the same to your account. We have received from J. W. Stanley 10 M. bushels year seed at 1.25 on which we paid him $100 and have charged same to your account. We have received from R. S. Wallace & Co. 15 M. bushels year seed at 1.25, on which we have paid them $150 and have charged same to your account; the above seed to be carried either in store or in vessel and delivered f. o. b. vessel on opening of navigation at 6§- cents per bushel.
    “ Tours truly,
    “ M. S. Robison & Co.”
    The plaintiffs further introduced in evidence an order indorsed by them on the back of the foregoing receipt and directed to defendants as follows :

      “M. S. Robison & Co.
    “ Please deliver to Albert Dickinson, or order, free onboard vessel, as he' may direct, forty thousand bushels flaxseed, received by you for our account, as stated in the within paper, subject to the advances and charges named" therein, to wit: Fifteen thousand (15,000) bushels at §1.24 per bushel, purchase mo.ney and §178.95. Ten thousand bushels at §1.25 per bushel, purchase money and §100, and fifteen thousand (15,000) bushels at §1.25 per bushel, purchase money and §150, together with six and one-half' cents per bushel, on the whole forty thousand (40,000) bushels, said advance and charges to be paid when said seed is delivered on vessel and cleared for sailing, as per your contract dated November 30, 1883. '
    “ Hardy & Metzger.

      “ Chicago, April 18, 1884.”
    Plaintiffs gave evidence tending to show that said Dickinson, on April 22, 1884, demanded of defendants the said flax-seed, offered to pay them as directed in said order, but there was no evidence tending to show any payment or tender of price, expenses, etc., or of facts showing even ability to pay, but the evidence tended to show that defendants made no absolute refusal to deliver the seed on the said demand. There was evidence tending to show that such seed had advanced in price and that navigation had opened at the time of the demand. There was no evidence tending to show that between the making of said contract of November 30, 1883, and the 5th day of the next succeeding December, there had been any breach by the defendants of said contracts and the defendants offered to prove that on the last mentioned day an oral agreement in reference to the same subject-matter as of said contract of Nov. 30tb, was entered into between them and the defendants, to the effect that the plaintiffs should cause the said Henderson, Stanley and Wallace & Co. to turn over to the defendants their respective purchases aforesaid, of flax-seed, and that the defendants should have the right and privilege of using the same in the settlement of certain contracts of their own and should buy in the market an equal quantity in their place, and that the defendants acted under that agreement and used said seed in closing out deals of their own, and the defendants offered to prove that they used and appropriated said seed with the knowledge and consent of the plaintiffs. But the court, upon objection by plaintiffs’ counsel, excluded all the evidence so offered. To which defendants’ counsel duly excepted. There was no evidence tending to show that the plaintiffs were entitled to the possession of any of the flaxseed or warehouse receipts in question before said April 22, 1884, when navigation opened, but the evidence did show that defendants had appropriated the same, as above stated, during the fall of 1883 and that when the demand was made, April 22, 1884, they had none of the property and could not comply.
    The presiding judge refused all the instructions asked by counsel for the respective parties and of his own motion gave the jury the following : .
    “The paper dated Hov. 30, 1883, and signed by the parties to this suit, is a legal and valid contract, and both parties are bound by it. Under this contract, the seed therein described is described as the property of the plaintiff, and that fact can not be contradicted — both parties are bound by its recitals.
    “How, in order to enable the plaintiff to recover in this case he must prove : First, that the defendants had his flaxseed
    in their possession; and second, that they wrongfully sold or disposed of the seed and applied it to their own use; and these two things or propositions must be established by the plaintiffs by a preponderance of the evidence.
    “ How, if you believe from a preponderance of the evidence that the defendants did execute the paper and contract of Hovember 30,1883, and afterward received the flaxseed therein specified, in whole or in part, and that afterward the defendants sold said seed or applied it on their own contracts and did not deliver the seed to the plaintiffs when demand was made therefor at the time it should be delivered under the terms of the agreement of 30tli Hovember, 1883, if such demand was made, but that defendants refused to deliver the same, then the plaintiffs are entitled to recover, provided the proof also" shows that navigation was then opened as provided in said contract at the time the alleged demand was made.”
    To the giving of which instruction the defendants’ counsel duly excepted.
    Mr. John Burke, for appellants.
    Messrs. Bisbee, Ahrens & Decker, for appellees.
   McAllister, P. J.

The declaration of the plaintiffs in this case contains but one count. While the count is inartificially drawn and not in conformity with the usual precedents, yet the matters alleged constitute it a count in trover and for no other cause of action. Besides, the case was tried and given to the jury upon the theory that the action was trover "for the wrongful conversion by the defendants of 40,000 bushels of flaxseed of plaintiffs.

The propriety of the instructions to the jury given by the court must therefore be determined with reference to that action.

The court instructed the jury that in order to entitle the plaintiffs to recover they must prove: First, that the defendants had the flaxseed of plaintiffs in their possession; second, that defendants wrongfully sold or disposed of the seed and applied it to their own use; and these two things must be established by the plaintiffs by a preponderance of the evidence. Then the court directed the jury, that if the defendants executed the contract dated November 30, 1883, and- afterward sold the seed or applied it on their own contracts and did not deliver it to plaintiffs when demand was made therefor, at the time it should have been delivered under the terms of the agreement of November 30, 1883, but refused to deliver the same, then the plaintiffs were entitled to recover, providing the proof showed that navigation was then opened.

These instructions purport to direct the jury as to all the essentials of a right of recovery, but wholly omit to state anything respecting the necessity of a right of immediate possession in the plaintiffs at any of the times referred to or respecting any payment or tender at the time of demand or any other time, of the money which, by said agreement, plaintiffs were bound to pay defendants as a condition to their right of possession, or respecting any offer or readiness or ability to pay, or of any waiver by defendants of such performance on the part of plaintiffs.

It is clear from the .evidence that the plaintiffs had no right to the immediate possession of the seed in question at any time down to the period of the opening of navigation, in the spring of 1884; and without payment or tender of the price, expenses, etc., such right did not then accrue. Bloxan v. Sanders, 4 Barn. & Cres. 941.

It is essential to the right of recovery in trover that the plaintiff have a right to the immediate possession of the goods at the time of the conversion. Eisendrath v. Knauer, 64 Ill. 396; Caldwell v. Corwin, 9 Yerg. 199 ; Burton v. Tunnehill, 6 Blackf. 470; Redman v. Gould, 7 Blackf. 361; Lewis v. Mobley, 4 Dev. & B. 323; 1 Chit. Pl. 151; 2 Greenlf. on Ev., Sec. 636.

We are of opinion that the instructions adverted to were substantially defective, erroneous and misleading.

The next question for consideration arises upon the ruling of the court in excluding the evidence offered by the defendants to the effect that after the agreement aforesaid of November 30th, and on December 5, 1883, an oral agreement was entered into between the parties by which it was agreed, amongst other things, that the defendant should have the right and privilege of using the flaxseed receipts of seed in question, in closing out their own deals in such seed, and that they had acted upon such agreement and used the same under such license.

The court, as it appears from the record, held that because such new agreement was not in writing, to admit the evidence would be to hold that a written agreement could be altered by parol, which under the law was inadmissible. The court, for the same reason excluded a general offer by the defendants to prove that they converted said property to their own use with the knowledge and consent of the plaintiffs.

If there be any doubt about the defense of leave and license being admissible under the general issue to an action of trover, there was a stipulation with such plea that any legal defense might be shown which removes that doubt.

There is no pretense that, at the time when the alleged new oral agreement was made, there had been any breach of said agreement of November 30th. The question therefore is whether, under such circumstances, the evidence offered was competent. It is proper to observe that the transaction or contract in question was not in any respect within the provisions of the Statute of Frauds. The case therefore falls within the general rules of the common law. It is probable, that no better statement of the rule applicable to the case can be found than that of Lord Denman in Goss v. Nugent, 5 Barn. & Ad. 665, where he says: “After the agreement has been reduced to writing it is competent for the parties in cases falling within the general rules of the common law, at any time before breach of it, by a new contract, not in writing, either altogether to waive, dissolve or annul the former agreement, or in any manner to add to or to subtract from or vary or qualify the terms of it, and thus make a new contract.” Emerson v. Slater, 22 How. 28; Monroe v. Perkins, 9 Pick. 298; Wilgus v. Whitehead, 89 Pa. St. 131.

If the plaintiffs orally agreed that the defendants might use said receipts or the flaxseed in settling their own contract or deals in such seed, and the latter acted upon that agreement, it would be a manifest fraud upon them if the plaintiffs could afterward treat such act as a wrongful conversion and as a basis for damages. In Le Fevre v. Le Fevre, 4 Serg. & R. 241, parol evidence was admitted to prove an alteration of the course of an aqueduct established by deed. In passing upon the obj ection that this evidence was in direct contradiction to the deed the court said: “ The evidence was not offered for that purpose, but to show a substitution of another spot. If this had not been carried into effect the evidence would not have been admissible ; but where the situation of the parties is altered by acting upon the new agreement, the evidence is proper; for a party may be admitted to prove by parol evidence that after signing a written agreement the parties made a parol agreement, varying the former, provided their variations have been acted upon, and the original agreement can no longer be enforced without fraud on one party.”

We think the court below erred in excluding the evidence offered to prove the new agreement and also the offer to prove that the defendants used said property with the knowledge and consent of the plaintiffs; for such evidence would support the plea of leave and license. In Ratcliff v. Pemberton, 1 Esp. 35, an action of covenant was brought upon a charter party of a ship to recover the demurrage settled by the instrument, which was at per diem, and the declaration stated that the vessel was to be discharged by a certain day mentioned in the charter party, whereas, she had been detained twelve days beyond the time so limited for her clearance, whereby the plaintiff became entitled to per diem demurrage for that time.

The case relied on for the defendant was that the plaintiff, who was master and owner of the ship, had consented to enlarge the time within which'the cargo should be discharged, and had waived all claim to demurrage, and the defendant offered to prove that he could have discharged the cargo within the time limited, but that the plaintiff gave him leave to take out the cargo at his leisure, as he, plaintiff, was waiting for freight. Lord Kenyon held that the license and acquiescence of the plaintiff was a good defense and the evidence competent to support it.

For the errors pointed out the judgment below should be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Herbert E. Bucklen v. A. Reeves Jackson.

      Practice — Conflict of Evidence.

    Where there is a sharp conflict of evidence and there is no error of law, this court will not interfere with the verdict of the jury.
    [Opinion filed May 18, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Jpdge, presiding.
    Messrs. Weigley, Bulkley & Gbay, for appellant.
    Mr. B. M. Mura, for appellee
   Per Curiam.

Appellee recovered a judgment of $16 against appellant for professional services as a surgeon rendered to a laborer who fell and was injured while at work on appellant’s building. Ap pedant went to appellee’s office and requested him to come to his building and attend to the man who was injured. Appellee testified that appellant said that he would see him paid for his services and that he charged the bill to him on his books.

Appellant denies that he promised to see appellee paid or used any other words indicating an intention to be responsible in any way for the services. There was a sharp conflict of evidence and the jury was correctly instructed by the court, at appellant’s request, on every question arising in the case. Ho instructions were given in behalf of appellee. There being evidence to support the verdict and no error of law, this court, under the well established rule, will not interfere unless the verdict is manifestly against the weight of evidence. Such is not the case here and the judgment must therefore be affirmed.

Judgment affirtried.


author: Moran, J.

text:
    H. F. Vehmeyer v. George Earl and Joseph Earl.

      Sales — Quantity tobe Ascertained — Whether Title Passes.

    1. Where a sale is agreed upon, the price fixed, the possession delivered and the quantity is yet to be ascertained, whether the title passes depends upon the intention of the parties as gathered from the contract, their acts and the attending circumstances.
    ii. In the case presented, it is held: That the evidence supports the finding that the parties intended that the title to the broom corn in question should pass to the vendee, although the weight was to be ascertained by the vendors or in their presence.
    [Opinion filed May 18, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Statement by Moran, J. The judgment from which this appeal is prosecuted was rendered in the court below upon a stipulation of facts as follows: “ On the 30th day of December, 1885, the plaintiff's sold to the defendant four car loadslrof broom corn, then stored in the Continental Warehouse on Kinzie Street, in the City of Chicago, at the rate of éj- cents per pound. The plaintiffs held warehouse receipts issued by the warehouse company in the usual form of such receipts, which receipts were, on December 31, 1885, indorsed by the plaintiffs and delivered to the defendant. It was agreed that the defendant should take the broom corn away from the warehouse in which it was stored to his own place of business, and after he had so removed it it should be weighed by the plaintiffs or by some person in their presence, and upon the ascertainment of the weight the purchase price of 4f- cents per pound was to be paid therefor forthwith.
    It is further stipulated that the plaintiffs held policies of insurance which in terms provided that such insurance should cover all broom corn in said warehouse whether owned by said , plaintiffs or held by them on commission for others, or sold for them and not delivered.
    It is further stipulated that three of the car loads of broom corn so sold were taken from said warehouse, weighed and paid for in accordance with the terms of said sale, and that the fourth one never was removed by said defendant but was, on the 12th day of January, 1886, destroyed by fire; that the weight of said car load of broom corn so destroyed by fire was 12,465 pounds. After the destruction of said broom corn by fire the plaintiffs sent for the defendant, who returned said warehouse receipts to them for the purpose of ascertaining whether anything could be obtained from the insurance company on account of said loss, and stated to the insurance company the circumstances of the sale to said defendant, and the insurance company denied liability therefor, and the plaintiffs have never received anything in the way of insurance upon said car load of broom corn, and returned the warehouse receipts to the defendant.
    The face of the policies was sufficient to cover said loss if the companies were liable. In addition to the facts above stipulated it was proved by appellant that the receipt for the broom corn Was handed to him by the agent of appellee who sold him the corn, and it was said to appellant that he was to take away the corn before the exniration of the warehouse receipt for the month, and he did so take away the other three cars. The month expired on January 14, 1886. Judgment ■ for value of broom corn at agreed price.
    Mr. James Frake, for appellant.
    Messrs. Flower, Remy & Gregory, for appellees.
   Moran, J.

As between vendor and vendee the title of personal property passed upon the completion of the sale without any delivery. A sale of a specific article by weight, the price being agreed upon between the parties, may be a complete sale although the article has not been weighed, if the parties intended it should be complete. O’Keefe v. Kellogg, 15 Ill. 347; Holliday v. Burgess, 34 Ill. 193.

"Where, by the terms of the contract, anything remains to be done to complete it, such as ascertaining the quantity, the delivery of possession or the like, the title does not pass till the contract is thus completed. When the sale is agreed upon, the price fixed, the possession delivered,and the quantity yet to be ascertained, whether the title will pass, and the contract be held complete, depends upon what shall be found to have been the intention of the parties as gathered from the contract itself, the acts of the parties and the attending circumstances. Seckel v. Scott, 66 Ill. 106.

In this case the trial court has found from the evidence that" it was the intention of the parties that the title to the car load of broom corn about which the controversy has arisen should pass to appellant notwithstanding the weight thereof was to be ascertained by the appellees or in their presence. We should be authorized to reverse such finding only in case of its being manifestly against the evidence. We do not so regard it, but on the contrary, we think the finding clearly supported by the facts.

The vendor indorsed the warehouse receipts for the broom corn and delivered them to the vendee, and thus clothed him with the full indicia of ownership of the property and absolute dominion over it. The vendee had the right to let the broom corn remain in the warehouse daring the month, but might have taken it to his own place of business whenever he saw fit. That it had to be weighed to ascertain how much should be paid for it is true, but it was to be weighed only to find the sum to be paid for it. It was not to be weighed for the purpose of identifying or ascertaining the property or to separate its quantity from other like articles. That it was to be weighed by the vendors or in their presence was manifestly for their protection or satisfaction as to the weight, and'was not intended as of the nature of a condition necessary to precede the vesting of the property. The weighing was to be done after the broom corn had been taken from the warehouse by the vendee by authority of the warehouse receipts which had been delivered to him, and after he had the actual possession of the broom corn itself at his place of business.

These circumstances are strong in support of the conclusion of the Superior Court, and there being no ground for •reversal the judgment of said court must be affirmed.

Affirmed.


author: Per Gwiam.

text:
    French, Potter & Wilson v. S. Wolf.

      Practice — Error without Prejudice — Oral Instruction — Attachment.
    1. An error in practice, which is not injurious to the party complaining, is not sufficient ground for reversal.
    2. In the case presented, it is held: That the technical error of the court below in orally instructing the jury to find for the defendant, in the absence of any evidence to support the issue, instead of in writing, is not sufficient ground for reversal.
    [Opinion filed May 18, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Weigley, Búleley & Gray, for appellants.
    Both the Supreme Court and this court have had occasion to pass upon this section of the statute, and have always held that the statute was too plain to need any construction, and that whatever may be the wisdom of the provision, or the effect in any one case, it was clearly the. duty of the court to enforce the statute as it finds it. Bloomer v. Sherrill, 11 Ill. 483; Ray v. Wooters, 19 Ill. 82; Greenwich Ins. Co. v. Raab, 11 Ill. App. 636 ; I. C. R. R. Co. v. Hammer, 85 Ill. 526.
    Mr. B. M. Mure, for appellee.
   Per Gwiam.

This suit was commenced by attachment before a Justice of the Peace, and went to the Circuit Court by appeal. On the trial in the Circurt Court, after the plaintiffs’ evidence was all in, the defendant moved to quash the attachment on the gronnd there was no evidence to support it. ■ The court thereupon said: “ The evidence will be withdrawn fro m the jury, and the jury directed to return a verdict for the defendant on the attachment, and a verdict for the plaintiff on the issue joined on the debt.”

The jury, without leaving their seats, rendered a verdict for the defendant upon the attachment, and for the plaintiffs on the debt, assessing plaintiffs’ damages at $65.83. Plaintiffs excepted to the instruction to find a verdict for the defendant on the attachment issue, and contends here that the judgment must be reversed because the court instructed the jury to find such verdict orally.

There was no evidence to support the attachment affidavit against ti. Wolf, who was the defendant, all the evidence on that issue having reference in fact to the husband of S. Wolf, whom the plaintiffs mistakenly supposed to be S. Wolf. The court therefore properly withdrew all such evidence"from the jury, as it had no reference to the issue made in the case they were trying.

There being no evidence then before the jury to support an issue of which appellants held the affirmative, the verdict of the jury must of necessity have been against the appellants on that issue. The verdict then is right, and the error of the court in orally instructing the jury as to what the verdict should be in such case instead of in writing as the statute requires, was one which caused appellants no injury, audit is well settled that an error in practice which is not injurious to the party complaining of it, will not reverse.

The portion of the instruction complained of was not a direction to the jury upon facts which they had before them for consideration, but a statement of what was the duty of the jury when no facts whatever were before them in support of the issue submitted to them. The error is entirely and purely a technical one, and could in the nature of the case have caused no wrong nor injury to the appellant. It is well settled that such an error will not reverse. The case of Greenwich Insurance Co. v. Raab, 11 Ill. App. 636, cited by counsel for appellant, was one where there were issues of fact before the jury, and evidence in support of those issues, and the court held that in such a case we would not examine narrowly to ascertain whether injury had been done by the improper instructions. Here it is very clear that ho injury has been done. There is no room whatever for a presumption to the contrary. We can not reverse for such an error and the judgment of the Circuit Court must be affirmed.

Judgment affirmed.


text:
    William Golder et al. v. William Mueller et al.

      Award — Fraud—Irregularity—Instructions—Practice.
    L Mere irregularity, in the absence of fraud, will not invalidate an award.
    2. A party can not be heard to complain of an error in an instruction which he himself caused to be made.
    3. In the case presented, it is held: That the evidence does not support the allegation of fraud against the arbitrators; and that there is no error in tae instructions of which the appellants can complain.
    [Opinion filed May 18, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. F. W. Tohrtellotte, for appellants.
    Mr. Mason B. Loomis, for appellees.
   Per Curiam.

Appellants brought suit to recover damages for a failure to deliver certain cedar posts which were contracted to be'delivered by appellees. Appellees pleaded an arbitration upon a submission by the parties “ of all manner of claims, actions, controversies and demands existing between the parties, and growing out of the said contract for the delivery of cedar posts,” and an award in their favor signed by two of the three arbitrators.

The main controversy of law and of fact in the case is over the question of the award; appellants claim that the arbitrators acted partially, corruptly and irregularly, and that the court erred in instructing the jury with reference to the law governing arbitrations and awards. We have examined the record carefully and find no evidence to support the allegation of fraud against the arbitrators.

Some little irregularity seems to have occurred, but mere irregularity, in the absence of fraud, will not invalidate an award.

The modification made by the court in appellants’ instructions were proper, and we find no error in the instructions which were given for appellees. Appellants’ fourth instruction, as given, was incorrect, but the mistake in improperly using the word “not” in the instruction was the mistake of the attorney who drew it, and not the mistake of the court. A party can not be heard to complain of an error which he himself caused to he made. Appellants’ first instruction was properly refused. To have given it would have been fatal error.

After a careful consideration of all the points made by appellants we find none of them sustained. The facts and the law.arising thereon are both clearly against appellants; there is no error in the record, and the judgment of the Superior Court must therefore be affirmed.

Judgment affirmed.


text:
    William S. Lane v. Maud B. Lane.

      Divorce — Solicitor's Fees and Alimony — Order Pendente Lite.
    1. This court will not interfere with an order in divorce proceedings allowing solicitor’s fees and alimony pendente lite, unless it is very clearly shown that there has been an abuse of discretion.

      2. While in making such orders the court will always be governed by the condition in life of the parties, the property of the husband, the necessities of the wife and children and their condition of health, it is not necessary that it shall be shown that the husband has property or money when the order is made, to justify it.
    [Opinion filed May 18, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. O. M. Hardy, for appellant.
    Mr. William B. Bradford, for appellee.
   Moran, J.

Appellee filed a bill for divorce charging habitual drunkenness and extreme and repeated cruelty against appellant, and praying for the custody of the child. She alleged that appellant could, “if he would, earn a good living for himself, wife and child, and is able to furnish support for them and provide for them if so disposed,” and that she is without means. A petition for temporary alimony and suit money was filed, and upon the hearing thereof on affidavits, on the one part showing appellant’s ability and on the other his absolute lack of money and property, the chancellor made an order that appellant pay appellee $50 for solicitor’s fees in thirty days, and $5 a week in advance as alimony pendente lite. From said order this appeal is prosecuted, and it is urged that, under the proof made hy appellant in the affidavit filed in his behalf, he was wholly without money or property, and the making of such order was an abuse of judicial discretion. There is a conflict in the evidence as found in the affidavits on the question of appellant’s ability to earn means of support for his wife and child, and it appears from the record that several of the affiants, as well as appellant and appellee, were examined before the court in a proceeding in this case for the custody of the child, which resulted in the court’s ordering it into the custody of appellee. The chancellor had thus an opportunity of judging, to some extent at least, as to the fairness and truthfulness of some of the affiants from their appearance and manner of testifying before him, in a matter arising in the same controversy, and may have been- enabled ■ from such experience to more correctly weigh statements appearing in the affidavits of the same witnesses. The making of such orders as the one here appealed from, is largely in the discretion of the Circuit Court, and such discretion is subject to review. The Supreme Court has said that an appellate tribunal is authorized to reverse only where the difference in judgment between the Appellate Court and the Circuit Court is strong and decided. Foote v. Foote, 22 Ill. 425. That was said in a case where the court were asked to review a decree for permanent alimony, and we think the rule as to reversal announced may well restrain an Appellate Court from interfering with the pendente lite order unless it is very clearly shown that there has been an abuse of the discretion lodged in the court of original jurisdiction.

While such order is appealable it is in its nature purely interlocutory. The allowance is but temporary and is subject to modification, and its enforcement is under the control of the court. It is not to be assumed that the court would punish for contempt wh.en the showing was clear that the defendant was really unable to perform. Appeals from such orders only tend to embarrass the administration of this branch of jurisdiction, and to defeat the exercise of the power vested in the court by the statute, which was given to provide a support for the wife and children while the unhappy litigation is in progress. While, in making such orders, the court will always be governed by the condition in life of the parties, the property of the husband, the necessities of the wife and children, and their condition of health, and all such circumstances, yet it is not necessary that it shall be shown that the husband has property or money at the time the order is made to justify making it. He may be able to pay something toward the support of his wife and child, even though he should not on the day -the order is entered have money. In Parker v. Parker, 61 Ill. 369, the Supreme Court said: “ It can not be that the court would have no power to decree alimony in money simply because the defendant has no productive property, as seems to be contended by counsel, or even if he was destitute of property. Mere want of means does not release a father from the duty of supporting his helpless infant children, or contributing to the support of a wife who is divorced for his unmanly abuse and cruelty.” We should be very loth to hold that the order of a court, requiring a husband to perform a duty which the law imposes upon him, was an abuse of judicial discretion, and could interfere with such an order only where it was affirmatively and clearly shown to be erroneous upon consideration of all circumstances contained in the record.

Ho sufficient reason is shown for disturbing the order appealed from, and the same will be affirmed. *

Affirmed.


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    Terrence O’Neil v. John Nelson.
    • Practice — Action of Debt on Appeal Bond — Proper Assignment in Plaintiff's Declaration — Form of J udgment — How Error may be Cured— Reversal — Amendment of Declaration.

    1. In an’action of debt on appeal bond the judgment order should be for the debt, the penalty to be discharged by the payment of the damages assessed.

      2. Where the judgment order is for both the debt and damages assessed, the error may be cured in the trial court on motion even after the term, the error being merely a clerical inadvertence.
    3. In the case presented, it is Jield: That while the error might be corrected by the entry of the judgment in proper form in this court, the cause must be remanded because there is no proper assignment in the plaintiff’s declaration of breaches of the condition in the bond.
    [Opinion filed May 18, 1886.]
    Appeal from the County Court of Cook County; the Hon. Eichard Prendergast, Judge, presiding.
    Mr. Josn N. Jbmisom, for appellant.
    Mr. P. L. O’Meara, for appellee.
   Moran, J.

This was an action of debt upon an appeal

bond. The verdict found the issues for the plaintiff and found’the debt to be $200, and assessed the plaintiff’s damages at $101.50; upon the verdict, which was correct in form, the judgment order was “that the plaintiff do have and recover of and from said defendants the sum of $301.50, and the costs, etc., and that they have execution therefor.” This judgment is erroneous. It should he for the debt, the penalty to be discharged by the payment of the damages assessed. ■ The execution is for the debt with the indorsement of the damages assessed, which amount of damages only the Sheriff can collect. Parisher v. Waldo, 72 Ill. 71; Mathison v. Stephens, 9 Ill. App. 435; McConnel v. Swailes, 2 Scam. 571.

This error might have been cured in the court below on motion, even after the term, because, as is said iñ Freeman on Judgments, Sec. 70, “It so clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts established by the record; that the court acts upon the presumption that the error is á clerical misprision rather than a judicial blunder, and sets the judgment, or rather the judgment entry, right, by an amendment nunc fro tuno.”

From the verdict which is in the record it clearly appeal s what form of judgment the plaintiff was entitled to, and the judgment entered is the ministerial inadvertence of the clerk in writing up the order and not an error in the exercise of judicial discretion. Ives v. Hulce, 17 Ill. App. 30; Tucker v. Hamilton, 108 Ill. 464.

This error in entering the judgment might he corrected by the entry of a judgment in proper form in this court, but the judgment below would have to be reversed, and the costs of appeal would be against appellee. McConnel v. Swailes, supra; Rees v. Morgan, 3 Durn. & E. 349.

' There are, however, such other assignments of error that we deem it proper to remand the case. There is no proper assignment of breaches of the condition of .the bond in the plaintiff’s declaration.

The main condition of the bond is that the appeal shall be prosecuted with effect. The usual and proper assignment of breach is, that the appellant did not prosecute the appeal with effect, but that the same was at a term of said court, etc. If the appeal was dismissed that should be the allegation, but if the case was tried and instead of the judgment of the justice being technically affirmed by the order of the court, an original judgment for possession is entered in the Circuit Court, then it is loose, argumentative pleading to allege that the judgment appealed from was affirmed. If the appeal was dismissed it might be alleged that the judgment was affirmed, that being the only and the direct legal effect of the dismissal of the appeal, but when the appeal remains in the court and the court renders a new judgment, though it may be the same as the judgment below, it can not be said to be an affirmance in legal effect, for the judgment below becomes extinct and a iiew one is created. Young v. Mason, 3 Gilm. 55.

Appellee should amend this declaration in the court below so as to allege that the defendant did not. prosecute his appeal with effect, but that upon a trial thereof, etc., the said plaintiff had judgment for the possession of the premises sued for before the Justice, etc. Then the introduction of his judgment order will support the allegations of his declaration and accord with the rule that the proof must'be secundum allegata. Sugden v. Beasley, 9 Ill. App. 71; Ives v. Hulce, 17 Ill. App. 30, 35; Sutherland v. Phelps, 22 Ill. 91; Mix v. People, 92 Ill. 549; Boynton v. Robb, 41 Ill. 349.

The judgment will, therefore, be reversed and the case remanded to the court below for such action as the parties may desire to take not inconsistent with this opinion.

Reversed and rema/n,ded.


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    Arthur Christin v. James Erwin.

      Action for Damages for Personal Injury — Collision at Street Crossing —Questionsfor Jury — Instructions—Damages, not Excessive.

    In an action to recover damages for personal injuries resulting from a collision at a street crossing, it is held; That the questions of fact and negligence were for the jury; that the evidence supports the inference of negligence on the part of the defendant’s driver; that whether the instruction as to comparative negligence contains the requirement of ordinary care is immaterial as that requirement was contained in other instructions;' and that the verdict for $2,500 damages is not so large as to require a reversal as excessive.
    [Opinion filed May 13, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Kiek Hawes, Judge, presiding.
    Messrs. Grant & Brady, for appellant.
    Messrs. Brandt & Hoeeman, for appellee.
   Per Curiam.

Appellee brought his action to recover for injuries received in consequence o'f a collision, at a street crossing, _ of the buggy in which appellee was riding and a heavy wagon driven by the servant of appellant.

The circumstances of the collision were related to the jury by three witnesses called by appellee, and by one called by appellant. The question of fact and the question of negligence were peculiarly for the determination of the jury, and the finding is binding here unless manifestly against the weight of evidence, or unless some error of law was committed" at the trial. The evidence in the record abundantly supports the inference that appellant’s driver was negligent, and that appellee and the driver of the vehicle in which he was riding at the time of the accident were in the exercise of ordinary care. It is urged that plaintiff’s instruction as to comparative negligence omits the requirement of ordinary care. If the criticism is just, that requirement was so prominently put forth as essential to recover in other instructions,” we think no prejudice resulted to the defendant. C. & A. R. R. Co. v. Johnson, 116 Ill. 206. The other instructions of the appellee are without fault, and the jury were fully, even elaborately instructed on behalf of appellant. We are unable to say that the damages are so large, that, considering all the circumstances, the case should be reversed on that ground. Our examination of the record discloses no error which will authorize a reversal, and the judgment of the Circuit Court must therefore be affirmed.

Judgment affirmed.


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    In re Estate of John Noble.

      Practice — Depositions—Statute to he Strictly Pursued — Waiver—Witnesses to Wills — Competency of.

    1. While the statute authorizing the taking of depositions must be strictly pursued, in reviewing the action of a trial court in admitting a deposition alleged to have been irregular, this court will not reverse unless such action clearly appears to have been erroneous.
    2. Under the circumstances of the case presented, this court holds that it was incumbent on the appellant to make his motion to suppress before the depositions were opened upon his motion.

      3. The term “credible witnesses,” as used in the statute in speaking of witnesses to wills, means competent witnesses. *

    4. In the case presented, an instruction, touching a witness who had pleaded guilty of the crime of forgery, in which the words “incompetent” and “incredible” are used as synonymous terms, is held to be correct.
    [Opinion filed May 18, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Loren 0. Collins, Judge, presiding.
    Messrs. H. O. McDaid and W. S. Cox, for appellant.
    Messrs. Hutchinson & Luff and J. M. Jewett, for proponents.
   Per Curiam.

This is an appeal from an order of the Circuit Court of Cook County, admitting the will of John Moble, deceased, to probate and record. The first error assigned is the refusal of the court to suppress the depositions of the subscribing witnesses to the will, which were taken before a notary public, for the reason as alleged that said depositions were not properly inclosed as required by law, when they were delivered by the commissioner to the-’clerk of the court. It is contended by appellant that the said depositions were merely wrapped in legal cap and sealed, and that the ends of the roll or package was not covered or inclosed. It is not claimed that the depositions were in any manner tampered with or altered, and it appears that appellant’s counsel made a motion in court to have the depositions opened, and that in his presence and in the presence of the court the said depositions were opened by the clerk, by slitting or cutting the wrapper that wás around them. It was not till after the depositions had been so opened upon appellant’s motion, that the motion to suppress them, because not properly inclosed, was made.

The motion to suppress was heard on affidavits, and there is a direct conflict between the affiants as to the manner in which the depositions were wrapped, and it is difficult to determine, from all the evidence, whether the depositions were entirely inclosed and covered, ends and all, at the time they came to the cleric’s hands.

Under the circumstances of this case, and the claim that appellant now makes as to the condition in which the depositions were, we think it was incumbent on appellant to have made his motion to suppress before he had the depositions opened. From their condition, if brought to the notice of the court before they were opened, the question as to whether they were properly inclosed could be better determined, and it is clear from the nature of the alleged defect in the covering that it must have been visible to coun.-el before the motion to open them was made. There is in the course pursued by counsel for appellant in moving to open the depositions, an element of waiver of defects, in the manner in which they were inclosed, which were then visible to him. While the statute authorizing the taking of depositions must be strictly pursued, and the court will not readily overlook any disregard of its explicit requirements, or failure to comply with its directions, yet in reviewing the action of a trial court, as to such a question as is here presented, we can not reverse unless we are fully convinced that the action of the trial court was erroneous. In view of all the facts and circumstances as they appear to us from the record in this case, we are unable to say that the Circuit Court erred in overruling appellant’s motion to suppress the depositions.

Complaint is made that the court invaded the province of the jury in telling them in an instruction that the mere fact alone that a witness was “ at the time of his examination as a witness in this case, under indictment, and had pleaded guilty to the crime of forgery, did not render him incompetent or incredible as a witness to the execution of the writing introduced in evidence as the last will and testament of John Noble.”

The term “ credible witnesses,” as used in the statute in speaking of witnesses to wills, means competent witnesses, and in the instructions given the court used the words “incompetent” and “ incredible,” as synonymous terms, as we underhand, and in that sense the instruction was entirely correct.

It may be that the instruction could be understood as referring to the credibility of the witness in the sense of truthfulness or veracity, if there was no other instruction on that point; but in view of the fact that the j ury were told repeatedly, in the instructions given for the appellant, that they were the judges of 'the credibility of the witnesses, and that they were entitled to judge of such credibility from all the evidence in the case, we think it quite impossible that the use of the word “ incredible,” as it was sued in the instruction complained of, could have misled the jury in any way. Other errors assigned it is unnecessary to discuss. It is sufficient to say that, on a careful consideration of the whole record, we find no error which would authorize a reversal of the case, and the judgment of the Circuit Court must therefore be affirmed.

Judgment affirmed.


author: McAllister, P. J.

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    Henry Beidler v. Charles S. Crane et al.

      Creditors' Bills to Beach Shares of Stock — Beview of Evidence — Fraud.
    Upon creditors’ bills filed to subject certain shares of stock in defendant corporations to the payment of certain judgments against one of the defendants, this court holds that the evidence supports the decree of the court below for the complainants, based on the fraudulent conveyance of certain letters uatent.
    [Opinion filed May 18, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Mubjbay F. Tuley, Judge, presiding.
    Mr. Geobge W. Staotobd and D. W. Munn, for appellant. The court, should have, by the decree, preferred the actual advances made by appellant on account of the patents. The court should have protected Beidier in his actual • advances, and for the purpose of ascertaining the amount of such advances the court should have referred the case to the master to take proof on the specific question of how much and when Beidler had advanced money to Ellithorpe for account of these patents. Clements v. Moore, 6 Wall. 312.
    The patents having been assigned, the court had no power under the law to subject them to the payment of the debts of Ellithorpe; they could not be sold on execution while in his hands, and a sale of them by him would give the purchaser the title free of any claim in law or equity against Ellithorpe. Stevens v. Cady, 14 How. 529; Stevens v. Gladding, 17 How. 447; Patterson v. Kentucky, 7 U. S. 506; Ayer v. Murphy, 105 U. S. 129.
    Messrs. John Lyle King and Henry T. Helm, for appellees.
   McAllister, P. J.

The appellees having each in his own name recovered in a court of record judgment for a money indebtedness against A. C. Ellithorpe, and respectively exhausted his remedy at law upon the same, brought, in their separate right, creditors’bills in the court below against said Ellithorpe, Henry Beidler, the Ellithorpe Safety Air Cushion Company and the Ellithorpe Air Brake Company, for the purpose of subjecting shares of stock in said respective companies standing in the name of said Beidler to the payment of said several judgments. The alleged grounds for such relief were : that Ellithorpe being the inventor, and as such, the owner of letters patent issued to him from the United States Patent Office for a certain air cushion to be applied to elevators in buildings, also another patent for an air brake for the same use, both being designed to promote safety and convenience in the construction and operation of such elevators and of great value — that Ellithorpe^ being the owner of such valuable patents, but being indebted to the appellees at the time and insolvent, for the purpose of hindering, delaying and defrauding his creditors, assigned said patents to Beidler; that thereupon Ellithorpe, with the concurrence of Beidler, caused said companies to be organized as corporations, had Beidler assign said patent for the air cushions to the Ellithorpe Safety Air Cushion Company and that for the air brake to the Air Brake Company aforesaid; that each patent was estimated as capital in the company to which it was so assigned; that the capital of each was divided into shares, the principal and substantial part of all which stood in Beidler’s name, but were in fact held by him in secret trust for said Ellithorpe, who from the first and ever since, had the control of the business and took substantially all that was made by either company.

Answers and replications having been filed, all the causes, by the taeit if not the express consent of all parties contesting, including Beidler, were consolidated and heard as one cause, and a decree passed finding said assignment of patents fraudulent and void as to plaintiffs, subjecting said shares of stock to the paymmt of said judgments, from which Beidler alone appealed to this court.

We have given the evidence in this case a very careful examination and think it sufficient ,to support the decree, but shall not enter upon the useless task of discussing it in detail. The record shows that the decree is based substantially and almost wholly upon the testimony of Ellithorpe and Beidler. Although they were first examined before a master, they were both afterward examined orally in open court upon all the issues, so that the chancellor had a better opportunity, not only of judging as to their credibility, but was better prepared" to draw inferences in respect to the motives by which they had been actuated in conducting the transactions involved than we can be from reading their testimony in the record. But, as it appears in the record, we think it discloses several badges of fraud: 1. The assignment of the patents was, as it was required to be, in writing. It is absolute on its face. By the answers of both parties it is’ averred that such assignments were made to secure Beidler for advances of money which he had and was.to make to Ellithorpe to support him and his family, and enable him to develop and bring out his inventions. And Ellithorpe in his testimony supported that theory. But Beidler in his examination before the master testified that there was no previous arrangement in regard to the assignments; that the first he knew about it was, that Ellithorpe brought to him the assignment already made, and he could testify to no arrangement in reference thereto that was made at that time. He, in his oral examination, stated as a conclusion that the assignment was absolute upon the giving up of certain notes of Ellithorpe which he held, but he was unable to give any satisfactory evidence of an agreement to that effect. We think that Beidler must accept the position that upon the theory of the defense the assignment was made as a security. 2. The evidence was of such tendency that the chancellor was justified in finding that attempts were made between Ellithorpe and Beidler to magnify the indebtedness of Ellithorpe for advances by means of fictitious notes. 3. The evidence shows that Ellithorpe controlled the disposition of the patents after they were assigned, organized the corporations and had Beidler assign the patents to such corporations as aforesaid, and although the shares of stock stood in Beidler’s name, Ellithorpe not only controlled their affairs hut enjoyed substantially all the benefits of their operations. Several badges or fraud were clearly shown. Bump on Fraudulent Con., 3d Ed., p. 41 et seq.

But it is said that Beidler did not know that Ellithorpe was indebted to the plaintiffs at the time of the alleged fraudulent, transactions. It is true that he would not admit in giving his l testimony, any such knowledge, and even denied it. But Ellithorpe’s complete insolvency was shown, and it appeared that their wives were related, and that Beidler had had such business relations with both Ellithorpe and his wife outside the transactions in question that he must have known that Ellithorpe was financially worthless, and had_ creditors whose debts he was seeking to evade the payment of. We think the evidence supports the decree and that it should be affirmed, there being no error of law.

Affirmed.


author: Bailey, J.

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    Benjamin A. Mink v. Daniel F. Crilly and Charles H. Blair.

      Husband and Wife — Wife's Property Loaned to Husband, not Subject to his Debts — Trover—Instruction.
    1. Under our statutes the husband occupies the same relation to the wife’s property as does a stranger. A loan of her property to him, to use in carrying on his business, does not make it his or subject it to his debts.
    2. In an action of trover to recover the value of certain fixtures, loaned by the wife to the husband, and taken on a distress warrant for his indebtedness, it is held: That the placing of the wife’s property in the hands of the husband for the purpose of carrying on his general trade, did not subject it to the payment of his debts; and that a contrary instruction was erroneous.

      Wilson v. Loomis, 55 Ill. 352, and Robinson v. Brems, 90 Ill. 351, distinguished.
    [Opinion filed June 8, 1887.]
    Appeal from the County Court of Cook County; the Hon. Richard Rrendergast, Judge, presiding.
    Hr. Levi Sprague, for appellant.
    Mr. Daniel L. Shorey, for appellees.
   Bailey, J.

This was an action of trover brought by Benjamin A. Mink against Daniel F. Crilly and Charles A. Blair, to recover the value of certain fixtures, furniture and utensils in a meat market formerly occupied by one William C. Ogden. Said property seems to have been seized by the defendants on a distress warrant issued by them against said Ogden, and afterward sold on a judgment and execution in the distress proceedings. In September, 1884, said Ogden rented said meat market of the defendants. Said fixtures, furniture and utensils appear to have been in the market at the time Ogden rented it, and the evidence tends to show that Mrs. Eliza Ogden, the wife of said William 0. Ogden, for the purpose of furnishing her husband facilities for carrying on business in said market, purchased said fixtures in her own name and with her own money and allowed her husband to use the same, he paying her $5 per month therefor.

In June, 1885, Ogden failed in business, and on the 1st day of August following, the defendants distrained said property, the same still remaining in said market. The evidence also tends to show that some time after the failure of Ogden and prior to the levy of the distress warrant, Mink, the plaintiff, purchased said property of Mrs. Ogden, but that the defendants, having taken pos:ession of said market, fastened the same up and debarred the plaintiff from access thereto for the purpose of removing said property therefrom. On this evidence the court, at the instance of the defendants, gave to the "jury the following instruction :

“ The court instructs the jury that if a married woman places her own separate property in the hands of her husband for the purpose of carrying on his general trade, and if he so uses it, then such property will be liable for the debts of the husband.”

Under our statutes in relation to the rights and liabilities of married women, the husband occupies the same relation to the wife’s property as does a stranger. She may sell it or loan it to him, or constitute him her agent for its management or disposition, but a gift of it by her to him will not be presumed, in the absence of proof to that effect. Tomlinson v. Matthews, 98 Ill. 178. Hada stranger purchased the property in question of the former owner and loaned it to Ogden to be nsed by him in his market, no one, we think, would insist that such facts alone would make it liable to be taken for Ogden’s debts. In the absence of fraud or collusion the lender would still retain the title to the property as against creditors, and would have a right any time to reclaim it as against them. As the law now stands, Mrs. Ogden occupied the same position, and the mere fact that she loaned said property to her husband to use in carrying on his trade or business, did not make it his property or subject it to his debts.

The foregoing instruction, however, is sought to be justified by the decisions of the Supreme Court in Wilson v. Loomis, 55 Ill. 352, and Robinson v. Brems, 90 Ill. 351. In those cases the wife.-advanced her money to the husband to be used by him in carrying on a general business or trade, and by a collusive arrangement between them said business was carried on in the name of the wife, the husband managing it, and by his labor and skill in the undertaking, increasing the fund. It was held that the entire fund thereby became liable to the husband’s debts. It is manifest that the facts in those cases involved various elements which are wanting in the hypothesis of said instruction. Mrs. Ogden did not advance to her husband money to be employed by him in general trade or-business, but simply loaned to him specific articles of personal property, to be used by him in his business, and to be afterward returned to her in specie. There was no commingling of her money with his gains and earnings, and there is no hypothesis in the instruction of fraud or collusion between them. Said authorities therefore involve a slate of facts essentially different from the present case, and do not tend to justify said instruction.

For the error in giving said instruction the judgment will be reversed and the cause remanded.

Judgment reversed.


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    Eliza Ogden v. Charles Danz and James Crowley.

      Practice — Appeal from Justice — Time of Filing Transcript — Continuance— Waiver.

    1. Upon appeal from a Justice of the Peace, where the transcript of the judgment is not filed ten days before a term of court, the cause does not stand for trial at that term, and, except with the consent of both parties, can not be tried.'

      2. Where the court has improperly refused a continuance, the defendant does not waive the error by taking part in the trial and contesting the plaintiff’s claim upon the merits.
    [Opinion filed June 8, 1887.]
    Appeal from the County Court of Cook County; the Hon. Bichaed Pbehdeegast, Judge, presiding.
    Mr. Levi Spbague, for appellant.
    Mr. W. L. Shell, for appellees.
   Bailey, J.

This was a suit brought by Charles Danz and James Crowley against Eliza Ogden, before a Justice of the Peace, where judgment was rendered in favor of the plaintiffs for $76.35 and costs. The defendant thereupon appealed to the County Court by filing her bond with the clerk of that court, August 6, 1885. On the 6th day of May, 1886, the appearance of Charles Danz, one of the plaintiffs, was entered in the County Court by his attorney and nothing further was done in the case until November 29, 1886, when the transcript from the Justice was filed in that court.

On the 8th day of December, 1886, being one of the days of the November term, 1886, of said court, the cause was called for trial, whereupon the defendant moved for a continuance on the ground that the transcript from the Justice was not filed ten days prior to the first day of said term, which motion was overruled by the court, and to which decision the defendant duly excepted. A trial was then had before the court and a jury, resulting in a judgment in favór of the plaintiffs for $76.35 and costs.

It is urged by the defendant that the evidence does not sustain the verdict and judgment. The bill of exceptions fails to show that any motion was made in the court below for a new trial, or any exception taken to the decision of the court overruling such motion. In the absence of such motion and exception, the question whether the evidence was sufficient to support the verdict is not open for consideration in this court. Hor is the appellant aided by the fact that the clerk has seen fit to copy what purports to be a motion - for a new trial into the transcript of the record. Such motion, unless preserved in the bill of exceptions, is no part of the record, and the exception to the order overruling such motion can be preserved only by a bill of exceptions.

But the decision overruling the motion for a continuance was clearly erroneous. The 68th section of the statute in relation to Justices and Constables provides that, “in case the appeal from the Justice of the Peace is perfected by filing the papers and transcript of judgment ten days before the commencement of the term of the court to which the appeal is taken, the appearance of the appellee may be entered in writing and filed among the papers in the case, and if so entered ten days before the first day of the term of court, the case shall stand for trial at that term.” It is plain from the provisions of this statute that where the transcript of the judgment is not filed ten days before a term of. court, the cause does not stand for trial at that term, and except with the consent of both parties, can not be tried. That this is the interpretation given to the statute by the decisions of both the Supreme Court and of this court, is apparent from the following cases: Hayward v. Ramsey, 74 Ill. 372; Sheridan v. Beardsley, 89 Ill. 477; Camp v. Hogan, 73 Ill. 228 ; Reed v. Driscoll, 84 Ill. 96; McMullen v. Graham, 6 Ill. App. 239; Schmidt v. Skelly, 10 Ill. App. 564; Faas v. O’Connor, 6 Ill. App. 693; Marsh v. Dingman, 16 Ill. App. 406.

It is insisted, however, that the defendant, by taking part in the trial and contesting the plaintiffs’ claim upon the merits, waived the error of the court in refusing a continuance. Such acts, in our opinion, do not constitute a waiver. Had the defendant proceeded to trial without interposing-any motion for a continuance, or in any way challenging the right of the court to try the cause at that term, her conduct doubtless would have been a waiver, and she could not have raised the objection afterward. But she made her objection in apt time and pre7 served -her exception, and she is now at liberty to insist on the error in refusing her motion.

To illustrate, the defendant alleges as a further and distinct reason why the cause should have been continued, that the appearance of James Crowley, one of the plaintiffs, was not entered in the County Court until the cause was called for trial. Such appears to have been the fact, but that fact was not set up or alleged in the defendant’s motion for a continuance, nor did she object to going to trial on that ground. She must therefore be deemed to have waived that objection, and can not now set it up as a ground of complaint.

For the error in refusing a continuance the judgment will be reversed and the cause remanded.

Judgment reversed.


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    John W. Conley, Impleaded, etc., v. Ebenezer Jennings et al.

      Partnership — Evidence to Charge One as a Partner — Declarations of Others — Instructions—Improper Modifications.

    1. Where the question at issue is whether several persons are partners, the declarations or admissions of one of them are evidence against himself only, and have no tendency to establish a partnership against the others.
    2. In the case presented, it is held; That certain modifications of the instructions made by the court were erroneous because not based on the evidence, and because they state'or imply that one may be charged as a partner, as to third persons, merely by being represented or held out by the members of the firm as such.
    [Opinion filed June 8, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Hollín S. Williamson, Judge, presiding.
    Messrs. Monboe & Tewkesbury and A. B. Jenks, for appellant.
    Messrs. Follansbee & O’Connor, for appellees.
   Bailey, J.

This was a suit by attachment brought by Ebenezer Jennings and others, copartners under the firm name of E. Jennings & Co., against Warren 0. Hollister and others, copartners under the firm name of Hollister, Westlake & Co., to recover upon an open account for goods, wares and merchandise sold and delivered, etc. The attachment affidavit, as also an amended affidavit subsequently filed, alleged that the firm of Hollister, Westlake & Co. was composed of Warren C. Hollister, Ellis J. Westlake and George W. Cross, and the original process was issued and the declaration filed against them. Afterward, on motion of the plaintiffs, leave was given to amend all the papers and proceedings in the cause by making John W. Conley a party defendant. Hollister, West-lake and Cross were defaulted. Conley appeared and pleaded non assumpsit, and also a plea verified by affidavit, denying his joint liability with the other defendants. The cause being afterward tried before the court and a jury, a verdict was rendered finding the issues for the plaintiff and assessing their damages at $2,203.92, for which sum and costs the court, after overruling Conley’s motion for a new trial, gave judgment in favor of the plaintiffs. From this judgment said Conley has appealed to this court.

The sole contest at the trial was upon the issue as to whether said Conley was or was not a member of the firm of Hollister, Westlake & Go., and upon that issue a large amount of evidence was introduced by the respective parties, said evidence being directly and sharply conflicting. On this evidence, said Conley asked the court to give to the jury the following instruction, which the court refused to give as asked, but modified it by inserting therein the words in italics, and gave it to the jury so modified, viz.:

“ The jury are further instructed that mere talk or consultation about the formation of a copartnership amounts to nothing in law, unless the parties agree upon and assent to some positive and certain agreement to become partners, and then act upon the same, and if the jury believe, from the evidence in his case, that the various consultations between Hr. Conley and Hollister, Westlake and Cross, or either of them, testified to, resulted in no positive agreement on the part of Mr. Oonley to enter into a partnership, and that he did not, as a matter of fact, enter into a partnership with said persons, and, if you further believe, from the evidence, that defendant Gonley was not represented to be or held out to be apa/rtner in said firm of Hollister, WestlaTce dé Go., by said defendants, or either of them, until after said firm ceased doing business, then the plaintiffs can not recover as against defendant Oonley.”

One of the other instructions asked by said Oonley was given to the jury after having been modified in substantially the same manner. These modifications were erroneous, in the first place, because there is no evidence in the record upon which they can be based. If Oonley was a partner at all, he was a secret partner. In this all the witnesses agree, and there is no evidence that he was ever represented or held out by the other defendants or either of them, as a member of the firm, but the witnesses who testified that he was a partner, on the contrary, agree in testifying that his relation to the firm was kept a profound secret from all third parties.

But even if there had been evidence upon which the hypothesis introduced into the instructions by the modifications could be based, said modifications would still be clearly and manifestly erroneous. They hold, in substance, or at least by implication, that a person may be charged as.a partner, as to third persons, by being merely represented or held out to be such partner by the members of the firm or any one of them.

That such is not the law is too plain for argument. Where the question is whether several persons are partners, the decorations or admissions of one of the alleged partners are evidence against himself only, and have no tendency to establish a partnership as against the others. On this subject Mr. Parsons, in his treatise on partnership, says : “An admission by one partner (the partnership or joint liability having been proved or admitted) of a fact bearing on the issue of a case at bar, is admissible evidence ; so the existence of a partnership may be proved by the separate admissions of all who are sued; or by the acts, declarations and conduct of the partners; or by the acts of one and the declarations or conduct of the others. If there be a question of partnership, the admissions of one are evidence against him, but not against the others, unless the partnership is proved.” Pars. on Part. 194. So, in Degan v. Singer, 41 Ill. 28, the court, discussing the effect to be given to an admission of the partnership by one partner, say : “ It is manifest that his admissions could riot prove a partnership against the other defendants, any more than he could thrust himself upon them and become a partner against their will. His declarations were of course binding upon him, but not upon the other defendants. To bind them so as to affect their rights, we mnsf look to their acts and declarations, and not to those of other persons.”

We think the foregoing instructions, as modified, had a manifest tendency to mislead the jury in the decision of the question upon which the principal controversy at the trial arose, and that the error in giving them was so clearly prejudicial as to necessitate a reversal of the judgment. The j ndgment will, therefore, be reversed, and the cause remanded for a new trial.

Judgment reversed.


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    George Kronenberger v. Charles C. Fricke.

      Agency — Action to Recover Commissions on Sale of Real Property— Instructions.

    1. An agent employed to purchase property can not become the agent of the vendor.
    2. A person who attempts to act as the agent of both parties to a transaction, without disclosing such fact to his principals, is precluded from recovering compensation for his services.
    3. In an action against the vendor of certain real property to recover commissions upon the sale thereof, in which the evidence tended to show that the plaintiff, when he undertook to act for the defendant in making the sale, was in fact the agent of the vendee, and that the fact of such agency was not disclosed, it is held: That the court improperly refused an instruction submitting the question raised by such evidence to the jury; and that an instruction given, which ignored said question, was erroneous.
    [Opinion filed June 8, 1887.]
    Appeal from the Circuit Court of Cook County; the lion John G. Rogers, Judge, presiding.
    Messrs. JBarntjm, Rubens & Ames, for appellant.
    The law will not permit the agent of a purchaser to become the agent and recover commissions of the seller. Cottom v. Holliday, 59 Ill. 176; Short v. Millard, 68 Ill. 292; Story on Agency, Secs. 31, 210, 211; Smith v. Townsend, 109 Mass. 500; Walker v. Osgood, 98 Mass. 348; Farnsworth v. Hemmer, 1 Allen, 494; Schwartze v. Yearly, 31 Md. 278; Morison v. Thomson, 9 Law Rep. 480; Gardner v. Ogden, 22 N. Y. 347; Bollman v. Loomis, 41 Conn. 581; Lloyd v. Colston, 5 Bush (Ky.), 587.
    Messrs. Runyan & Runyan, for appellee.
   Bailey, J.

This was a suit commenced by Charles CFricke against George Kronenberger, before a Justice of the Peace, and afterward taken by appeal to the Circuit Court. The plaintiff’s demand is for commissions upon a sale of certain real property by the defendant to one Howe, the plaintiff, claiming that, at the instance and on the employment of the defendant, he furnished the defendant said purchaser. The trial before the Circuit Court and a jury resulted in a judgment in favor of the plaintiff for $190 and costs, and the defendant brings the record to this court by appeal.

The defense set up is, that the plaintiff, while undertaking to act for the defendant in the sale of said property, was in fact the agent of Howe, the purchaser. The evidence tends to show that for several months prior to said sale, Howe, being desirous of purchasing real property of a certain description, requested the plaintiff to find such property for him, and that the plaintiff in pursuance of such request, found several pieces of property which did not prove satisfactory to Howe; that on one occasion, while calling Howe’s attention to a certain one of said pieces of property, Howe told the plaintiff that the defendant’s property was for sale, whereupon the plaintiff said he would go and see about it; that he at once went and found the defendant, and without informing him of his relations to Howe, obtained from him a request to find a purchaser; that the plaintiff immediately returned to Howe and informed him that the defendant’s place was for sale and was a desirable piece of property, and advised him to go and buy it. Some days afterward Howe called on the defendant and purchased said property. The court, at the instance of the plaintiff, gave to the jury the following instruction : “ The court instructs the jury that if they believe from the evidence that Kronenberger had requested Fricke to sell his property, and that the plaintiff furnished a purchaser for the property of the defendant, and the defendant sold the property to the person so furnished, then the plaintiff is entitled to recover in this case.”

The defendant asked the court to give to the jury the following instruction, which was refused:

The jury are instructed that if they believe, from the evidence, that Fricke was employed by the defendant, Kronenberger, to negotiate a sale of certain real estate owned by Kronenberger, and that at the time of such employment Fricke was the agent of one Howe, to procure saloon property for said Howe, and that Fricke did not disclose to Kronenberger that he was the agent of Howe, and Kronenberger did not know that fact, and -that Howe and Kronenberger were brought together through the intervention of Fricke, and that Kronenberger carried on all negotiations with Howe himself, not knowing that Fricke was Howe’s agent, and afterward sold his said real estate to said Howe, then the jury are instructed that Fricke can not recover commissions from the defendant Kronenberger, and your verdict should be for the defendant.”

It is a well established rule of the law of agency, that an agent must not put himself, during the continuance of his agency, in a position which is adverse to that of his principal, for the principal bargains for the exercise of all the slcill^ ability and industry of the agent, and he is entitled to demand the exercise of all this in his own favor. For this reason, an agent employed to purchase property, can not himself become the vendor, nor can an agent employed to sell become the purchaser, as it would hold out a temptation to violate his duty if he were permitted to do so. For a like reason, an agent of the seller can not become the agent of the purchaser in the same transaction.

As a consequence of this rule it is held that a person who attempts to act as the agent of both parties to a transaction, without disclosing such fact to his principals, is precluded from recovering compensation for his services. Thus, in Carman v. Beach, 63 N. Y. 97, a broker who was already the agent of the vendee, was employed by the vendor to negotiate the sale of certain real property. In an action by the broker for his commissions, a judgment for the defendant was sustained on the theory that the facts established a renunciation by the plaintiff of his agency for the vendor prior to the sale, but the court in the opinion says : “ The defendant was entitled to the disinterested efforts and judgment of the plaintiff in the matter of the agency, and if the plaintiff had procured a purchaser, for whom he was also acting as agent, without disclosing the fact to the defendant, it would have constituted such a fraud as would have precluded him from recovering any compensation.”

In Farnsworth v. Hemmer, 1 Allen, 494, it was held that a broker who has acted for both parties in negotiating an exchange of real estate between them, without informing either that he was employed by the other) is not legally entitled to commissions for his services. The court say: “ It is of the essence of his contract that he will use his best skill and judgment to promote the interests of his employer. This he can not do where he acts for two persons whose interests are essentially adverse. He is therefore guilty of a breach of his contract. Nor is this all. He commits a fraud on his principals in undertaking, without their assent or knowledge, to act as their mutual agent, because he conceals from them an essential fact, entirely within his knowledge, which he was bound, in the exercise of good faith, to disclose to them.” See also, Scribner v. Collar, 40 Mich. 375; Raisin v. Clark, 41 Md. 158; Rice v. Wood, 113 Mass. 133; Bollman v. Loomis, 41 Conn. 581; Lloyd v. Colston, 5 Bush, 587.

The evidence tended to show that the plaintiff in 'this case, at the time he accepted the employment of agent for the defendant, was acting as agent of the other contracting party in respect to the same subject-matter, and that the fact of such agency was not disclosed to the defendant. The defendant, then, was entitled to have the questions raised by such evidence properly submitted to the jury by the instructions-But the instruction given to the jury at the instance of the plaintiff wholly ignored said questions, and told the jury that if the plaintiff had been requested by the defendant to sell his property, and furnished a purchaser therefor, he was entitled to his commissions, wholly irrespective of whether he was at the same time secretly acting as the agent of such purchaser in respect to the same matter. In this respect the instruction was manifestly erroneous.

, The defendant, by the instruction which the court refused to give, sought to have the jury instructed as to the proposition of law above discussed, andas we see no material objection to the form or matter of the instruction, we are of the opinion that it should have been given, and that it was error to refuse to give it. For the foregoing errors the judgment will be reversed and the cause remanded.

Judgment reversed.


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    John H. McMillan and Julius F. W. Thomsen v. Cyrus H. McCormick, Jr.

      Limitations — Sec. 11, Chap. 83, S. S. — Whether Applicable to Prior Trust Leed — Practice—Affirmarice.
    Upon a bill filed to enjoin the foreclosure of a trust deed, charging that, under Sec. 11, Chap. 83, R. S., the right to foreclose has been lost and is perpetually barred, and that said trust deed is no longer a lien upon the lands therein described and is a cloud on complainants’ title thereto, it is held: That, as the rights of the parties depend upon whether said section applies to a trust deed executed prior to its enactment, as its construction by the Supreme Court seems desirable, and as this court has been unable to sustain the position of the complainants, it is best simply to affirm the decree and allow the case to go directly to the Supreme Court.
    [Opinion filed June 8, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. Egbert B. Kendall, for appellants.
    Messrs. Jenkins & Harkness, for appellee.
   Per Curiam.

This was a bill in equity, brought by appellants against appellee, McCormick, and Gerhard Foreman, to enjoin the foreclosure of a trust deed.

The bill alleges that the complainants are severally seized in fee of two certain parcels of land situate in the City of Chicago; that complainant McMillan obtained title to one of said parcels under a Sheriff’s deed, upon a sale made by virtue of a judgment recovered by him at the July term, 1875, of the Superior Court of Cook County, against Samuel J. Walker; that complainant Thomsen obtained title to the other parcel under a Sheriff’s deed, by virtue of a judgment recovered by one Schloesser against Samuel J. Walker and Henry H. Walker, in said Superior Court, September 14,1874; that. ¡November 18, 1868, said Henry H. Walker, claiming to be the owner in fee of both of said parcels of land, executed a trust deed thereon to said ¡Foreman as trustee, to secure the payment of said Walker’s promissory note of that date for $20,000, payable ¡November 21, 1870, of which said note McCormick claims to be the legal holder; that the defendant Foreman, at the request of McCormick, has caused the notice of sale of complainants’ said lands to be published, claiming to act under the power of sale in said trust deed.

The bill charges that under the provisions of section 11 of chapter 83 of the Revised Statutes, the right to foreclose said trust deed, by sale of said lands, has been lost and is perpetually barred; that said trust deed is no longer a valid lien upon the lands therein described and is a cloud on complainants’ title which ought to be removed.

The bill was taken pro confesso as to the defendant Foreman. McCormick demurred, assigning, among other causes, “ that upon the face of said bill, and the facts stated in it, it does not appear that the right to have the said power of sale exercised, or the liability of .said land to be sold under said trust deed, or the cause of action accrued under said note and trust deed, all of which were in existence before the act stated and relied upon by said complainants went into effect, were or are affected by said act so relied upon or within the provisions of the same, but are by those provisions excluded therefrom.” The court sustained the demurrer and dismissed the bill, and complainant appealed to this court.

• As the decision of the principal question presented by the record depends upon the proper construction and effect of section 11 of the act in relation to limitations, Ch. 83 R. S., approved April 4, 1872, in respect to which we have been unable to reach a, conclusion favorable to appellants entirely satisfactory to ourselves, and inasmuch, as it seems desirable that a construction should be given to said section of the statute by the Supreme Court for the guidance of inferior tribunals, we have deemed it best simply to affirm the decree of the court below and allow the case to go directly to the Supreme Court.

As to the point made by appellants, that the court erred in dismissing the bill, after a default and decree fro eonfesso, against Foreman, it is only necessary to say that it being held that the case made by the bill is insufficient to entitle the complainants to the relief sought as to McCormick, and should be dismissed as against him, the case, as to Foreman, necessarily falls with it.

Affirmed.


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    Lillias P. Hayden, Impleaded, etc., v. Theodore S. Rogers.

      Húsband and Wife — Personal Liability of Wife for Family Expenses.

    Sec. 15 of the act in relation to husband and wife, imposes upon the wife a personal liability for indebtedness incurred for the expenses of the family, and not merely a charge upon her property to be enforced by proceedings in rem.

    [Opinion filed June 8, 1887.]
    In error to the Superior Court of Cook County; the Hon. Elliott Ahthohy, Judge, presiding.
    Mr. Allah C. Story, for plaintiff in error.
    Mr. Elmer W. Adkihsoh, for defendant in error.
   Bailey, J.

In this case Theodore S. Rogers brought suit

against Charles E. Coburn and Lillias JP. Hayden to recover the amount of an account for meat and poultry sold and delivered by the plaintiff to the defendants. Defendant Coburn was defaulted, and upon a trial as to the other defendant, the issues were found for the plaintiff and his damages were assessed at $329.54, for which sum and costs judgment was rendered against both defendants. Defendant Lillias P. Hayden brings the record to this court by writ of error.

At the time said account accrued, the defendants were husband and wife, said Lillias P. Hayden having since that time obtained a divorce from said Coburn and married one Harvey S. Hayden. It appears that said meat and poultry were sold by the plaintiff to the defendants to be used in their family while they were living together as husband and wife, and the suit was brought under the provisions of section 15 of the statute in relation to husband and wife which is as follows:

The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”

The defense sought to be interposed by Mrs. Hayden was based upon the theory that this statute imposes no personal liability upon the wife for family expenses, but merely creates a charge upon her property which can be enforced only by proceedings vn rem against such property as she was owning at the time the indebtedness was incurred. We are of the opinion that such is not the proper construction of the statute, Independent of its provisions the husband is personally liable for indebtedness incurred for the expenses of the family, and the statute, by providing that the wife may be sued jointly with him in respect to such indebtedness, necessarily imposes upon her a liability precisely commensurate .with his. The liability, therefore, imposed upon her, is necessarily a personal liability, for upon no other principle can effect be given to" this provision of the statute.

It may also be observed that the section ab'ove quoted was adopted by our Legislature from the Code of Iowa, and that the Supreme Court of that State has placed upon it the same construction above indicated. Smedley v. Felt, 43 Iowa, 607; Smedley v. Felt, 41 Iowa, 588; Jones v. Glass, 48 Iowa, 345; Marquardt v. Flaugher, 60 Iowa, 148.

We find no error in the record and the judgment will, therefore, be affirmed.

Judgment affirmed.