author: Ms. Justice Puterbaugh

text:
    John Adkins v. Mylo Lee et al.

      Contract—what failure to perform, tars recovery. A failure to perform a substantial and material part of a contract for the delivery of a heating plant will bar a recovery of the purchase price. A literal performance, however, is not essential to recovery.
    Assumpsit. Appeal from the County Court of Cass county; the Hon. Darius Walker, Judge, presiding.
    Heard in this court at the November term, 1906.
    Reversed and remanded.
    Opinion filed June 1, 1907.
    Rehearing denied November 26, 1907.
    Smith & Friedmeyer, for appellant.
    R. W. Mills, for appellee.
   Ms. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellees against appellant for the recovery of the amount alleged to be due them under a contract for the furnishing and installation of a furnace in the dwelling of appellant. The court tried the cause, without the intervention of a jury, found the issues for the plaintiffs, assessed their damages at .$321.40, and rendered judgment upon such finding. From said judgment defendant appeals and assigns as grounds for reversal that the judgment is contrary to the law and the evidence, and that the court erred in its rulings upon the propositions of law submitted.

The declaration consisted of the common counts, and a special count which sets out a contract between the parties whereby appellees, for the sum of $336.50, agreed to furnish and install in appellant’s residence by November 25, 1905, a furnace which should be erected in a substantial and workmanlike manner, and have the capacity to “heat the rooms in which registers were placed to seventy degrees Fahrenheit at the breathing line, in the coldest weather * * * when used intelligently and according to directions.”

Performance of the contract by the plaintiffs and a failure on the part of the defendant, are then averred. The plea of general issue was interposed, and a stipulation entered into between the parties that any defense might be made thereunder that could be under any, plea properly pleaded. No proof was offered tending to establish a right of recovery under the common counts.

The evidence shows that the furnace when installed failed to heat the kitchen according to the terms of the guaranty; that at times it. emitted gas in such quantities as to be exceedingly offensive, and that appellee failed to place a register in the parlor as provided by the contract.

We are of opinion that the finding of the court was clearly unwarranted by the evidence. To recover under the special count of the declaration it was essential that the plaintiffs should show a substantial performance of the contract on their part. This, we think, they utterly failed to do. The contract called for a furnace that would heat all the rooms of the house in which registers were required to be placed to the degree of temperature specified therein. It is not controverted that the furnace when installed failed to heat the kitchen in which a register was placed. It is sought to excuse performance in this respect by attempting to show that at the time the contract was entered into it was understood that the door between the dining room and kitchen was to be left open in order to supply the kitchen with sufficient heat, and that had this been done the temperature of the kitchen would have met the guaranty; also, that such failure to heat the kitchen was due to the unfinished condition of the building. The evidence fails to establish either of such contentions. The evidence shows that at the time of making the contract and guaranty, appellees examined the premises to be heated and then prepared and furnished appellant with a draft of the plan for the installation of the furnace and that it was erected in accordance therewith.

It is undisputed that the furnace emitted noxious and offensive gas and odors at times which circulated through the house causing great discomfort to the occupants. The contract was for the supplying and erection of a furnace to be used for a particular purpose, that of heating the house in question. Appellant had the right to rely upon the judgment and skill of appellees in the installation of the same, and to assume that when installed it would be reasonably fit for the purpose for which it was intended.

For the reasons aforesaid it was manifestly insufficient, unfit and unsuitable. While a literal performance of the contract might not have been necessary to a recovery by appellees thereunder and slight defects caused by inadvertence or unintentional omissions, such as the failure to supply and place a register in the parlor, would not necessarily have barred a recovery of the contract price less the expense of supplying such omission (Keeler v. Herr, 157 Ill. 57; Shepard v. Mills, 173 Ill. 223), the defaults referred to constituted such a failure to perform the contract in material and substantial particulars as to bar a recovery. The failure to supply a furnace which met the guaranty, and the installation of one which emitted gases through the house, cannot be said to be but slight or unimportant omissions or defects caused by inadvertence. We are cognizant of the well-established rule that the findings of a judge to whom a cause is submitted for trial without a jury is entitled to as much weight on controverted questions of fact as the verdict of a jury, and will not be set aside unless it is manifestly against the weight of the evidence, and we do not hesitate to apply the same in proper cases. Where, however, as in the case at bar, the evidence is clearly insufficient to support the finding and judgment, it becomes our duty to disapprove the same.

For the reasons stated the judgment must be reversed and the cause remanded.

jReversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    Florence H. Powers v. John Heffernan.

      Freehold—when involved for purposes of appeal. A freehold is involved where it appears that the appeal requires the determination by the Appellate Court of the question as to whether a perpetual easement was acquired by the transaction in question.
    Bill in chancery. Error to the Circuit Court of Champaign county; the Hon. Solon Philbriok, Judge, presiding.
    Heard in this court at the May term, 1907.
    Transferred to the Supreme Court.
    Opinion filed November 22, 1907.
    Ray & Dobbins, for plaintiff in error.
    Savage & Woods, for defendant in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a bill in chancery filed by Florence H. Powers, to which John Heifernan is party defendant. A decree was rendered by the Circuit Court dismissing the bill for want of equity. From such decree this writ of error is prosecuted by the complainant.

The bill alleges in substance that the complainant and defendant are the owners of adjoining lots of land in the city of Champaign, which were formerly owned by one Beardsley; that complainant acquired title to her said lots from Beardsley shortly before the filing of the bill, and that the defendant acquired title to his said lots from Beardsley some two years prior thereto. That Beardsley while the owner thereof, erected and maintained a building covering all of said lots, the only stairway in said building leading to the street being upon the property of the defendant immediately adjoining the line of the property now owned by the complainant. That at the time the defendant purchased said property from Beardsley he knew of the existence of such stairway and that there was no other means of access to the second story of the portion of the building now owned by complainant. That in the respective deeds from Beardsley to complainant and defendant, no reference was made to said stairway. That defendant is threatening to close up the stairway, which would be an injury to the complainant. The bill prays that complainant be decreed to have an easement over defendant’s property so far as the stairway is situated thereon for the use and continuance of said right of way of the stairway, and also the free and uninterrupted ingress and egress to and from the second story over her premises, and that the defendant may be restrained from attempting to exercise acts of exclusive ownership over said stairway.

The defendant filed his answer denying all the material averments of the bill.

It is manifest from the foregoing statement of the plaintiff that the issues involved necessarily require the determination as to whether complainant by reason of the facts averred in the bill acquired a perpetual easement in the use of the stairway in question.

The disposition and arrangement of two heritages or of one heritage consisting of several parts belonging to one owner for ease and convenience with reference to ways, light, etc., made during unity of seizin, which are apparent and continuous and necessary to the reasonable enjoyment of the several parts thereof, will be an easement upon the severance of title as to the different parts thereof, and upon a grant of a portion by the owner of the fee, each portion of the severed premises will pass subject to the burdens and advantages imposed or conferred as aforesaid. Morrison v. King et al., 62 Ill. 30; Martin v. Murphy, 221 Ill. 632; Ingals v. Plamondon, 75 Ill. 123; Clarke v. Gaffney, 116 Ill. 362; Cihak v. Klekr, 117 Ill. 643; Ins. Co. v. Patterson, 103 Ind. 582.

It is well settled that a perpetual easement in lands, or any interest in lands in the nature of such an easement, when created by grant, or by any proceeding which is in law' equivalent to a grant, constitutes a freehold; a legal interest in lands is to be deemed a freehold not because of the kind or quantity of the interest but by reason of its sufficient legal indefinite duration. Chaplin v. Commissioners, 126 Ill. 264; Oswald v. Wolf, 126 Ill. 542; Wessels v. Colebank, 174 Ill. 618.

It is equally well settled that this court has no jurisdiction to entertain an appeal or writ of error where a freehold is necessarily involved, and such jurisdiction is not acquired because the parties fail to raise the question of jurisdiction and submit the cause for decision on its merits. Town of Audubon v. Hand, 223 Ill. 367.

In conformity with the provisions of section 102 of the Practice Act (Laws of 1907, 464) the clerk of this court is directed to transmit the transcript of the record and all files in this case to the clerk of the Supreme Court to which court this cause is transferred.

Transferred to the Supreme Court.


text:
    Retail Merchants Association Mutual Fire Insurance Company of Illinois v. Fred W. Cox.
    1. Demubreb—when action of court in sustaining, not subject to revieio. The. action of the court in sustaining a demurrer to a pleading is waived hy obtaining leave to plead over.
    2. Insurance—what establishes prima facie case, in action upon policy. Proof of the execution and delivery of a policy, the destruction by fire of the property insured and the furnishing of proper proofs of loss within the time prescribed by the fire policy, establishes prima facie a right of recovery.
    3. Insurance—what waives “iron safe clause” of fire policy. A provision in a fire insurance policy which requires that the insured shall keep an iron safe in which to deposit his books of account, is waived where it apears by the application for the policy that he kept no books of account.
    4. Insurance—evidence competent to establish loss sustained under fire policy. Held, that evidence other than books of account and a formal inventory were competent to establish the amount of the loss sustained by a fire covered by a policy of insurance.
    5. Insurance—when effort at arbitration not condition precedent to recovery under policy. An effort to obtain arbitration of a disputed claim arising under a fire insurance policy is not a condition precedent to suit if it appears that an effort at arbitration would have been idle and unavailing.
    Assumpsit. Appeal from the Circuit Court of Greene county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the May term, 1906.
    Affirmed.
    Opinion filed November 22, 1907.
    Rainey & Jones and Charles B. Obermeyer, for appellant.
    Mark Meyerstein and F. A. Whiteside, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellee against the appellant company upon its policy of fire insurance, issued on January 18, 1904, under an application in writing made by appellee on a printed blank furnished by the company. The policy was in the sum of $5,000, being $1,000 on a one and one-half story frame building and additions occupied by appellee as a general store, $500 on store and office fixtures and furniture, and $3,500 on appellee’s general stock of merchandise.

The declaration consists of the common counts and a special count setting out the policy in haec verba, alleging in substance that the property insured was totally destroyed by fire, without the fault of appellee, on September 7, 1904.

The policy as set forth in the declaration, among other things, contains the following provisions:

“Books and Inventory to be Kept or Insurance Void. It is a part of the consideration of this insurance and it is expressly stipulated and required that the assured above named shall take an inventory of the stock above described at least once a year during the term of this insurance and shall also keep correct books of account in detail showing all purchases and sales of the same; and shall keep said inventory and books of account in an iron safe or other place secure from fire during the hours said store is closed for business.
“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.
“This policy is made and accepted subject to the foregoing and following stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provisions or conditions of this policy.
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein. ’ ’
“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership or if the subject of insurance be a building on ground not owned by the insured in fee simple.
1 ‘ This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to the actual cash value, with proper deductions for depreciation, however caused, and shall, in no event, exceed what it would then co.st the insured to repair or replace the same with material of like kind or quality, that said ascertainment or estimate shall be made by the insured and this company, or if they differ, then by appraisers as hereinafter provided; and the amount of the loss or damage having been thus determined, the sum for which this company is liable shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of loss has been received by the company in accordance with the terms of this policy. In the event of disagreement as to the amount of loss, the same shall as above provided be ascertained by appraisement and the loss shall not' become payable until sixty days after the notice, ascertainment, estimate or satisfactory proof of loss shall have been received by this company, including award of appraisers when appraisal has been required. No suit or action on this policy for any recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements,” etc.

To this declaration appellant filed the general issue and twelve special pleas. Demurrers were interposed and sustained as to all of the special pleas, excepting those numbered 11 and 12, whereupon appellant asked and was granted leave to amend the same, and afterward filed amended fifth and ninth pleas. Issue was joined upon such amended pleas and said pleas 11 and 12, and a trial had by the court and a jury, which resulted in a verdict and judgment for the plaintiff for $3,750.

By its amended fifth plea appellant alleged that appellee was to keep proper books of account, etc., and avers that he negligently and carelessly left them on a wooden counter or desk, so that the same would be destroyed by fire. To this plea appellee replied, first, denying that he carelessly and negligently left them on a wooden counter, so that they would be destroyed by fife; second, averring that the appellant had notice, before the issuing of the policy, that appellee had no iron safe wherein to keep the said books of account, etc.; and third, averring that after receiving notice of the fire, appellant sent its adjuster to adjust his loss; that said adjuster called for the books, inventory, etc., and was then and there informed by appellee that the same had been totally destroyed in the fire; that the adjuster was then and there also informed by appellee that he did not keep his books of account and inventory, etc., in an iron safe, etc.; and with full knowledge of such facts, appellant’s adjuster then and there informed appellee that if he, appellee, would secure duplicate bills of the goods purchased by him, that the appellant would settle his loss; that after-wards appellee did produce duplicate bills of all goods so purchased by him and notified appellant of that fact prior to the institution of this suit; and that after such notice the appellant refused to settle the loss. Appellant filed rejoinders denying each of these replications, upon which rejoinders issue was joined.

Appellant, by its ninth amended plea, denied that appellee was the sole and unconditional owner of the property insured, upon which plea issue was taken. '

By its eleventh plea appellant averred that appellee refused to produce for examination all or any of his books, bills, invoices or other vouchers upon demand of appellant’s agent after the fire. To this plea appellee filed replications; first, denying that he refused to produce such books, etc.; second, that he informed said agent, at the time, that all such books, invoices, etc., had been destroyed by the fire that destroyed the property, and with full knowledge of notice of such fact said agent then and there informed the appellee that if he would produce duplicate bills of all goods purchased by him, at the date and since the date of issuing said policy, the appellant would settle the loss sustained by him as set forth in said declaration and that afterwards in compliance therewith appellee did produce all of such duplicate bills, as required by said agent, and notified the appellant thereof, prior to the institution of this suit, but that appellant declined and refused to examine the same; third, that all of said books of account, bills, invoices and other vouchers, etc., were, prior to the time of such demand, on September 7, 1904, each and all, without the fault of appellee, totally destroyed by fire, and for snob reason it was impossible for appellee to produce the same, etc., and fourth, that appellant, after being informed of such loss, refused to settle on another and distinct ground, i. e., on the ground of alleged forfeiture. On all of which replications issues were joined.

By its twelfth plea appellant denied that appellee was the owner of and had an interest amounting to the sole and unconditional ownership of the building, etc., described in the policy, on which plea issue was also joined.

The evidence tends to show the following facts: Appellee, at and prior to the time of the issuance of the policy in suit, was engaged in conducting a general store at Walkerville, Illinois, in a one and one-half story frame building, having no foundation, but which was temporarily placed on posts upon a lot not owned by appellee.

Shortly prior to January 18, 1904, appellee made application in writing to appellant company, a mutual fire insurance company organized under the laws of Illinois, for insurance on his building, fixtures and stock of merchandise, in the sum of $5,000. In accordance with said application, appellant issued to appellee the policy hereinafter described and upon which this suit is predicated. Upon September 7, 1904, at about two o ’clock in the morning,, the store building in question, together with its entire contents, was destroyed by fire originating from some cause unknown.

The evidence shows that the total value of the property destroyed which was covered by the policy was $6,100. Appellee afterward furnished proper proofs of loss to appellant -within the time provided by the terms of the policy. Immediately after the fire appellee notified appellant of its occurrence, and several days thereafter the adjuster of appellant arrived at Walkerville for the purpose of adjusting the loss. He demanded of appellee that he produce for inspection and examination his inventory of stock, together with Ms books of acount, showing the purchases and sales of said stock from the date of such inventory until the time of the fire. In response to such demand, appellee stated that all of his books of account and records, together with an inventory of stock which he had taken in July preceding the fire, had been destroyed in the fire. The adjuster then called his attention to the conditions of the policy requiring him to take an inventory and keep books of account, which were to be kept, during the hours when the store was closed, in an .iron safe or other place secure from fire, and inquired of him why he had not done so.' Appellee replied that he had no iron safe and that he did not know that he was required by the policy to have one. Appellee testified that he then asked the adjuster what he should do to get a settlement, and that the adjuster replied that if appellee would procure duplicate bills of the goods purchased by him, the company would settle with him, and that he and the adjuster then proceeded to examine the ruins and take the dimensions of the building destroyed. After considerable delay, appellee succeeded in securing the duplicate bills in question, and notified appellant, and requested it to pay the amount claimed by him to be due under the policy, and upon its refusal to do so he brought the present suit.

The blank application for msurance furnished by appellant, and upon which, when filled out and signed by appellee, the policy was issued, contained the question : “Do you keep merchandise and cash accounts?’’ to which appellee wrote the answer, “No.” The evidence further shows that the books of account and papers of appellee were kept by him in a wooden desk, and that although when he learned that the store was burning, he and his clerk made endeavors to save them, they were unable to do so.

It is first urged that the court erred in sustaining the demurrer to pleas numbered 2, 3, 4, 5, 6, 7, 8, 10, and 13. It will not be necessary to consider the question of the sufficiency of such pleas, for the reason that appellant did not elect to abide or stand by them, but on the contrary, when the demurrer was sustained, took leave to amend the same and failed to do so. If a pleading is held insufficient on demurrer, the pleader, if he would have the correctness of the judgment pronounced reviewed in a'superior court, must elect to abide by the same, but it is not requisite that he shall, orally or in writing, advise the court that he does so. But if he asks leave to amend the pleading, in order to obviate the defect pointed out by the demurrer, or asks leave to plead over, he thereby abandons his original pleading and does not abide or stand by it. Bennett v. Ins. Co., 203 Ill. 444; Hippach v. Makeever, 64 Ill. App. 126. We are of opinion that if appellant, after obtaining leave to amend the pleas, determined not to take advantage of the same, but to abide by the pleas, it should have advised the court of such intention, and that failure to so advise the court, or to amend the pleas, was, in effect, a total abandonment of the same. Proper practice manifestly requires that at all stages of the pleadings in a cause, full and accurate information of the status of the same should be afforded by the record, to the court and opposing counsel.

It is next contended that the court erred in overruling the motions of appellant interposed at the close of plaintiff’s evidence and again at the close of all the evidence to direct a verdict in its favor. It is manifest that the first motion was properly overruled. The proof of the execution and delivery of the policy, the destruction by fire of the property insured, and the furnishing of proper proofs of loss within the time prescribed by the policy, established a right of recovery subject to be defeated by proof of the averments of some one or more of the special pleas interposed by appellant, and in the absence of such proof, the second motion was also properly denied. The fifth plea, when construed most strongly against the pleader, amounts to a tender of issue that the books of account and inventory were left by appellee upon a wooden counter or desk with the fraudulent intent and purpose that the same would be destroyed in the event of a fire, and the jury were fully warranted, under the evidence, in finding in favor of appellee thereunder.

Moreover, we think that the statements and conduct of appellant’s adjuster, after being informed by appellee of his violation thereof, and the further fact that the policy was issued in the face of the statement by appellee in the application to the effect that he kept no books of account, constituted a complete waiver of the provisions of the so-called “iron safe clause.”

Appellant also failed to establish the averments of the amended ninth and twelfth pleas. The evidence discloses that the building was not a fixture, but was personal property, and that the sole and unconditional ownership and title to the same, as well as to the other personal property destroyed, was in appellee.

It is also contended that the court erred in admitting improper evidence on the part of appellee. Appellee was permitted to testify as to the amount of his annual inventory taken about July 15, 1904, the same having been destroyed in the fire; that between that date and that of the fire his purchases of goods equaled in value all sales during that period, and that he had $4,800 worth of merchandise on hand at the time of the fire, all of which was totally destroyed. He was corroborated in this respect by his clerk, who had assisted in taking the inventory, and who had continued in the employ of appellee until after the fire. It is insisted that it was error to allow any evidence whatever to go to the jury as to the value of the goods destroyed, in view of the fact that appellee had failed to preserve his books of account and inventory, in compliance with the terms of the policy, and for the further reason that no arbitration, as required by the policy, was had.

What has already been said will dispose of the former contention. The latter is equally untenable. Appellant having denied any liability whatever under the policy, any effort on the part of appellee to comply with the provisions as to arbitration would have been idle and was therefore unnecessary.

It is also urged that the court erred in admitting in evidence the duplicate bills of merchandise purchased by him after the inventory, being the same duplicate bills that he claims to have procured at the suggestion of the adjuster, and in permitting appellee, while testifying, to refresh his recollection therefrom. After refreshing his recollection, the witness stated that he was able to recollect and state the kind, quantity and cost of the goods, independently of the bills. Diamond Glue Co. v. Wietzychowski, 227 Ill. 344. Such testimony was therefore competent. While ordinarily the duplicate bills would not have been admissible, no proper foundation having been laid for their introduction, in view of appellee’s testimony as to the contents thereof, their admission in evidence could not have been harmful to appellee.

The first instruction was not prejudicial to appellant, as insisted by appellant. The assumption therein, that the books of account were destroyed, was one of the facts averred in appellant’s pleas.

The other objections urged, pertaining to the rulings of the court upon the instructions, are disposed of by the views heretofore expressed. We find no prejudicial error in the record and the judgment will be affirmed.

Affirmed.


text:
    George M. Kincaid, Executor, et al. v. George H. Moore et al.
    1. Wills—what legacies are specific. The general rule is that a specific legacy is a gift of a specific part of the testator’s estate, identified and distinguished from all things of the same kind, and can only he satisfied hy the delivery of that particular thing.
    2. Administeatiom" Act—section 70 construed. Where renunciation is made under a will, no abatement of the specific and general legacies should be made if there is enough estate to satisfy the distributive share of the party renouncing and the claims of such specific and general legacies. The abatement contemplated by the statute is in the first instance to be borne by the residuary legatees.
    Bill in chancery. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myees, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed in part and reversed in part and remanded.
    Opinion filed December 7, 1907.
    ' Statement by the Court. This is a hill in chancery for partition, to quiet title, and for other relief. The land involved consists of about 1,600 acres in McLean county and about 400 acres in DeWitt county, which was the property of Joseph G. Moore at the time of his death on. July 1, 1905. He left his widow, Sabina Moore, and his two brothers and a sister and certain nephews and nieces as his only heirs at law. By his last will and testament, George M. Kincaid was made executor and trustee, said will was duly admitted to probate in the County Court of DeWitt county, and the said executor duly qualified thereunder. The widow, Sabina Moore, duly filed her renunciation and thereupon became entitled to her statutory estate of homestead and to one-half of all the real and personal estate remaining after the debts were paid.
    The present bill was filed by George M. Kincaid as executor and trustee, and by the widow, Sabina Moore, praying for a partition of the lands belonging to the testator at the time of his death, and setting up that by reason of the widow’s renunciation it would be necessary for the court to equalize and adjust the various legacies and devises.
    The provisions of the will which bear upon the questions presented by this appeal are the following: The first paragraph directs that all of the just debts and funeral expenses of the testator be fully paid as hereinafter provided. The second bequeaths to the wife of the testator the use of the homestead property, except ten acres, for and during her natural life; an annuity of $2,000 per annum so long as she should live, with a provision that in certain contingency the same might be increased to $5,000; and also certain personal property. The third bequeaths the remainder of the personal property to Kincaid in trust, the proceeds to be applied to the payment of debts and funeral expenses. The fifth clause provides that all of the homestead property, consisting of about fifty acres in DeWitt county, should go to the school trustees, ten acres of which should be held for a site for a township high school at Santa Anna, and that the remainder should be sold and the proceeds used "in the building of said township high school. The sixth clause reads as follows:
    “I devise in trust for the purposes and upon the trusts hereinafter created and enumerated, to said George M. Kincaid, trustee, the following described lands situated in the county of DeWitt in the State of Illinois, to-wit: (describing certain lands). The devise of the above lands in this clause is upon the following trusts and conditions, to-wit: My said executor and trustee shall rent and collect the rents arising from said lands and apply the same towards the discharge of my indebtedness, and the payment of the specific legacies in this will mentioned (not, however, meaning hereby the legacies or annuities to be paid annually), the erection of the monument hereinafter mentioned, and the costs and expenses of the administration of my estate. After the payment of said debts, funeral expenses, specific legacies, and the expenses of said monument, and within a reasonable time thereafter, I direct that my said executor and trustee shall sell all of said lands, at either public or private sale, as to him may seem meet, and upon such terms as to him shall seem just and proper. * * *”
    It is then directed that out of the proceeds $2,000 shall be paid to the Library Association of Farmer City, Illinois, and that the residue of the proceeds shall be applied and paid towards the erection and furnishing of ' a township high school building at Farmer City, to be known and distinguished as the “Joseph Gf. and Sabina Moore Township High School,” and provides that the same should be erected under the supervision of Nelson Tull.
    The seventh devises about forty-seven acres of DeWitt county land and eighty acres of McLean county land to Kincaid in trust, to sell and convey the same and apply the proceeds on the $20,000 mortgage on a portion of the McLean county lands. The eighth makes provision for $1,000 to be paid annually to Martha A. Booth during her natural life, to be paid to her in consideration of and on condition that she remains with the testator’s wife and properly cares for her. during her lifetime. The ninth gives Joseph Denny an annuity of $500 per year during his natural life; and the tenth, the testator’s sister, Mrs. Hitt, an annuity of $1,000 per year during her natural life; the eleventh, Mrs. Wilson, a sister of the testator’s wife, a legacy of $500; the twelfth gives Nelson Tull, a friend of the testator, a legacy of $500; the thirteenth, foureenth, fifteenth and sixteenth give legacies of $500 each to four churches in Farmer City, Ill. The seventeenth directs that out of his personal estate there be purchased a monument, costing not to exceed the sum of $3,000, to be placed at his grave. The eighteenth directs that his personal estate is to be used for the payment of funeral expenses, the purchase of the mon- . ument, etc.; the nineteenth fixes the-terms of the trust upon which the trustee shall hold the McLean county lands, and directs the sale of the same upon the expiration of the trust. The twentieth makes it the duty of the executor and trustee to pay all taxes promptly and not to allow any land to be sold for taxes, and to anticipate and provide for the payment of all debts, permitting no bill to foreclose to be filed. The twenty-first authorizes the trustee, when necessary, to renew mortgages, or to make new mortgages on the McLean county land which he may deem necessary to raise any sums of money which he shall think necessary for the payment of debts, or such part thereof as the personal estate shall be insufficient to pay, and continues as follows:
    “It is hereby made the duty of said trustee to use the annual income from my said lands, except said homestead lands, for the purpose of paying all deficiency on my said mortgage and indebtedness, that remains after the application of my personal estate, and the proceeds of the lands directed herein to be sold for that purpose. It being my intention that all deficiency in the payment of my debts, and specific legacies, after the application of my property as hereinbefore directed, shall be finally paid from the income derived from said lands, excepting said homestead lands and the land directed to be sold for the purpose of paying the mortgage indebtedness. It is not my intention, however, to devote the rents of my lands in the county of DeWitt aforesaid towards the payment of the annuities provided for in this will.”
    The twenty-first paragraph further provides:
    “It is hereby made the duty of my said executor and trustee and his successor in trust, to rent said lands in the county of McLean aforesaid, making all leases in writing and for such time or times, not to .exceed twenty (20) years, as may be deemed most advantageous to my estate. Out of the net proceeds of the rents and profits, my said executor or trustee shall pay from time to time all my just debts and the legacies which my personal property is insufficient to pay, and the annuities herein created. It being my true intent and meaning that legacies and annuities herein provided for shall be paid out of the income of my said estate, and the power to renew mortgages or borrow money, by my executor or trustee, is for the sole purpose of enabling my executor, trustee and his successor in trust, to renew mortgages or borrow money for the purpose of paying my indebtedness, and such mortgages or debts so created by my said executor or trustee, are to be discharged out of the rents and profits of said lands in the County of McLean. All legacies and annuities are to be paid out of the income, rents and profits of said last named lands, when practicable, excepting that nothing herein contained shall prohibit my said executor or trustee from paying any specific legacy from my personalty after my debts are paid.”
    The twenty-second reads as follows:
    “Out of the rents and profits of said lands in the County of McLean, I direct that my said executor and trustee shall first pay the taxes, insurance and necessary repairs and expenses of said trust. He shall next pay to my wife Sabina Moore the sum of $2,000 annually as long as she shall live, as hereinbefore provided. The annuity to Phoebe K. Hitt shall next be paid amounting to $1,000 per annum; the annuity to Martha A. Booth of $1,000 as hereinbefore provided shall next be paid; the annuity to Joseph Denny of $500 shall then next be paid. After these payments are made annually, the residue.of the net income shall be applied to the payment of my debts as rapidly as the same can be paid from year to year until my entire indebtedness is fully paid. * * *”
    The twenty-third is as follows:
    “I further will and direct that after the payment of my debts, funeral expenses, costs and expenses of administration and other necessary expenses, that the net proceeds of the income of my lands in the said County of McLean, after paying the annuities herein-before enumerated in the preceding clause of this will, be paid by said trustee or his successor in trust, as follows, until the sale of said lands. * * *”
    The decree finds that under the terms of the will and by reason of the renunciation of the widow, the widow became the owner of one-half of all the lands in fee, after the payment of the debts; that Kincaid, as trustee, under the fourth and seventh clauses of the will, became vested with the legal title to one-half of all the lands in McLean county, and under the sixth and seventh clauses, to one-half of certain of the lands in DeWitt county; that under the fifth clause the trustees of schools became vested with the title to the remainder of the DeWitt county lands; that by reason of the widow’s renunciation, all of the annuities, except the annual compensation to Martha Booth, should be abated one-half, but that the annuity of $1,000 to said Martha Booth, being a provision for services to be rendered to the widow, should not be abated.
    The decree charges one-half of the indebtedness, exclusive of the costs and expenses of administration, to the widow and directs Kincaid as trustee of the DeWitt county lands to pay the remaining one-half thereof out of the rents and income from said lands, and to pay from the same source all specific money legacies other than annuities, the $3,000 provided for the erection of a monument, and the costs and expenses of administration. It is further decreed that the annuities to Mrs. Hitt and Joseph Denny, as abated, be paid from the income of the McLean county lands. From said decree Joseph Denny, George M. Kincaid, trustee, and the trustees of schools, appeal. No complaint is made of the decree, except insofar as it reduces the annuities of Denny and Mrs. Hitt, and charges the income from the DeWitt county lands with the payment of one-half of the indebtedness of the estate, with the payment of all the specific legacies other than annuities, and with the $3,000 provided for a monument, and with the costs and expenses of administration, instead of charging any portion thereof upon the income of the McLean county lands.
    Barry & Morrissey and Herrick & Herrick, for appellants.
    R. W. Mills, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

It is contended in behalf of Joseph Denny and Phoebe K. Hitt that the annuities to them respectively should not have been abated. That section 79 of the Administration Act is intended to apply only as between legatees of the same class; that said annuities, being specific legacies, should not be abated for the benefit of the residuary legatees. . Said section provides, in substance, that where a widow renounces all benefit under a will, and the legacies and bequests therein contained to other persons, shall in consequence thereof become diminished in amount, quantity or value, it shall be the duty of the court upon settlement of the estate to abate from such legacies and bequests in such manner as to equalize the loss sustained in corresponding ratio to the several amounts of such legacies and bequests according to the amount or intrinsic value of each. Rev. Stat. 1905, 118. In support of such contention, counsel rely chiefly upon the case of Lewis v. Sedgwick, 223 Ill. 213, where it is said: “® * * if the estate for any reason should turn out to be less than the testator anticipated, or if for any reason there is required an abatement as to any of the legacies, general legacies or residuary funds must first be abated before any abatement of the specific legacies could be required.' We are of opinion that the shares of * * * stock disposed of * * * are specific legacies. The residuary fund under the will may be classed as a general legacy. Section 79, for the equalizing of legacies, was passed in substantially the same form as at present, in 1845. It is to be presumed that the legislature had in mind the law requiring general legacies first to be abated before trenching upon the funds of the specific legatees. We do not believe it was their intention to make a different rule in the case of renunciation affecting legatees than in other cases where legacies were diminished or increased, but rather to apply the same rule. Such is the construction' we give to this statute.”

The court there defines “specific legacies” in the following language: “The general rule has always been that á specific legacy is a gift of a specific part of the testator’s estate, identified and distinguished from all things of the same kind, and can only be satisfied by the delivery of that particular thing.”

All pecuniary bequests not within the foregoing definition, and it is manifest that those here involved are not, are ordinarily termed general legacies, whether directed to be paid in gross or in installments at stated periods, and neither is entitled to priority over the others, in case an abatement is necessary, unless a different intention appears from the will itself. Williams on Executors, p. 1367; Emery v. Batchelder, 78 Me. 233; University Appeal, 97 Pa. St. 187; Wcerner on Adm., p. 452. But while the so-called specific legacies and the annuities here in question, stand upon the same footing as to propriety, we do not think it is contemplated by the statute that such general legacies should abate for the benefit of residuary legatees. Nor does the Lewis case, supra, so hold. It is undoubtedly true, as is there stated, that under the statute general or residuary legacies must abate for the benefit of specific legacies if necessary. That is to say, that when no residuum exists, the general legacies must abate for the benefit of specific legacies. We do not understand, however, that where there is ample estate to pay both specific and general legacies; the latter must abate for the benefit of residuary legatees. ¡Residuary legacies carry only that which is left after all express or prior dispositions of the testator have been satisfied ; hence residuary legatees can in no case call upon general or specific legatees to abate unless it is expressly so provided by the terms of the will. 2 Redf. on Wills, 451; Wcerner on Adm., 452.

We think the chancellor properly held that the land located in DeWitt county was alone chargeable with the payment of the money legacies other than the annuities, the fund provided for the erection of a monument, and the costs and expenses of administering the estate. While there are general expressions in other clauses of the will which seem contradictory thereto and inconsistent therewith, we are satisfied from a consideration of the entire will that the intention of the testator is expressed by the sixth clause, which, in effect, charges the same upon the DeWitt county lands alone. Moreover, in view of. the fact that all of the real estate is subject to be charged with the payment of the debts and costs and expenses of administration, in the event that it should become necessary to resort thereto, insofar as such debts and costs are concerned, the expressions contained in the clauses other than the sixth are not necessarily in conflict or inconsistent therewith.

In this particular the decree of the Circuit Court is affirmed. Insofar as it abates the annuities to Joseph Denny and Phoebe K. Hitt it is reversed. The cause is therefore remanded with directions to the Circuit Court to proceed in accordance with the views herein expressed.

Affirmed in part, reversed in part, and remanded with directions.


author: Per Curiam:

text:
    Trustees of Schools v. George H. Moore et al.
    This case is controlled by the decision in Kincaid et al. v. Moore et al., ante, p. 23.
    Bill in chancery. Appeal from the Circuit Court of McLean county; the Hon. Colostm D. Myers, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed December 7, 1907.
    Barry & Morrissey and Herrick & Herrick, for appellants.
    R. W. Mills, for appellees.
   Per Curiam:

This is an appeal from the decree involved and considered in Kincaid et al. v. Moore et al., ante, p. 23.

In accordance with the views there expressed and the conclusions reached, the decree is reversed in part, affirmed in part, and the cause remanded with directions.

Affirmed in part, reversed in part, and remanded with directions.


author: Per Curiam :

text:
    Joseph Denny v. George H. Moore et al.
    This case is controlled by the decision in Kincaid et al. v. Moore et al., ante, p. 23.
    Bill in chancery. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myebs, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed December 7, 1907.
    Barry & Morrissey and Herrick & Herrick, for appellants.
    R. W. Mills, for appellees.
   Per Curiam :

This is an appeal from the decree involved and considered in Kincaid et al. v. Moore et al., ante, p. 23.

In accordance with the views there expressed and the conclusions reached, the decree is reversed in part, affirmed in part, and the cause remanded with directions.

Affirmed in part, reversed in part, and remanded with directions.


text:
    Chicago, Wilmington & Vermilion Coal Company v. Eli Brooks.
    1. Master and servant—upon what latter may rely. A servant has a right to rely upon the presumption that his master has exercised reasonable care in furnishing appliances and in providing a proper and reasonably safe place for him to work.
    2. Master and servant—what will preclude recovery by latter. A servant is not to be permitted to recover if he knows of two ways of performing his work and ignores the safe and adopts the dangerous method.
    3. Negligence—when charge of, not answered by contention that particular construction complained of was an engineering problem. Held, that there was no merit in the contention that the switch stand complained of in this case fell within the rule that the manner of constructing a railroad is an engineering question and that a railroad company is not required to adopt any particular method of construction nor any particular contrivance or device in order to be in the exercise of ordinary care for the safety of its employes. .
    4. Evidence—when incompetent as introducing collateral issue. In an action for personal injuries, it is proper to refuse to admit evidence that no previous accident had occurred at the switch, the construction of which was complained of in the cause at issue.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1906.
    Affirmed.
    Opinion filed November 22, 1907.
    Patton & Patton, for appellant; George C. Mastin, of counsel.
    Shutt, Graham & Graham and James H. Murphy, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This appeal is prosecuted by the defendant to reverse a judgment in the sum of $5,000 entered against it by the Circuit Court in an action in case for the recovery of damages for personal injuries.

The declaration consisted of an original count and an additional count. The original count charges that the plaintiff was a driver in the employ of the defendant, in its coal mine; that it was the duty of the plaintiff, and he was directed by defendant, to place a car of coal on a track; that at such track was a switch lever and apparatus that was dangerously and improperly constructed; that while in the exercise of due care, the plaintiff was injured by reason of tho dangerous and improper construction thereof. The additional count is the same, except that it charges that the lever was so broken and out of repair that it was dangerous, and in consequence of such condition the plaintiff was injured.

At the close of all the evidence, a motion for a peremptory instruction was made by the defendant, on the ground that the evidence failed to show that' the plaintiff was directed to place the car on suefi track. The plaintiff then, by leave of court, amended both counts, by striking out the allegation as to a direction, leaving them with a simple allegation that it was the duty of appellee to place the car on such track. The defendant thereupon made a motion for a continuance, supported by affidavit, which was overruled upon the agreement by the plaintiff to admit a part of the matter set out in the affidavit. Exceptions were duly preserved. No further evidence was offered and the peremptory instruction was again asked and refused.

The evidence discloses the following facts: Appellant is the owner and operator of a coal mine at Thayer, Illinois. Appellee, who was forty-five years of age, had been in its employ for about five years prior to the date of the accident, part of the time as a coal digger, and the last three months as a night driver. As a night driver, it was his duty to move machines, clean up entry, and in general do such work as required the driving of a mule in the mine at night.

Shortly before he was injured, at about two o’clock in the morning, appellee and two other employes, by direction of the “night boss,” went to a point about 2,000 feet from the hoisting shaft and near where the right entry turned into the main shaft, to pick up and load some loose coal which was scattered in the main entry. They took with them an empty car, drawn by a mule in charge of appellee. Eunning through the main entry was a main track, upon which, at the junction with the third right entry, loaded cars were collected in trains and afterward hauled by an electric motor to the bottom of the hoisting shaft. At the junction of the main and third right entries was a side track, connected with the main track by a switch. After the cars were unloaded at the shaft, they were hauled in trains by the motor back into the mine, and, by a “flying switch,” thrown in upon the side track, which was known as the “empty” track. The switch was equipped with a lever whereby it could be thrown so as to connect or disconnect the “empty” track with the main track. The switch in question differed from ordinary railroad switches, in that instead of having parallel switch rails which would move back and forth in response to the movements of the lever, they were equipped with two inside rails, known as “bridle” rails, four feet in length, which moved on pivots. The lever of an ordinary switch is so constructed that when the switch points are set for one track, the lever lies flat on the ground, and to change the points to the other track the lever must be lifted, carried around a semi-circle and dropped on the ground upon the opposite side. The lever here in question was so constructed that when the switch points were set for the right-hand or empty track, it lay flat on the ground, pointing to the track, and in order to change the points so that the motor would go on the left hand or load track, it was only necessary to lift the lever and bring it to a vertical or perpendicular position, moving it through half of a semi-circle. To let the empty cars run in on the empty track, the operator simply pushed the lever down from its vertical position and, by its own weight and the force of the push, caused it to fall quickly down to its first position, opening the empty track. The boy who usually operated the switclj was provided with a board having a notch cut in one end and with which he fastened the lever in the vertical position when he left at night, so that the switch would be open for the load track, by propping the end of the board against the rail and wedging the lever back in the notch in the other end. When the boy left his post for the last time preceding the accident, he fastened the lever back with the device supplied for that purpose, and left the switch set and open for the load track. After appellee and his companions had loaded the car, appellee concluded to take the loaded car into the third right entry, place it on the load track and get another empty car from the empty track. When the switch was reached, appellee stopped his mule, went forward and attempted to adjust the switch so that the car would run on the load track, by raising the lever to a vertical position. He then started the mule, and walked beside it, on the empty track. The jarring of the rails caused the lever to fall, thus effecting a connection with the empty track. As the car reached the frog, appellee’s companions saw it was going on the empty instead of the load track, and immediately held back on the car and called out to appellee to warn him, but being hemmed in, he was unable to avoid the car as it approached, and as it came down the empty track, was caught between it and the end of an empty car standing west of the frog. His right leg was so crushed as to render it necessary to amputate it above the knee.

There was evidence tending to show that the unusual construction and mode of operating the switch were adopted in order that coal cars might be rapidly handled by the electric motor; that to make flying switches it was essential that the switch rails should be thrown in much less time than was possible by. the use of an ordinary switch. There is evidence tending, to show further that appellee never before had occasion to use or adjust the switch in question and had no knowledge of its peculiar construction and mode of operation, although he had seen one of a similar character in another part of the mine, upon which a hook was used to hold the lever in an upright position.

It is urged as grounds for reversal that the maintenance of the switch apparatus as designed and constructed was not negligence; that appellant owed no duty to appellee with respect to the switch, because appellee was not in a place where his duty required him to be when he went into the third.right entry; that appellee was guilty of contributory negligence in going into said entry and in his conduct when therein, and that the danger attending the use of the switch was an ordinary risk which he assumed by virtue of his employment. These questions of fact were, by instructions given at the request of counsel for appellant, all submitted to the jury for their determination, and there is ample evidence in the record to support the findings of the jury thereon adversely to appellant. There is evidence tending to show that the switch stand, as constructed, was an unsafe appliance, and out of repair; that the same rendered the place where appellee was injured an unsafe place to work, and further that appellee was unaware of the danger attendant upon the use of the same, and by the exercise of ordinary care and judgment could not have comprehended such danger.

It was obviously the duty of appellee to his employer to gather and remove the coal with reasonable diligence. If the jury believed from the evidence that appellee was reasonably warranted in the belief that, in order to remove the coal in the most expeditious and economical way, it was necessary to place the car upon the load track in the entry in question, and that the method followed by him in so doing would have been safe and proper under ordinary circumstances, they were warranted in finding that he was in the performance of a necessary duty at the time and place he was injured, although such course might not have been the only one open to him. If he was unaware of the dangerous condition and mode of operating the switch, he was manifestly not guilty of contributory negligence. He had the right to rely upon the presumption that appellant had exercised reasonable care in furnishing appliances and in providing a proper and reasonably safe place for him to work. If, in the absence of knowledge of the defective construction of the switch, he attempted to operate the same in the necessary and usual course of his employment, it cannot be said that he assumed the attendant risk.

Appellee was not directed to do the work in a specific manner, but was given a general order to perform the same and was left to exercise his own discretion. We agree with counsel for appellant that if ¡there were two ways equally open to him, one of which he knew or should have known to be dangerous and the other to be safe, he selected the unsafe method through heedlessness or because it involved less exertion or his part, he could not recover for injuries received thereby. The evidence, however, does not establish such state of facts and the rule is inapplicable.

There is no merit in the contention that the switch stand in question falls within the rule that the manner of constructing a railroad is an engineering question and that a railroad company is not required to adopt any particular method of construction nor any particular contrivance or device in order to be in the exercise of ordinary care for the safety of its employes. C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330; I. C. R. R. Co. v. Campbell, 170 Ill. 163. Such rule is not applicable to devices or structures of the character here in question. C. & A. Ry. Co. v. Howell, 109 App. 546; M. & O. R. R. Co. v. Vallowe, 115 App. 621.

It is contended by appellant that the amendment of the declaration substantially changed the character of the proof necessary to be produced by appellee and that it therefore had a right to have the cause continued so as to enable it to fully present its defense. We do not think that appellant was prejudiced by the refusal to grant the motion for a continuance. A number of the facts set up by the affidavit filed in support of the motion were admitted by appellee. Such of them as were not, were clearly in controversy under the issues formed by the original declaration.

The trial court properly refused to admit evidence ■that no previous accident had occurred at the switch. M. & O. R. R. Co. v. Vallowe, 214 Ill. 124; Hodges v. Bearse, 129 Ill. 87.

The evidence tending to show that the third right entry was a convenient place to take the coal was proper to be considered by the jury in determining whether or not appellee was engaged in the line of his duty when injured, and the court did not err in admitting the same.

The rulings of the trial court upon the instructions were not inharmonious with the foregoing views.

The judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Henry D. Laughlin v. Thomas Inman.
    1. Evidence—what does not tend to show condition of cattle at the time of delivery. A letter from a third party stating that cows delivered hy a carrier were in bad condition, is no evidence of such condition at such time, even though such letter was permitted to he read in evidence without objection.
    2. Verdict—when not disturbed as against the evidence. A verdict will not he set aside on review on the ground that it is against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1906.
    Affirmed.
    Opinion filed June 1, 1907.
    Rehearing denied November 26, 1907.
    W. L. Gross and William R. Moss, for appellant.
    E. D. McGowan and Patton & Patton, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellant against appellee. A trial by jury in the Circuit Court resulted in a judgment in favor of the plaintiff for $149.35. The plaintiff seeks to reverse the same upon the ground that the verdict and judgment áre inadequate.

The declaration consists of a special count and the common counts. By the special count it is averred that the plaintiff purchased two cows of the defendant and paid for them, and in consideration thereof, the defendant agreed to deliver them to the plaintiff at Chicago in good condition and to accompany them in person or send the same in charge of some careful and competent person, and assigns a breach of the contract that the defendant shipped said cows by rail without .an attendant and without taking proper care of them, whereby they were delivered to the plaintiff in Chicago in bad condition and almost ruined, and for a long time were ill and near to death, by reason of which they were depreciated in value and sold by the plaintiff at a loss “through the failure of the defendant to accompany said cattle to Chicago in person or send them in charge of some equally careful and competent person, and to deliver them to the plaintiff in good condition.”

By the common counts, the plaintiff seeks to recover for money had and received. The defendant filed the plea of general issue and a counter-claim for services claimed to have been rendered by him in superintending a dairy test of the product of “Brown Swiss” cows at the Buffalo Exposition, and expenses incurred by him in connection therewith.

At the close of all the evidence, the court instructed the jury that there was no evidence in the record tending to sustain the special count of the declaration.

The evidence tends to show that appellant purchased of appellee, at Hanover, Wisconsin, two thoroughbred Brown Swiss cattle for the sum of $550, to be delivered at Chicago, Illinois, in good condition, and that appellee agreed either to accompany said cattle to Chicago or send them in charge of some competent and careful person. That upon the arrival of the cows at Chicago, appellee’s agent, one Widmer, to whom they were consigned, immediately reshipped them to Rahway, New Jersey. It was attempted on the trial to show the condition of the cows after their arrival at Rahway. The court held that inasmuch as the place of delivery was Chicago, the burden was upon appellant to show that the injuries' complained of were received while they were in transit from Hanover to Chicago, and that proof of their condition at Rahway was not admissible upon the question of damages. The only evidence tending to show that the cows were injured while in transit from Hanover to Chicago, was the reading by appellee of a portion of a letter received by him from Widmer to the effect that the cows were in bad condition when they arrived at Rahway, which portion of the letter appellant claimed to have read to appellee. Notwithstanding no objection was interposed by appellee to the reading of the letter, it was nevertheless incompetent for the purpose of showing the condition of the cows. It was but an unsworn statement by Widmer, who was not called as a witness on the trial. The fact that it was communicated to appellee, cannot" be held to be an admission by him as to its truth. There being no competent evidence in the record as to the condition of the cows upon their arrival at Chicago, the instruction of the court was proper.

For this reason the court did not err in refusing to instruct the jury, upon the request of plaintiff, that circumstantial evidence was competent to show when and where, if at all, the cattle in question were injured, and that it was not required of plaintiff to make direct proof of the charge that they were injured in transit between Hanover and Chicago.

The evidence upon the issue as to whether appellant agreed to pay appellee $600 for his services as superintendent of the “dairy test” at Buffalo, was conflicting. Appellee testified that it was so agreed, while appellant testified to the contrary. The question involved the credibility of the respective parties and the weight to be given to their testimony, and was peculiarly and exclusively for the determination of the jury.

It is urged that the judgment should be reversed for the reason that while appellant’s counsel, in argument to the jury, asked for a verdict in his favor of $312.37, and appellee’s counsel, on the contrary, claimed $425.28 to be due appellee, the jury returned a verdict not in accordance with either claim. There was practically no controversy over the items of account between the parties, other than the claims for services. It is apparent that the jury, doubtless acting upon a letter in evidence from appellee to appellant dated June 19, 1903, in which appellee offered to accept $100 for his services, allowed him that sum. In view of the conflict in the evidence upon the question, we would not have felt warranted in disturbing the verdict, had the claim for services been fully allowed, or disallowed in toto.

While compromise verdicts are not, as a rule, to be approved, we are not prepared to say that the present verdict was so clearly against the evidence as to warrant us in disturbing the same.

The judgment of the Circuit Court is therefore affirmed.

Affirmed.


author: Mb. Justice Puterbaugh

text:
    M. A. Rogers & Co. v. Miles A. Leach.

      Vebdict—when not disturbed as against the evidence. A verdict will not he set aside on review on the ground that it is against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Habéis, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    S. L. Wallace, for appellants.
    Blinn & Covey, for appellee.
   Mb. Justice Puterbaugh

delivered the opinion of the court.

This cause was before this court on appeal at the November term, 1905, at which time a former judgment was reversed and the cause remanded. 127 Ill. App. 199. After remandment, it was again tried and a verdict returned in favor of the defendant for $40.21. Judgment was rendered thereon, from which the plaintiff again appeals. In our former opinion we held that the weight of the corn shipped by appellee to appellant was, under the contract, to be determined and certified to by persons whose acts in that regard were official within the uniform custom and trade usages then prevailing in the city of New Orleans, and that in the absence of proof of fraud, appellee would be bound thereby. We adhere to the views there expressed and now hold further that if upon the present trial it had been shown that all of the corn shipped by appellee had been in fact weighed by the persons whom the evidence shows assumed that duty, the weights certified by such persons would have constituted “New Orleans official weights” within the meaning. and intendment of the contract. The present record, however, fails to show that such was the fact. While it does appear that a portion, at least, of the corn in question was weighed and certified by the proper parties, there is no evidence showing that all the corn was actually weighed. The deposition of one McManness, taken at the instance of appellant, developed the fact that upon the arrival of the cars at New Orleans, the corn was taken therefrom in sacks by the men who unloaded the cars and then by them hauled to the scales some distance away, where the filled sacks were weighed by the witness and other weigh-masters, who then certified to the total weight of the corn received by them in sacks, but that such weigh-masters paid no attention to the unloading of the cars and were unable to state that all of the grain in the several cars was sacked, or whether, if sacked, all of the sacks were hauled to the scales and weighed. In the absence of such proof we are constrained to hold that appellee was not bound by the weights certified, which obviously included such corn only as was delivered to the weigh-masters.

The trial court therefore properly admitted evidence as to the weight of the corn at the place of its shipment, and its actual weight at New Orleans became a question for the determination of the jury from all of the facts and circumstances in evidence.

The evidence adduced by appellee upon that issue tends to show that the cars in which the grain was shipped were in good condition when loaded at Corn-land. It does not appear that upon the arrival of the same at New Orleans they were in other than good order. There is evidence tending to substantiate appellee’s claim as to the number of bushels of corn loaded in each of the cars in controversy, at Cornland. Acting upon this evidence, the jury were not unwarranted in returning the present verdict, and we will not disturb the judgment rendered thereon.

Affirmed.


text:
    Louis Smith v. John Slaughter.
    1. Seeyice by publication—when valid in action instituted "before justice. Held, that section 19 of the 'Justices and Constables Act, which requires that the return day of the summons shall be not more than fifteen days after the date of issuance, is repealed by implication insofar as it conflicts with the provision with respect to service by publication specifying when the first publication shall take place and providing for four weeks’ publication, with a statement in the notice of the time of the return of the summons.
    2. Appeal—what disposition of cause not essential to. The formal disposition of the cause as to all the defendants is not essential to a valid appeal by the unsucessful plaintiff.
    Action commenced before justice of the peace. Appeal from the County Court of Vermilion county; the Hon. Isaac A. Love, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    R. Allan Stephens, for appellant.
    John H. Lewman, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

By this action appellee Slaughter, a subcontractor, seeks to recover from appellant Smith, the owner, and Lee Rogers, the principal contractor, a personal judgment under section 28 of the “Mechanic’s Lien Act” for labor performed by him in the construction of a building upon the premises of Smith. There is evidence tending to show that Rogers contracted with Smith to do certain cement work in the construction of such building; that he sublet the excavating to Slaughter ; that Slaughter had partially completed the work when Rogers abandoned his contract; that Smith thereupon directed Slaughter to proceed with his work and promised to pay him therefor, and that he refused to do so. Slaughter thereupon brought suit against Smith before a justice of the peace, for the amount he claimed to be due him.

The abstract of the record so far as the proceedings before the justice of the peace is concerned, is so meager as to constitute but a skeleton index to the record. We are able, nevertheless, to infer therefrom that on August 8,1906, Slaughter filed an affidavit that Rogers was a non-resident of this state, whereupon the justice of the peace ordered that thirty days’ notice by publication be given and issued an alias summons returnable September 13th. Upon that day the alias summons was served upon Smith and “not found” as to Rogers as to whom due publication was then proved. Afterward upon the application of Smith a change of venue was taken to another justice before whom a trial was had which resulted in a judgment against Slaughter and in favor of Smith for costs. Slaughter then appealed from said judgment to the County Court, where a trial by jury resulted in a judgment in favor of Slaughter and against Smith for $65.27, that the liability of Smith to Rogers amounted to $130, and that the lien attached thereto on May 19th. Smith thereupon appealed to this court.

It is contended by appellant that inasmuch as the notice published recited that a summons had been issued August 8th, returnable September 12th, being more than fifteen days after the date of the summons, both the alias summons and the notice based thereon were void and that neither of the justices nor the County Court had jurisdiction.

Section 19 of the Justices and Constables Act provides that the summons “shall specify a certain day not less than five nor more than fifteen days from the date thereof, at which time and place the defendant is to appear.”

Section 28, paragraph 42, of the Mechanic’s Lien Act reads, in part, as follows: “If any moneys due the subcontractor be not paid within ten days after his notice is served * * * then such person * * * may sue the owner and contractor jointly for the amount due Mm in any court having jurisdiction of the amount claimed to he due, and a personal judgment may be rendered therein, as in other cases * * #. All suits and actions by subcontractors shall be against both contractor and owner jointly, and no decree or judgment shall be rendered therein until both are duly brought before the court by process or publication, and in all courts including actions before a justice of the peace * * * such process may be served and publication made as to all persons, except the owners, as in suits in chancery.” Rev. Stat. 1905, 1376.

The statute relative to service by publication in suits in chancery provides that publication of notice shall be made for four successive weeks, the first publication to be at least tMrty days prior to the first day of the term of court, and further that the publication notice shall contain the time and place of the return of summons in the case. Rev. Stat. 1905, p. 1413.

So far as section 19 of the Justices and Constables Act thus conflicts with section 27, above quoted, it must be regarded as repealed by implication and hence inapplicable in suits under the latter section where service by publication is essential. If it were otherwise no judgments could be obtained in suits instituted before justices of the peace under the. provisions of section 28 in cases of the present character and the statute would to tMs extent be inoperative and ineffective. The justice had jurisdiction of both Smith and Rogers, an¿ no additional service or notice was essential upon the appeal to the County Court. The defendants were bound to follow the appeal. Ficklin v. Olmstead, 72 Ill. App. 334. Mor did the fact that the justice rendered no formal judgment as to Rogers affect the question of the jurisdiction of the latter court. The statute does not require a formal default and judgment to be entered in a justice’s court or upon appeal therefrom. The judgment in favor of Smith alone was sufficient to determine the case and authorize an appeal by Slaughter.

We find no error in the rulings of the court upon the admissibility of evidence which would have affected the verdict. We are not called upon to pass upon the instructions for the reason that appellant has failed to incorporate in the abstract all of those offered. Chapman v. Chapman, 129 Ill. 386. The evidence was ample to justify both the verdict of the jury and the finding and judgment of the court.

The judgment will therefore be affirmed.

Affirmed.


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    Seaborn Haines v. The People of the State of Illinois.
    1. Res gestae—what part of. All statements or declarations made either by the defendant or by those standing by, referring to the commission of a crime, made contemporaneously with or immediately before the commission of such crime and in any way connected with or explanatory of such crime, are admissible as a part of the res gestae.

    2. Assault and battery—what evidence not competent in defense against charge of. Where the defense to a prosecution for assault and battery is self-defense, it is not proper to permit the defendant to answer the question as to whether he did any more than was necessary in defense of his person.
    Assault and battery. Error to the County Court of Pulton county; the Hon. W. S. Edwards, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    M. P. Rice, for plaintiff in error.
    W. S. Jewell, for defendant in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Plaintiff in error was tried in the County Court under an indictment for assault and battery. A verdict of guilty was returned, judgment of conviction rendered thereon, and a fine of $50 imposed.' It is urged as grounds for reversal that the verdict was contrary to the evidence, and that the trial court erred in its ruling as'to the admissibility of certain evidence, and in its instructions to the jury.

The evidence shows that plaintiff in error, one 0 ’Hern, and one Zoll, all buyers and shippers of stock at Vermont, Illinois, were on December 5, 1905, engaged in loading their respective hogs upon the cars for shipment. While 0 ’Hern was helping Zoll to load the latter’s hogs, an altercation arose between plaintiff in error and 0 ’Hern, at the conclusion of which plaintiff in error assaulted 0 ’Hern with a cane and seriously injured him. The evidence adduced by plaintiff in error tends to show- that in making the assault he was acting in defense of his person. The jury, however, by their verdict, found otherwise, and there being ample evidence to support such finding, we are not disposed to disturb the same.

It is urged that it was error to permit O’Hern to testify to what was said by Zoll to him in the presence and hearing of plaintiff in error, immediately prior to the assault, and almost contemporaneously therewith. The statements in question were so closely connected in time with the offense as to be clearly a part of the res gestae, notwithstanding they were made by a third party.

Oral statements or declarations made either by the defendant, or by those standing by, referring to the commission of a crime, made contemporaneously with or immediately before the commission of such crime, and in any way connected with or explanatory of such crime, are admissible as a part of the res gestae. Underhill on Crim. Ev., p. 124.

The court therefore did not err in admitting the same in evidence.

The conversation between plaintiff in error and Warren Haines prior to the difficulty and out of the presence of O’Hern, did not fall within the foregoing rule, and was therefore properly excluded. Neither was it error to refuse to permit plaintiff in error to answer the question as to whether he did any more than was necessary in defense of his person. The question was one for the determination of the jury from all the surrounding facts and circumstances in evidence, and the conclusion of plaintiff in error upon the subject was manifestly incompetent and immaterial.

We have carefully examined both the given and refused instructions and fully considered the objections urged by counsel for plaintiff in error thereto. We think that, when read together, the given instructions fully and fairly advised the jury as to the law applicable to the facts involved, and that plaintiff in error was not materially prejudiced by the rulings of the - trial court thereon.

The judgment was warranted by the law and the evidence, and will be affirmed.

Affirmed.


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    A. W. Lux, Administrator, v. S. P. Drake et al.
    This case is controlled by the decision in Drake v. Lux, 125 Ill. App. 469.
    Contested claim, in court of probate. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochean, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1908.
    E. J. Miller, for appellants.
    Harbaugh & Thompson, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This controversy, which is before this court for a second time, involves two claims against the estate of appellant’s intestate, the nature of which fully appears from the opinion of this court in Drake v. Lux, 125 December 7, 1907. App. 469. The material facts are there fully recited, rendering a further rehearsal unnecessary. After remandment of the consolidated causes, a second trial was had before the court', without a jury, which resulted in a judgment for $1,421 upon the claim predicated upon the $800 note, and in favor of the estate upon the claim based upon the other notes. The evidence upon both trials was substantially the same, and is practically uncontroverted.

Upon the former appeal we held that inasmuch as upon the day the note here involved was given there was due from Brown & Co., to appellees as principal, a sum largely in excess of $800; the credit arising from such note could well have been applied upon such principal and in the absence of specific directions by the debtor as to the application of said payment, it would be presumed to have been applied upon such part of the indebtedness as was legal and collectible, and that the claim based upon the $800 note should have been allowed.

The rulings of the trial judge as to the law and his findings thereunder were in accordance with our former opinion and the judgment will therefore be affirmed.

Affirmed.


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    Michael Ryan v. Patrick Allen.

      Assumpsit—when does not lie to recover money paid under void contract. A contract by which the owner of property adjoining a street demises the use of a portion of such adjoining street, is contrary to public policy and void, even though the lessor and lessee at the time of making the lease believed it to be valid. Money paid under such a contract, whether for an expired or unexpired portion of the term created, cannot be recovered back— the law will leave the parties where they have placed themselves.

      Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed December 7, 1907.
    George W. Kenney, for appellant.
    John W. Sheehan and Shutt, Graham & Graham, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by Michael Ryan against Patrick Allen, for the recovery of money alleged to have been paid by the plaintiff to the defendant without any consideration therefor. The declaration consists of one count, to which the court sustained a general demurrer. The plaintiff elected to abide by his declaration, whereupon the court entered judgment in bar of the action. The sole question presented for review is as to the legal sufficiency of the declaration.

The declaration first alleges, in substance, the existence of an ordinance of the city of Springfield which provides that whoever shall place or set upon any sidewalk in said city, any goods, wares or merchandise, except within three feet of the outer edge of said sidewalk, or shall place or erect any show-case or other fixtures projecting into or hanging over any sidewalk exceeding said three feet, or shall encumber or obstruct more than said three feet of the outer edge of said sidewalk with any goods or merchandise, shall be subject to certain penalties; and further, that all fish, fruit, groceries, teas, coffees or vegetables displayed upon any sidewalk shall be placed upon tables or benches not more than two feet in height nor more than three feet in width. The declaration then avers that prior to July, 1906, the plaintiff conducted upon certain premises facing Seventh street in said city, an eating-house and lunch-counter; that in the vicinity thereof the defendant carried on a saloon, in a building owned by him, on the corner of Seventh and Washington streets; that during March, 1902, the defendant told the plaintiff that he, said Allen, had several opportunities to lease, for the purpose of erecting and maintaining thereon a lunch stand, the three feet of the outer edge of the sidewalk alongside of said saloon building and to sell the privilege of the use of the same, and that if plaintiff did not accept a lease thereof or purchase the privilege of the use thereof from him, he would cause to be erected and maintained a lunch-stand thereon or lease or sell the privilege of the use of the same for such purpose, and thereby injure and ruin the business of the plaintiff; that by reason of said threats of the defendant and the fear that he would carry out the same, the plaintiff, during the month of March, 1902, entered into a certain supposed agreement with defendant, whereby the plaintiff, in consideration of $6 to be paid by him each month to the defendant, was to have the right and privilege to erect and maintain a lunch-stand on the above mentioned three feet of the outer edge of the sidewalk adjoining said saloon building, during the occupancy of the same by the defendant, and that the consideration for said supposed agreement should, after April, 1905, be $75 per year; that, acting under the threats and fears aforesaid, the plaintiff paid to said defendant said consideration of $6 per month, from May 1, 1902, until April 1, 1905, and said annual consideration of $75 during April, 1905, and 1906, respectively; that during April, 1902, the plaintiff, acting under the threats and fear aforesaid, erected, at a cost of, to-wit, $75, on the three feet of the outer edge of said sidewalk, a lunch-stand, and thereafter maintained the same. That by reason of the facts hereinabove alleged, the defendant became indebted to plaintiff, in the sum of, to-wit, $1,000, etc.

It is obvious from the averments of the declaration that the contract between the parties was in effect an agreement on the part of appellee to permit appellant to occupy the portion of the public sidewalk which adjoined appellee’s property, in consideration of the payment by appellant of stipulated sums of money, and that both parties believed that the ordinance set out in the declaration gave appellee authority to occupy or let out three feet of the sidewalk in question. It is unlawful for a private individual to appropriate to his own exclusive use a portion of a public street or sidewalk. It is also the law that a municipality has no power to devote a public street or sidewalk, or any part thereof, to a mere private use. If, therefore, the ordinance set out in the declaration can be said to authorize the use of the portions of sidewalks not included within the prohibitions of the ordinance, such attempted authorization is manifestly ultra vires. We do not think, however, that such ordinance can be properly said either expressly or impliedly to authorize the use by a private person of any part of the sidewalks of the city. The most that can be said is that the occupancy of any portion of the sidewalk not included within the terms of the ordinance would not subject the trespasser to the penalties therein prescribed.

It follows that the lunch stand erected and maintained by appellant was a permanent encroachment upon a public sidewalk for a private use and in law a nuisance. Snyder v. City, 176 Ill. 397. Both appellant and appellee are conclusively presumed to know that such is the law and that the contract between them was in consequence contrary to public policy, illegal and void.

Pursuant to such contract, appellant, advised, encouraged, assisted and abetted by appellee, wrongfully took possession of a portion of the sidewalk and paid the money in question to appellee, who had no possible right to demand, receive or retain the same. The parties were therefore equally guilty of the same violation of the law. In such case courts of law, as well as equity, in the best interest of public policy, will refuse to aid either party, but will leave them without remedy against each other. Bishop v. Am. Pres. Co., 157 Ill. 284; Shortall v. Fitzsimmons, 93 Ill App. 231.

It is insisted by appellant that inasmuch as the contract was in part executory, appellant should be entitled to recover, at least the portion of the illegal rent which was unearned at the time of the abandonment and repudiation of the contract by him. Such is not the law.

It is well settled that courts will have nothing to do with the distribution of money paid, or property transferred, in pursuance of an illegal agreement, but will leave to parties where it finds them. Greenhood Pub. Policy, 7; R. Co. v. Mathers, 104 Ill. 259; Shaffner v. Pinchback, 133 Ill. 410; Kirkpatrick v. Clark, 132 Ill. 350; Smart v. Cason,. 50 Ill. 198; Shortall v. Fitzsimmons, supra; Miller v. Marckle, 21 Ill. 154. Such rule is manifestly consonant with public policy.

The general demurrer to the declaration was properly sustained and the judgment will be affirmed.

Affirmed.