text:
    P. J. Harsh, Complainant, Defendant in Error, v. A. W. Sutton et al., Plaintiffs in Error. Irene McDavid and Albin B. McDavid, Defendants in Error.
    1. Mortgages—when there is no merger. Where complainant, the owner of certain lots, executes a bond agreeing to convey them to the vendees upon the payment of two hundred dollars within two years and the vendees assign the bond to third parties who give their note secured by a mortgage on the premises and the note and mortgage are assigned to complainant, the mortgage does not merge with the title held by complainant and he is entitled to foreclose the mortgage against an assignee of the bond to whom title is conveyed by the master under a decree for specific performance.
    2. Mortgages—when decree for specific performance is not res adjudicata in action to foreclose. Where complainant, the owner of certain lots, executes a bond agreeing to convey them to the vendees upon the payment of two hundred dollars within two years, the vendees assign the bond to third parties who give their note secured by a mortgage on the premises, and the note and mortgage are assigned to complainant, a decree for specific performance, obtained by the holder of the bond after complainant’s refusal to convey is not res adjudicata in an action by complainant to foreclose the mortgage, there being no pleadings sufficient to raise the question of res adjudicata.

    3. Equity—when decree is res adjudicata. Where the parties are the same in two proceedings in equity, whatever might properly have been litigated and whatever was litigated in the pleadings or under the facts as disclosed in the first adjudication is res adjudicata.

    4. Mortgages—when sufficient. Where a mortgage describes the mortgagors, the mortgagee, the note to be secured, the premises mortgaged and the consideration for which the note is given, it is sufficient
    5. Mortgages—equitable interest. Where the owner of lots executes a bond agreeing to convey them to vendees upon, the payment of two hundred dollars within two years, an assignee of the bond has an equitable interest which he has a right to mortgage, and the mortgage being recorded, one who purchases the lots takes subject thereto.
    Error to the Circuit Court of Moultrie county; the Hon. William G. Cochran, Judge, presiding. Heard in this, court at the April term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.

      E. J. Mdlleb, for plaintiff in error.
    Jack, Deck & Whitfield, for defendants in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

On the 7th day of May, 1891, A. B. McDavid was the owner of lots 3, 4, 5 and 6, block 5, town of Alenville, Moultrie county, state of Illinois, and on that date he executed a bond to Nora A. Glover and Frank Glover in and by which he agreed upon the payment of $200 within two years thereafter, to convey to Frank Glover and Nora Glover the premises. Afterwards, on the 13th of June, 1893, the time of payment was extended two years.

On the 2nd day of February, 1895, Frank Glover assigned this bond to A. W. Sutton and Joseph Sutton, and on that date they executed to him their promissory note .for $210.50, due three years after date, with interest at seven per cent, from date; this note was secured by a mortgage of that date upon these premises, this mortgage recited on its face that it was "given to secure the purchase money of these premises. The mortgage was duly recorded in book 34, page 581 of the records of Moultrie county.

After A. W. Sutton and Joseph Sutton received the assignment of this'bond from Frank Glover and before the expiration of the extended time for payment thereunder, they assigned the bond to Frank Sutton. After obtaining the bond executed by McDavid, Frank Sutton attempted to complete the purchase of the premises by paying him the balance due on this bond according to "its terms. McDavid refused to accept the amount tendered or to convey the premises. A bill for specific performance was filed by Frank Sutton to compel the- conveyance. A final decree was entered in this proceeding in the circuit court of Moultrie county on the 26th of January, 1901, directing that McDavid make the conveyance, upon the payment of the amount to him, in accordance with the terms of the bond, and upon default, upon his failure to make the deed and upon his failure to receive the said amount, the amount should be deposited with the clerk of the circuit court, and the master in chancery should execute the conveyance.

On the 30th of November, 1901, the master in chancery executed the conveyance in accordance with the terms of the decree, this decree directed that the master in chancery should convey all interest that A. B. McDavid had in said premises at the date of the execution of his bond. An appeal was prosecuted from the decree entered therein to the Supreme Court where it was affirmed. David v. Sutton, 205 Ill. 544.

After the action for specific performance was commenced, and before its final termination in the Supreme Court, on February 2, 1898, the note given to Frank Clover by A. W. Sutton and Joseph Sutton, and secured by mortgage, was assigned by Frank Glover to A. B. McDavid. After the termination of the action for specific performance, A. B. McDavid signed this note to P. J. Harsh, complainant in this case. After the termination of the specific performance, action and prior to the filing of the bill to foreclose this mortgage, the premises were purchased by and conveyed to John B. Martin and L. C. Fleming. To the September term, 3905, P. J. Harsh, last assignee of said note and comp'lainant herein, filed his bill to foreclose the mortgage securing this note. He obtained a decree against A. W. Sutton and Joseph Sutton for the payment of the amount of the note, and the court decreed that in default of payment, the premises should be sold to satisfy the indebtedness. This writ of error is prosecuted by A. W. Sutton and Joseph Sutton, John B. Martin and L. C. Fleming.

As reasons for the reversal of this decree it is insisted by them, first, that in the proceeding for specific performance that by reason of the final determination of the suit for specific performance in which McDavid was required to convey these premises and because the record discloses that he during the time of the pendency of that proceeding was the owner of this note, the mortgage became merged in the title which he then held; second, that he being a party to that proceeding and at that time being the owner of the note, the title being in him, and the mortgage covering the same premises which he was required to convey, by that proceeding that the result of that action should be held to be res adjudicata; third, that A. W. Sutton and Joseph Sutton in their answer deny that Harsh is the owner or rightful holder of this note; fourth, that the paper which it is attempted to foreclose is not sufficient to constitute it a mortage; fifth, for the reason that at the time of the execution of the purported mortgage by A. W. Sutton and Joseph Sutton, they did not have the title to or in said premises.

Upon the first contention that there was a merger of the mortgage with the title then held by McDavid, we cannot agree. While at the time McDavid executed the original bond in question he contracted thereby to convey the title which he held at that time and upon payment of the amount due under that bond, so far as McDavid was concerned, the holder of the bond was entitled to receive whatever title McDavid had at that time, upon payment of the amount due on that bond, and the title to the grantee under and by virtue of the specific performance proceeding related back to the date of the bond; and upon the conveyance from the master in chancery to Frank Sutton the grantee in that deed only obtained the title to said premises that McDavid had at the date of the execution of his bond. The contention that the mortgage when obtained by McDavid merged in the title held by him cannot be acceded to for the reason that the bond which he executed only contracted or covenanted to convey the title which he held at the date of the execution of the bond. If this mortgage had been a lien upon the premises prior to the time of the execution of his bond, then the rule of merger would have applied, as it would have been necessary to have had this mortgage released in order to comply with the conditions of his bond. But the lien of this mortgage attached to and became a lien on these premises after the execution of his bond; and we do not understand the rule to be where an interest or lien is created or arises after the time at which the title is to become fixed, although obtained by a party who is required to convey the title as it was at that time becomes merged with that title. The contract executed by McDavid did not require him to convey title free of encumbrance of the date of the execution of the deed, whenever that might have been, but, as provided by the decree in the specific performance proceeding and as determined in that proceeding, he was only required to convey the title which he held at the date of the bond, and that is all the decree authorized and all that the Master’s deed conveyed, and we are of the opinion that the purchase of this note by him did not merge the mortgage with the title he then held. The mortgage was not made to him and was not assigned to him of record.

Upon the contention that the specific performance is res adjudicata of this action, we find no plea setting forth the facts which constitute a defense of res adjudicata. While the rule is, as contended by plaintiff in error, that whatever might have been litigated and whatever was litigated in the pleadings or under the facts as disclosed in the first adjudication, where the parties to that proceeding are the same, if properly pleaded, will be res adjudicata, and it is not necessary that there should have been an actual hearing or determination upon the question, but if it was such a proceeding any matter that could there have been properly litigated although there was a failure to do so, the rule of res adjudicata will still apply, but the only attempt we find in this record to present the question of res adjudicata is in the answer of appellants that McDavid should have been required to litigate this proceeding in the action for specific performance. This allegation in the answer is a mere conclusion, and is not sufficient to present the question of res adjudieata.

Upon the contention that the complainant herein is not the owner of this note there is no evidence whatever. The record does not show that he was not the assignee before maturity, but it does show an assignment to him, which is all that is necessary to maintain the action when no contra evidence is offered.

Upon the contention that the paper executed is not a mortgage, we find upon examination thereof that while it is awkwardly drawn, it contains all of the elements necessary to constitute a mortgage; it describes the mortgagors, the mortgagee, the note to be secured, the premises mortgaged and the consideration for which the note is given; this is all that is required of a mortgage.

Upon the contention that A. W. Sutton and Joseph Sutton had no title at the time they executed the mortgage in question, Frank Gflover, who was the original owner of this bond assigned the bond prior to the date of this mortgage to A. W. Sutton and Joseph Sutton, they thereby became the equitable owners of these premises subject to the payment of the amount due McDavid for the balance of the purchase money due him, and the mortgage which they gave at that time became a lien and attached to their equitable interest, whatever it may have been, and if thereafter they had obtained the title from McDavid by the payment of the amount due McDavid and obtained a deed therefor, their mortgage contained the words mortgage and warrant would have attached to and become a lien on the title which they then acquired, and Frank Sutton who obtained the bond by assignment from them after this mortgage was placed upon record could obtain no greater rights in the premises than they had at the time that it was assigned to him. And by completing the payment of the amount due on the McDavid bond he obtained his title through the specific performance proceeding from McDavid, subject to the mortgage executed by A. W. Sutton and Joseph Sutton; and the contention that A. W. Sutton and Joseph Sutton had no interest in the premises which could be made subject to a mortage at the time they executed this note and mortgage, is not tenable.

The original bond having been executed in 1891 and the payment not having been completed under the terms thereof, and the bond having been assigned, and about four years having elapsed before the resale of the premises by A. W. Sutton and Joseph Sutton to Frank Sutton, and the note and mortgage having been executed by them having been for the purchase money, it is only reasonable to presume that this property had advanced in price and that to secure the assignment to them of the McDavid bond to Frank Glover they were required to make additional payments, and it was for the purpose of repaying them that this note and mortgage was executed, and they having an equitable interest at that time had the right to mortgage their interest.

To permit the assignee of the original bond to secure these premises with this lien of record thereon merely by paying the amount due on the original bond would be inequitable and unjust. The record discloses that the present owners of the premises purchased the same with this mortgage on record and they were required to take notice thereof, and cannot be heard to say that they did not know this mortgage was not paid, the title they took was subject to it, it was their duty to ascertain the rights of the parties therein.

There was nothing of record to show that McDavid ever owned the mortgage, and there being no evidence that Harsh is not the innocent holder of this note, and nothing of record to advise him that the doctrine of res adjudicaba could be applied to the specific performance proceeding, the court properly held that this mortgage was subject to foreclosure, and its decree will be affirmed.

Affirmed,.


source: Caselaw Access Project

author: Mr. Justice Philbrick

license: Public Domain

text:
    Trustees of Old School Presbyterian Church of Kansas, Illinois, Appellees, v. The Estate of James Paxton, deceased, Appellant.
    1. Administration of estates—claims. Where a claim against the estate of a decedent for a subscription made toward building a church, is filed within a year in the name of the church, an amendment is properly allowed after a year changing the claimant to the board of trustees of the church.
    2. Religious societies—what is not necessary to establish claim, against estate of deceased. Where a claim is filed against the estate of decedent for a subscription made toward building a church, it is not necessary that the records of the church show every step necessary to bind it in its contracts, nor that the architect was licensed.
    3. Subscriptions—right to recover on. Where a claim is filed against the estate of a decedent for a subscription made toward building a church, evidence that the church was not built on the location decedent expected is properly excluded where there was no such condition attached to the subscription.
    4. Administration of estates—claims. An objection that a claim is filed against the executor instead of against the estate will not be considered when raised for the first time in the court of review.
    Appeal from the Circuit Court of Edgar county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    H. S. Tanner and Frank T. O’Hair, for appellant.
    Steward W. Kincaid and Shepherd & Trogdon, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

During his lifetime, James Paxton signed the following paper which constituted a part of the subscriptions raised for the purpose of building a Presbyterian Church at Kansas, Illinois, viz;

“For the purpose of building a new Presbyterian Church in Kansas, Illinois, I agree to pay to the Treasurer of the Building Committee, One Thousand Dollars.
This is conditioned as follows:
If you raise $10,000.00, and 10 per cent for the additional amount up to $15,000.00, and 10 per cent for the additional amount up to $15,000.00.
1. The church will cost about $15,000.00.
2. It will be begun during the year 1909.
3. Subscriptions may be paid one-third when the work begins, one-third when the building is enclosed, one-third when the church is completed.
Signed, Jas. Paxtoh.”

This subscription was made in November, 1908. Arrangements for the building of the church were commenced in the early part of 1909. On March 21, the congregation of the church determined to purchase a lot known as the Birch lot in Kansas, and instructed the committee to purchase this lot, and also instructed the committee to proceed with preparations for the building of the church. The lot was purchased March 22, 1909; on March 22, plans were adopted for the construction of the church. On April 5, 1909, James Paxton attempted to withdraw his subscription made for the building of the church, by letter of that date. In October, 1909, Paxton refused to pay his subscription. The church was builded and dedicated November 28, 1909, and was finished December 1, 1909, at a cost of more than $16,000.00. James Paxton died March 12, 1910. The subscription executed by him was probated against his estate, the claim was finally heard in the circuit court of Edgar county, where judgment was entered against the estate for the amount of the subscription; from that judgment this appeal is prosecuted.

Appellant asks that this judgment be reversed, first, because the claim was not properly filed against the estate within one year after date of the granting of letters of administration; second, that there was no authority given by the Board of Trustees of the Presbyterian Church to build a church; third, because no person was authorized to make any valid contract or obligation against the church; fourth, because the architect employed to prepare the plans had no license; and fifth, because there is no sufficient showing that the congregation ever authorized the construction of a church.

Upon the contention that no legal claim was properly filed against the estate, we find that the claim was originally filed in the name of the Presbyterian church of Kansas against the estate of James Paxton, this claim was filed within the year required by statute, and after the year had expired the claim was amended so that the claimant was made to appear as The Trustees of the Old School Presbyterian Church, this amendment was made by leave of the court. The Presbyterian Church is a religious organization, and under the statute where a body is organized for religious worship its property and funds are controlled by a board of trustees, and the record shows a sufficient organization of this society and the proper exercise and control of its property by the trustees, and as such it had power to sue and be sued. The amendment of the claim by naming the Board of Trustees of the Old School Presbyterian Church as claimant was legal and "proper and the court rightfully permitted this amendment; it was not the commencement of a new action or the' filing of a new claim, the cause of action remained the same and the only difference that the amendment could have made was to show the proper name of the party proper, to maintain the action..

Upon the contention that there was no authority given the board of trustees to proceed with the building of a church and to raise subscriptions therefor, we find in this record evidence, which is not contradicted, that the congregation, of this church determined at one of its meetings to build a new church, and authorized proper action to be taken therefor. While this is not given as a written record of the church, it is testified to as the action taken according to the best judgment of persons who were present at this meeting, and for the purpose of this action we do not deem that it was necessary that every step would have been taken which would legally have bound the corporation to have builded a church. The greater portion of appellant’s argument is based upon the theory that the records of the church do not show every step which would be necessary to hold the congregation bound by some contract which they may have entered into; this proceeding is not of that character, and it is immaterial whether every step which would be necessary to legally bind the church by any contract which it might make was taken or not. Sufficient is shown in the record to authorize the appointment of the building committee which was done, to authorize the selection of an architect to prepare plans, and to purchase a lot upon which to construct the church. The fact that the architect who prepared the plans could not under the statute recover a fee for his services in preparing the plans could not in any manner affect the subscription made by James Paxton in his lifetime.

Upon the contention that no person was authorized to make any valid contract and bind the church thereby, it is immaterial in this action. Conceding that no one was authorized at the time the contracts were made to enter into a binding contract, no one but the congregation or the church itself could be in any manner. affected or take advantage of a failure to comply with all the necessary steps; the church might waive any irregularity and proceed with its contract and complete it, as it did in this case, and having done so the subscription made by Paxton could not in any way be affected thereby.

It is also insisted by appellant that the court erred in refusing to permit evidence to be offered showing that James Paxton and his family understood and believed that the church was to be builded upon the lot in Kansas which was then owned and occupied by the church as church property. This was not one of the conditions required by Paxton at the time he entered into his subscription, and having named the conditions in writing and subscribed to the conditions upon which he would pay the subscription, no other conditions were material and the court properly excluded the evidence offered. James Paxton having made his subscription along with others for the building of this church and having named the conditions upon which he would pay the same, the authorities of the church had power to proceed with the building of a new church and the raising of subscriptions therefor, and were entitled to rely upon the subscriptions made by Paxton, and act thereon, and if any liability was incurred or obligation made on the faith of the subscription made by Paxton, or time had been expended in the raising and securing of other subscriptions to the extent of the completion of the church, Mr. Paxton could not after that time legally withdraw his subscription. The evidence in this record shows that not only were other subscriptions obtained after the Paxton subscription, but that after the subscription was made and before its attempted withdrawal, the Birch lot was purchased and partially paid for, and while the subscription of James Paxton is for the building of the church, this not only authorized the building of the church but the securing of property upon which to build it, and the authorities had the right and acted within their authority in making the purchase of this lot and constructing the church thereon. Richelieu Hotel Co. v. International M. M. Co., 140 Ill. 248; Trustees Kentucky Bap. Ed. Soc. v. Carter, 72 Ill. 247.

It is also contended by appellant that the record does not show any appointment of Charles Paxton as executor of the estate of James Paxton, and that the claim should have been filed against Charles Paxton, Executor, instead of against the Estate of James Paxton. It is a sufficient answer to this contention, even if it contained any merit, and we hold that it does not, that no such question was raised in the trial court, and cannot be raised for the first time in this court.

Propositions of law were submitted to the trial court and passed upon by it, and from a careful examination of these questions we find that the court committed no error in passing on the propositions submitted. The judgment of the circuit court is right, and will be affirmed.

'Affirmed.


text:
    First National Bank of Mattoon, Appellee, v. S. L. Seass and Maggie Seass, Appellants.
    1. Appeals and errors—opinion on former appeal. The opinion of the Appellate Court on a prior appeal binds the trial court and the Appellate Court.
    2. Practice—when error to direct a verdict. It is error to direct a verdict where, in order to determine questions of fact involved material to the issues, it is necessary to weigh the evidence and determine upon which side the preponderance is.
    3. Evidence—when error to exclude evidence that certain person made representations though he is not positively identified. In an action on a note given by defendant for the purchase price of a mare at an auction sale it is error to exclude evidence by defendant that a certain officer of plaintiff bank was present at the sale, and made certain representations, though defendant cannot positively identify such officer.
    4. Evidence—when error to exclude evidence as to representations alleged to have induced defendant to execute note in question. It is error to exclude evidence by defendant in an action on a note given for the purchase price of a mare at an auction sale, that he relied on representations as to the mare and that without such representations he would not have executed the note, where it is claimed that such representations were made by the person who held the sale and an officer of plaintiff hank, which it is alleged had some arrangement with such person.
    Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed March 18, 1913.
    Andrew L. Chezem, for appellants.
    Craig & Kinzel, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

On March 14, 1908, appellant gave to one H. B. Sinsabaugh, a horse dealer of Mattoon, Illinois, his promissory note for $325, being the purchase price of a mare bought by appellant at a public auction sale held by Sinsabaugh. This note was sold and assigned by Sinsabaugh to the First National Bank of Mattoon, appellee. Judgment was confessed upon this note in favor of appellee against appellant. Application was made by appellant to open this judgment, stay the execution and for leave to plead to the merits. An affidavit was filed in support of the motion made by appellants. The city court of Mattoon wherein the judgment was confessed, denied the application and refused to open the judgment and permit appellant to plead. Appellants prosecuted an appeal from that judgment and the cause was brought to this court by appeal, heard in this court and opinion filed October 18,1910, reported in 158 Ill. App. 122. Upon the hearing in this court upon that appeal, it was held that the affidavit of appellant presented a substantial defense to the note. This court then held that if, upon a hearing, appellant substantiated the allegations and averments in his affidavit, that he would have presented a substantial defense of partial failure of consideration of the note and if the statements contained in the affidavit were substantiated by evidence, then appellee took the note with notice of such defense. The cause was then reversed and remanded, with directions to the city court of Mattoon to open this judgment, stay execution and grant appellant leave to plead to the merits. Upon the reinstatement of the cause in that court, the directions of this court were followed in this particular and a trial was had upon the issue formed by the pleadings of appellant. At the close of the evidence upon the second hearing in that court, the court sustained a motion of appellee and directed a verdict for appellee against appellant for the amount due upon the note, a verdict was rendered under the direction of the trial court, judgment was rendered, and it is from that judgment that this appeal is prosecuted.

Appellant insists that it was error in the trial court to direct a verdict for appellee, there was sufficient evidence to require the cause to be submitted to a jury upon the questions of fact presented; they also insist that the court erred in its rulings upon the admission and rejection of evidence.

This court and the trial court is bound by the former judgment and opinion in this court. Conner v. Conner, 163 Ill. App. 436.

It having held therein that if evidence was offered to substantiate the facts tending to prove notice to appellee of the defense claimed by appellants, and if upon that trial the evidence produced tended to prove the representations claimed to have been made by Sinsabaugh and that they were made in the presence of an officer of the bank, as contended for in this affidavit, and that a representative of the bank was present at the time and informed appellant that he could rely upon the representations made, then the defense was good as to a partial failure of the consideration of this note. The facts which were presented in the affidavit in support of the motion to open this judgment are fully set forth in the former opinion of this court. 158 Ill. App. 122, supra.

Examination of this record discloses that appellant did produce upon the trial of this case evidence tending to prove the facts set forth in the affidavit. While the evidence so produced is denied by witnesses on behalf of appellee, the question as to whether appellant’s evidence preponderated was a question of fact for the jury. There was evidence produced by appellant tending to prove all of the material allegations and averments contained in his affidavit, and the fact that there was a slight variation between the testimony and the affidavit in regard to the office which one Richmond, who was present at this sale, held with the bank was immaterial. The affidavit represented that he was cashier, and the evidence disclosed that he was a vice president; the question as to what office he held in the bank, or under what title he represented it, was immaterial, if he was authorized to and did represent the bank at this time.

Appellee insists that there is no evidence in the record showing that Richmond was present at the sale by reason of a previous arrangement between the bank and Sinsabaug'h as stated in the affidavit. The evidence is uncontradicted that Richmond was vice president of this bank, that he was present at the sale and appellant testifies to the conversation had between himself and Richmond who claimed to be a representative of the bank at that time. If this evidence is true it tends to show that there was some prior arrangement between the bank and Sinsabaugh, and appellants were entitled to have this question determined by the jury upon the evidence produced.

The evidence concerning the questions of fact in controversy in this record is conflicting. For the purpose of determining upon which side the greater weight or preponderance was, it was necessary to consider and weigh this evidence, and the rule is well established in this state and needs no citation of authority, that where in order to determine- questions of fact involved material to the issues, it is necessary to weigh the evidence and determine upon which side the preponderance is, it is error to direct a verdict, and upon the facts in this record it was error for the trial conrt to direct a verdict in this case.

Upon the contention that the conrt erred in the admission and rejection of evidence, we find that while appellant was not positively able to identify Richmond as the man who was present at this sale, he does testify that to best of his knowledge arid belief and recollection Richmond was the man who was present and with whom he held the conversations concerning the papers or certificates entitling the mare purchased to be registered, and that the same would be furnished to him. The court excluded this evidence because appellant would not say positively that he could identify Richmond as the man. This evidence should have been permitted to go to the jury, it was proper as tending to prove the identity of the man, and it was error for the court to exclude it. It was also error for the court to refuse to permit appellant to testify that he relied upon the representations which he claimed were made to him by Sinsabaugh and Richmond, and that without such representations and statements he would not have executed this note.

There are numerous other slight inaccuracies in the rulings of the court upon the admission and rejection of evidence, but from what has been heretofore said, these will undoubtedly be cured upon another trial. We do not consider it necessary to go into them in detail.

For the error of the trial court in directing a verdict for the plaintiff, the judgment is reversed and the cause remanded.

jReversed and remanded.


text:
    Nelson Bumgardner for use of J. M. Bumgardner, Appellee, v. John Scaggs and T. M. Smart, Appellants.
    1. Landlord and tenant—right of tenant to crops. A tenant who leases premises for a year is entitled to grow and obtain such crops as may be grown during the year and harvested prior to the expiration of the lease.
    2. Statute of frauds—what verbal promise to execute lease within. A verbal promise to execute a lease to premises for a year beginning on a certain date, if made prior to such date is within the statute of frauds.
    3. Landlord and tenant—when landlord may re-enter. Where a tenant abandons the premises before the expiration of his lease without notice to the landlord and without his consent and removes to another state where he thereafter resides, the landlord has a right to re-enter and take possession.
    4. Landlord and tenant—abandonment. The statute relating to gathering of crops on abandonment of premises has no application to crops planted by the tenant which cannot mature before the expiration of the lease but applies only to the growing and maturing of crops during the term for which the lease is executed.
    5. Landlord and tenant—crops. A tenant by planting a crop which cannot mature until after the expiration of the lease, obtains no right to re-enter to gather the grown crop.
    6. Landlord and tenant—landlord cannot be required to harvest crop. A tenant who plants a crop which cannot mature before the expiration of his term and abandons the premises before such expiration, cannot require the landlord after the expiration of the term to use the premises to mature or harvest the crop for his use.
    7. Landlord and tenant—when landlord may enter. Where the term of a tenant, who abandoned the premises before the expiration of his term has expired, his rights and interests in the premises have ceased though a crop planted by him has not matured and the landlord has a right to enter and execute a lease from the time of the expiration of such tenant’s term.
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed with finding of fact.
    Opinion filed March 18, 1913.
    Rehearing denied April 16, 1913.

      Provine & Provine, R. C. Neee and E. E. Adams, for appellants.
    Howard Maxon and L. G. Grundy, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

John Scaggs and John Crawford owned 160 acres of land in Christian county. Scaggs was an elderly man and unable to actively engage in business; for his interest in these premises he executed a lease to Crawford, who was his son-in-law and who looked after the land for him. For the year commencing March 1,1910, and ending March 1, 1911, a lease for this land was made to Nelson Bumgardner. In December, Bumgardner abandoned the premises without notice to Scaggs and Crawford and moved to the state of Kansas. In September, 1910, Bumgardner sowed upon these premises forty acres of wheat. After Bumgardner vacated the premises Crawford leased the premises from March 1, 1911, to March 1, 1912, to appellant Smart, who entered into possession of the place. During the month of July, 1911, when the wheat sown by Bumgardner was ready to harvest, it was harvested by Smart as tenant. When he was cutting the wheat J. M. Bumgardner, a brother of Nelson Bumgardner, appeared upon the scene and demanded that he be permitted to harvest this crop, claiming that it belonged to his brother, Nelson Bumgardner, and that he had received directions from his brother to harvest the crop; his request was refused.

After J. M. Bumgardner failed to obtain possession of the wheat crop in this manner, he then began an attachment proceeding against his brother, Nelson Bumgardner, upon a claim alleged to be owing from Nelson to J. M. Bumgardner, and Smart, the tenant, and Scaggs were served as garnishees. The garnishment portion of the attachment was continued until after the final determination of the writ against the attachment debtor. Nelson Bnmgardner made no defense, • and J. M. Bnmgardner obtained a judgment against him. The garnishees answered the garnishment denying that they had in their possession any property or effects belonging to Nelson Bnmgardner; the answer was traversed, and upon a hearing judgment rendered against the garnishee for the amount of the judgment recovered against Nelson Bumgardner; and it is from that judgment that this appeal is prosecuted.

Upon the hearing upon the garnishment proceeding it was not contended that appellants had any property in their possession belonging to Nelson Bnmgardner other than the proceeds of the sale of this crop of wheat. There is no contention that Nelson Bumgardner ever received any written lease for these premises or any portion thereof for the year commencing March 1, 1911, but his right to the wheat is based upon a claim that Scaggs promised to lease to him these premises for the year commencing March 1, 1911, and ending March 1,1912, and relying upon this alleged promise he sowed the wheat during the fall of 1910.

Appellants urge a reversal of this cause and insist, first, that Nelson Bnmgardner had no interest whatver in this crop of - wheat nor in these premises; second, that when he left the farm without notice to or consent of the landlord he abandoned all rights that he then had in the said premises; third, that the lease by which he held possession expired March 1, 1911, and under that lease he retained no rights in the premises after March 1, 1911, and especially, after having abandoned them in December, 1910; fourth, that no promise was made by Scaggs to execute a new lease to Nelson Bnmgardner, and that the wheat was sown during the fall of 1910 without the knowledge or consent of either Crawford or Scaggs; fifth, that even if a promise was made to execute a lease during the fall of 1910 to commence on the first of March, 1911, and continuing until the first of March, 1912, there being no written agreement to this effect, a parol agreement was within the statute of frauds.

Nelson Bumgardner having obtained a lease for these premises commencing March 1, 1910, and ending March 1, 1911, was, under this lease, only entitled to grow and obtain upon the premises such crops as might be grown during the year 1910 and harvested prior to March 1, 1911, he could have no right under and by virtue of this lease to plant any crops which it would require any portion of the following year to mature and thereby retain the use of the landlord’s premises for a time beyond the expiration of the lease by its own terms, and all rights acquired by Nelson Bumgardner expired by this lease March 1, 1911.

Upon the contention that a verbal promise was made by appellant Scaggs to execute a new lease commencing March 1, 1911, the contention of appellee being that this promise was made prior to the sowing of the wheat in September, 1910, if it was made at any time prior to March 1, 1911, it was within the statute of frauds, and is consequently void.

Appellee insists that by virtue of section 33, chapter 80, Hurd’s Bevised Statutes 1911, although the lease held by Nelson Bumgardner expired by its terms on March 1, 1911, it was Scaggs’ duty when he took possession to mature and harvest this crop for the benefit of Nelson Bumgardner.

The evidence shows conclusively that during the month of December Nelson Bumgardner abandoned these premises without notice to the landlord or without his consent, and removed to the State of Kansas where he has since resided, he then abandoned the premises for the balance of his term and having so abandoned them, the landlord had the right to re-enter and take possession.

It is insisted by appellee, however, that section 33, supra, required the landlord, after he had taken possession of the premises to properly cultivate, mature and harvest this crop for the benefit of the tenant who had abandoned the premises. Upon this contention, we are of the opinion that section 33 has no application to the maturing or harvesting of any crops which required the use or occupation of the premises for a time extending beyond the leasehold interest, and that this statute applies only to the growing and maturing of crops for the year during which the lease was executed. By planting the wheat in September, 1910, Nelson Bumgardner obtained no right to retain possession of the premises after March 1, 1911, and had no right, under section 33 of the statute, to require or demand that the landlord should after-that time use his premises to mature or harvest this crop for the use of the tenant. By reason of the abandonment of the premises by Nelson Bumgardner and also by reason of the expiration of the term of his lease on March 1, 1911, all his rights and interest in these premises ceased and the landlord had the right to re-enter and execute a new lease upon the premises for the year commencing March 1, 1911, and ending March 1, 1912, without any claim thereto by a former tenant. Carpenter v. Jones, 63 Ill. 517; Crotty v. Collins, 13 Ill. 567.

The judgment is so clearly and manifestly against the weight of the evidence and against the law that the judgment must be reversed. The clerk will enter in the judgment in this court the finding of fact that the premises in question were abandoned by Nelson Bumgardner in December, 1910, that Nelson Bumgardner sowed the wheat in September, 1910, without any right or authority so to do.

Judgment reversed with finding of fact.


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    The People of the State of Illinois, Defendants in Error, v. Max Carp et al., Plaintiffs in Error.
    1. Criminal law—record. An alleged error in permitting the amendment of an information during vacation will not be considered where the record does not disclose that the information was in any manner changed or amended.
    2. Criminal law—when alleged error is immaterial. An alleged error in requiring defendants to plead during vacation is immaterial where the record shows that defendants were arraigned and pleaded not guilty at a subsequent term.
    3. Criminal law—evidence as to use of corporate name. In a prosecution for using a corporate name for the purpose of obtaining business without being regularly licensed, advertisements displayed by defendants are admissible.
    4. Criminal law—verdict of not guilty against part of defendants. Where three defendants are indicted for using a corporate name, for the purpose of obtaining business, without being regularly licensed, the fact that the jury found one defendant not guilty does not affect the judgment against the others found guilty.
    5. Names—use of corporate name. In a prosecution for using a corporate name to obtain business without being licensed, there being evidence that defendants displayed advertisements such as to give the general public the impression that they were incorporated, a verdict of guilty will be sustained.
    Error to the County Court of Adams county; the Hon. Lyman McCarl, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    Walter H. Bennett and William Schlagenhauf, for plaintiffs in error.
    John T. Gilmer and Arthur R. Roy, for defendant in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is a prosecution by information filed in the . county court of Adams county in vacation before the May term, 1911, against the defendants, Max Carp, Ben Carp and Joe Carp, charging them, for the purpose of obtaining business and influence in trade, with using a corporate name without being a reguarly licensed corporation.

The information as originally filed was by leave of the county judge amended, in vacation, the nature of the amendment, if one was then made, is not disclosed by the record. The information charges the defendants, at and within the county of Adams, state of Illinois, with fraudulently and unlawfully putting forth certain signs and advertisements, thereby and therein unlawfully and fraudulently assuming for the purpose of soliciting business, a corporate name, viz: The Carp Trading Company, alleging that The Carp Trading Company, was not a corporation. The information was filed by the State’s Attorney of Adams county. The defendants were brought into court on the 14th of March, in vacation, and entered their motion to quash the information. On this day, the court required the.defendants to enter a plea and they each pleaded not guilty. The court thereupon took the motion to quash under advisement, and the cause was continued until the May term, 1911. At the May term, which was one of the common law terms of the county court in Adams county, the defendants renewed their motion to quash the information; this they were permitted to do and it amounted to a withdrawal of the former pleas of not guilty. The motion was overruled by the court and the defendants, upon being duly arraigned, entered a plea of not guilty. The cause was continued until the August term, 1911, also a law term. On the 5th of September, 1911, the cause was heard in that court, a jury regularly impaneled and a trial was had; the jury was instructed to find Ben Carp not guilty, they returned a verdict finding the defendants Max Carp and Joe Carp guilty. A motion in arrest of judgment was made and overruled, judgment rendered on the verdict; and from that judgment the defendants Max Carp and Joe Carp prosecute this writ of'error.

Plaintiffs in error urge a reversal of this cause because they insist that the county court had no power in vacation to permit the amendment of the information ; and that it had no power to require the- defendants to plead to the information in vacation or at a probate term of said court, and while the motion to quash was pending.

Upon the contention that the county court had no power at a probate term or in vacation .to permit an amendment of the information, the record does not disclose that any amendment was made or that the information was in any manner changed or amended, the mere fact that permission was granted to the People to amend the information would therefore be wholly immaterial.

It is insisted that the court had no power to require the defendants to plead to the information in vacation. No trial was had during vacation, and after the plea had been entered it was continued until the regular law term in May following. At this term after the motion to quash was denied by the court, the record shows that the defendants were again arraigned and pleas of not guilty entered. If there had been any error committed in the former action of the court, it became immaterial after this action at the regular law term.

The only other grounds urged for reversal of this cause are that the evidence is not sufficient to support the verdict and that the court improperly admitted advertising matter offered. The record discloses that the defendants, Max Carp and Joe Carp, came to Quincy in Adams county and held a nine days’ sale of merchandise. Advertisements and handbills were printed and displayed in the city of Quincy. We find that Exhibit A contains the following:

“Carp Trading Co. America’s Greatest Bargain Givers. Will open at 120 North Fifth Street, Quincy, Ill., with a public sale for nine days beginning Thursday, March 9th, 1911, at 9 A. M.,
Who We Abe. The Carp Trading Co., is an organization with offices in the principal cities of the U. S., who are administrators, trustees, and merchants, in short, we handle estates and merchandise of every known description and turn same into cash.
Why We Do It. Desirous of establishing another link in our long chain of stores, the Carp Trading Co.
Only institution of its kind
The Carp Trading Co. Universal Providers of Under-priced Merchandise Watch for the flags.
There is only one Carp Trading Co., system in the United States, and only one Carp Trading Co.”
The defendants offered no evidence.

The evidence in this record shows a clear violation of the section of the statute complained of; and the mere fact that there might be some irregularities in the preliminary proceedings before the time of the trial cannot in any manner affect the validity of the judgment.

The language used in the advertisements displayed by these defendants was such as to give the general public the impression and lead them to believe that the Carp Trading Company was incorporated, and the statements made and the extravagant use of language could have been made for no other purpose than that of deceiving the general public and for the purpose of influencing their trade. The fact that the jury found the defendant Ben Carp not guilty cannot in any manner affect the judgment against those who were found guilty, and they cannot complain because another was found not guilty.

The verdict and judgment is fully warranted by the facts, and there being no reversible error in the record, the judgment is affirmed.

Affirmed.


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    James R. Snider et al., Plaintiffs in Error, v. Edwin M. Van Petten and Anna F. H. Van Petten, Defendants in Error.
    1. Covenants—when express covenant supersedes implied covenant. In an action for a breach of warranty in the sale of land, the covenants raised by statute from the use of the words “grant, bargain and sell” are held to be superseded by an express covenant in the deed and the counts in plaintiff’s declaration based on an implied covenant do not state a cause of action.
    2. Covenants—action for breach of express warranty. Where plaintiffs purchased certain land in Arkansas from defendants who covenanted to warrant and defend title, and a tax assessed prior to the purchase is levied and on foreclosure proceedings the property is conveyed to a third person, plaintiff never having been in possession, cannot rely upon a constructive eviction to sustain his action for breach of express covenant, and a demurrer to his declaration is properly sustained.
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    Bassett, Morgan & Hebel, for plaintiffs in error.
    Barry & Morrissey and Fitz Henry & Martin, for defendants in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

On the 8th day of August, 1904, defendants in error conveyed to plaintiffs in error certain farm property in St. Francis county, Arkansas, by deed of “grant, bargain, sell and convey.” Following the habendum clause, the deed contained the following express covenant. “We hereby covenant with the said James E. Snider and Benjamin F. Snider that we will forever warrant and defend the title to said lands against all claims whatever.” Defendant Anna F. H. Van Petten is the wife of Edwin M. Van Petten, and executed the deed solely for the purpose of releasing her dower.

This land was located within the boundaries of the St. Francis levee district; and in May, 1904, the board of directors of this levee district levied a certain tax upon the said lands, but the assessment roll levying this tax was not filed in the office of the county clerk of St. Francis county until January, 1905; and the levy of this tax was not a matter of record in St. Francis county at the time of the execution and delivery of the deed in question, and was not discovered by either of the parties to this action until some time in 1907. The statute of Arkansas provided that taxes levied in May of each year by the board of directors of the St. Francis levee district, should be a lien on the land against which it was levied, in the nature of a mortgage lien bearing interest at the rate of six per cent per annum after thirty days from the filing of the same in the county clerk’s office and until paid.

Foreclosure proceedings were commenced in December, 1905, to collect this tax, and proceeded to a final decree and deed; a deed was made in accordance with the decree by the commissioner named therein to one S. H. Mann.

This action is brought for a breach of covenant alleged to have been contained in the deed of conveyance, it being insisted by plaintiffs in error that under and by virtue of the statutes of the state of Arkansas, which are properly set forth and pleaded, that a deed containing the words, “grant, bargain, sell and convey,” constituted the covenant that the grantor was seized of an indefeasible estate in fee simple, free from all incumbrances done or suffered from grantor; also, quiet enjoyment from claims and demands of all persons whatsoever, unless limited by the express terms of such deed.

The first breach assigned is that the grantors were ■not seized of an indefeasible estate in fee simple and had no right to convey.

The second breach is that the lands were not free from incumbrance, but that the same were liable for certain taxes, setting forth the tax of the St. Francis levee district, and averring that the same was a lien at the time the covenants were made by the defendants in error, then averring the foreclosure proceeding and the sale of the land under and by virtue of the statute of the state of Arkansas.

Another breach alleged the execution of the deed, the covenants contained therein, the incumbrances upon the land, and avers that the lands were vacant and unoccupied and that the plaintiffs in error were denied possession of the premises when they undertook to enter into possession under and by virtue of the deed executed by defendants in error, and that under and by virtue of the foreclosure proceedings and the sale for nonpayment of taxes, a deed executed under such decree vested in the purchaser a valid title both in law and equity; and that under and by virtue of the decree a deed was executed and delivered to S. H. Mann and the report thereof approved by said court. That the defendants in error were not in possession and never had been in possession of the real estate and that by virtue of the proceedings had for the foreclosure of the tax lien, by reason thereof defendants in error did not keep their covenants, that by reason of the execution of the deed to the said Mann he refused to permit plaintiffs in error to enter; that the title conveyed to S. H. Mann under and by virtue of the foreclosure proceedings was a paramount title and by reason thereof there is a constructive eviction of plaintiffs in error from said premises.

Defendants in error demurred to- each of the breaches assigned in this declaration. The court sustained the demurrer. Plaintiffs elected to stand by their declaration, and a final judgment was rendered, from which plaintiffs prosecute this writ of error.

The full text of the statute of Arkansas under which it is contended that the deed of “grant, bargain, sell and convey” shall be construed as a warranty is not set forth verbatim, but the declaration avers that the statute of the state of Arkansas provides that where the words, “grant, bargain, and sell,” are used, shall be construed to be an express covenant to the grantee, his heirs and assigns, that the grantor is seized of an indefeasible estate in fee simple free from incumbrances done or suffered by the grantor; also, quiet enjoyment against the grantor, his heirs and assigns, and from all claims and demands of all other persons whatsoever unless limited by the express words in such deed. It is contended on the part of plaintiffs in error that the express warrant in the deed does not supersede or destroy the covenants implied in a deed of “grant, bargain, sell” and convey by the statute. On the other hand, it is contended by defendants in error that the statutory covenants implied in a deed of this character must give way to the express covenant to warrant and defend, contained in this deed.

The averments in plaintiff’s declaration regarding the statutory enactment of the state of Arkansas contains the same averments and is in effect the same statute as is in force in the state of Illinois. Section 8, chapter 30, on “Conveyances,” Hurd’s Revised Statutes 1911.

The Supreme Court of this state has said in Finley v. Steele, 23 Ill. 56: “The covenants raised by law from the use of particular words, are only intended to be operative where the parties themselves have omitted to insert express covenants. But where the party declares how far he will be bound by warrant, that is the extent of his covenant.” In Finley v. Steele, supra, is cited a Missouri case in which a similar statute in Missouri is construed in the same way. Finley v. Steele, supra, is cited with approval in Rubens v. Hill, 213 Ill. 523-539; and we hold under the rule laid down in these cases, that the only covenant contained in the deed executed by defendants in error is the express covenant in their deed, and that the implied covenant implied by the statute is superseded by the express covenant in this deed. Consequently, the first or second counts of plaintiff’s declaration do not state a cause of action.

The third or additional breach assigned counts upon the breach of the express covenant whereby defendants covenant to warrant and defend the title, and assigned, as a breach of this covenant the levy of the drainage tax by the board of directors of the St. Francis levee district and the filing of the same in the county clerk’s office, the failure to pay the tax and the foreclosure proceedings instituted to collect the same under and by virtue of the statute of the state of Arkansas, that this foreclosure proceeding culminated in a decree of foreclosure, the sale of the premises, the purchase of the same by one S. IT. Mann, and the final execution of the deed to him for the premises. This breach avers that the defendants did not have .any title to said real estate and were not in possession of the same at the time of the conveyance aforesaid to the plaintiffs, and that such lands were vacant and unoccupied and so remained vacant from thence until the present time, and that plaintiffs never have been in the possession of said premises and were not able to obtain the possession by reason of a paramount title so held by the said S. H. Mann, by virtue of his deed under said foreclosure proceedings, and avers that the plaintiffs were, by reason of the proceedings, constructively evicted out of and from the possession of said premises.

Plaintiffs in error rely upon a constructive eviction from these premises in order to sustain their allegation of a breach of the express covenant contained in this deed. Defendants in error contend that a breach of the express covenant is not shown by a constructive eviction and that no breach of this express covenant is shown by the allegations contained in the assignment of this breach as alleged in the declaration.

The express covenant made by defendants in error is to warrant and defend this title. In the case of Scott v. Kirkendall, 88 Ill. 465, the only question involved was whether or not there had been a breach of the covenant of warranty, and the Supreme Court there said: “The only question presented by the record, which we need to consider, is, whether there can be a recovery in an action of covenant for breach of the covenant of warranty in a case where the land concerned is and ever has been vacant and unoccupied, without showing more than an outstanding paramount title. The great current of authority is in favor of the negative of this proposition.” In that case the evidence disclosed, at the time of the execution of the deed, appellees had no title to the land but that a paramount title was still in the United States for one quarter and in one Holman for the balance. The Supreme Court further said: “The mere existence of a paramount legal title which has never been asserted, cannot amount to a breach of this covenant. The covenantee or his assignee, must be disturbed in the possession, actual or constructive, he must be evicted, or there must be something equivalent thereto. * * * It is not necessary, however, that he should be evicted by legal process; it is enough that he has yielded the possession to the rightful owner, or, the premises being vacant, that the rightful owner has taken possession.” The. same doctrine is held in Barry v. Guild, 126 Ill. 439.

In the case at bar, as stated in the third or additional breach, the facts set forth nothing more than a constructive eviction. The purchaser under the foreclosure proceeding, under the averments of the declaration, had never taken possession of the premises, there never had been any legal action for the purpose of determining the right to possession; the trial court properly held that the alleged breach of the covenant as contained in the assignments in this third or additional count did not constitute a cause for action. The court properly sustained the demurrer.

The judgment is affirmed.

Affirmed.


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    Charles E. Rodgers and Catherine Howe, Appellees, v. Metropolitan Life Insurance Company, Appellant.
    1. Insurance—evidence. Refusal to permit defendant in an action on an insurance policy to show that a statement in the insured’s application to the effect that she had not been examined or attended by a physician for any serious disease was untrue is not error where there is no issue or fact raised by the pleadings whether any of the representations in the application were false, the application is not a part of the policy, defendant is permitted to introduce evidence that the insured was suffering with a serious disease at the time of and prior to the issuance of the policy, and such question is properly submitted to the jury.
    2. Instructions—repetition. It is, not error to refuse an instruction which is fully covered by instructions given.
    Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    Kirby, Wilson & Baldwin, for appellant.
    J. O. Priest, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action by the beneficiaries on an insurance policy issued by appellant upon the life of Ella M. Rodgers, of date September 5, 1910. The insured died on July 18, 1911.

Appellant filed seven pleas, the first special plea alleging that under the conditions of the policy appellant was not liable because the insured was not in sound health at the time of the issuance of the policy, alleging that the insured was suffering with a disease known as salpingitis, the second plea is of the same character, alleging that the insured was suffering from pulmonary tuberculosis, the third special plea is the same as the second, the fourth special plea is of the same character, alleging that the insured was suffering with cancer prior to the date of the issuance of the policy, the fifth special plea is of the same character, but does not state any particular disease but that the insured was suffering with a serious disease, the sixth special plea set up the conditions of the policy and avers that the insured had been attended by a physician prior to the issuance of the policy for pulmonary tuberculosis and that by reason thereof the conditions of the policy became violated and the policy void. Issue was joined upon all of these pleas, trial had, and a finding against appellant and judgment rendered on the verdict, from which judgment appellant prosecutes this appeal.

It is conceded in the argument of appellant that all of the pleas present affirmative matter and that the burden of proving the issues presented by these pleas was upon appellant. The questions involved in this case upon the evidence are wholly questions! of fact; and if these questions were properly submitted to the jury by the trial court, then this court should not disturb the finding of the jury unless it is clearly and manifestly against the weight of the evidence.

The only evidence offered by appellant in support of these pleas was that of three doctors, one of whom Dr. Ogram, had attended the insured prior to the date of the issuance of the policy; neither of the other doctors had ever examined, seen or known the insured prior to the issuance of the policy. It was sought by Dr. Ogram to show that the deceased had been suffering with salpingitis and pulmonary tuberculosis prior to the date of the issuance of the. policy, but the doctor declined to so testify, he did testify that she had been suffering from salpingitis, but he did not testify that this was a dangerous disease or that she died as a result thereof. The evidence discloses that she died from a cancer of the uterus and was suffering with pulmonary tuberculosis at the time of her death, but that the cancer developed after an operation was performed for a disease known as salpingitis, but that there was no indication of cancer and none developed until long after the operation had been performed. This operation was performed some seven months after the policy was issued. Dr, Ogram declined to testify that the deceased was suffering with any serious disease prior to the date of the issuance of the policy. The only evidence tending to prove that she had tuberculosis of the lungs prior to the issuance of the policy was by one of the doctors, Dr. Hardesty, who had attended her long after the issuance of the policy, and he could not say positively that she had tuberculosis at the date the policy was issued, but that it was his judgment that she did have from the stage in which the disease was at the time he examined her. There is no pretense that there is any proof sustaining the plea that she was afflicted with cancer at the date of the issuance of the policy. Neither of the doctors would testify positively that she was afflicted with pulmonary tuberculosis or salpingitis prior to September 5, 1910; all of them admitted that these diseases might have developed between the time of the issuance of the policy on September 5, 1910 and the date of their examination in November.

Appellant insists that the trial court erred in refusing to permit it to show that the statement in the insured’s application that she had not been examined or attended by a physician for any serious disease was untrue. There was no issue of fact in this case raised by the pleadings as to whether or not any of the representations made in the application were false or fraudulent and in fact the application is not a part of the policy, but expressly provides that it shall not become and is not a part of the policy of insurance. The court did not deny appellant the right to show that the insured had been suffering with a serious disease at the time of and priop to the issuance of the policy, but permitted evidence offered on behalf of appellant for this purpose, and properly submitted the question to the jury.

We do not find any error in the rulings of the trial court upon the evidence, and we are satisfied that the verdict is fully warranted from the evidence in this record.

We find - no error committed by the trial court in the giving of the instructions complained of, the instructions as a whole properly presented to the jury the issues raised by the pleadings in this case. It is insisted that the court should have given instruction No. 19, marked as refused; this instruction was fully covered by No. 11, given. The other instructions taken as a whole are not subject to the criticism made, and we find no error in the giving and refusing of instructions.

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

Affirmed.


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    Pierce and Caldwell, Appellees, v. W. L. Powers and Massachusetts Bonding & Insurance Company, of Boston, Appellants

      Contracts—waiver of conditions. The parties may waive the conditions in a contract under seal by parol and when so waived the conditions are abrogated.
    Appeal from the Circuit Court of Macon county; the Hon. William C. Cochran, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    Rehearing denied April 16, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Francis R. Wiley, for appellants; William McGinley, of counsel.
    Buckingham & Gray, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

On January 10, 1910, W. L. Powers entered into a contract with Pierce and Caldwell wherein he agreed to build for them a concrete bakery in Decatur, Illinois, according to plans and specifications furnished by one Aschauer, an architect; he was to receive as the contract price, $14,923. The Massachusetts Bonding and Insurance Company, appellant, furnished a surety bond guaranteeing the performance of this contract by Powers in the sum of $7,500. This action is upon that bond.

The contract provided that the building should be commenced as soon as the weather conditions permitted and that the same was to be completed according to the plans and specifications, June 15, 1910; this contract also provided that if at any time Powers, the contractor, failed to furnish a sufficient number of skilled workmen or the proper material or amount of material, and for any failure to prosecute the work with promptness, Pierce and Caldwell might discharge him, upon three days’ notice, upon the architect’s certificate’ showing such default. The contract further provided that in the event of the discharge of Powers and the completion of the building by appellees, the expense and damage by reason thereof should be audited and certified by the architect and be conclusive upon both parties. It provided, further, that Powers should be paid only upon the certificate of the architect, such payments to be made monthly and only eighty-five per cent, of the amount due to be paid.

The provisions of the contract were all incorporated in the bond and made k part thereof. This bond provided that appellant should 'not be liable unless given ■notice of any default on the part of Powers in writing promptly and immediately upon knowledge of such default, and in any event not later than thirty days after the default and that in case of default, the surety company should be subrogated to all his rights in the premises.

Powers began the work; he was paid $3,400 on the architect’s certificate, on May 14; this was the first and last payment made to him. On May 30, plaintiffs accepted an order from him and paid $1,460 to one C. A. Turner, which plaintiffs claim should have been paid by Powers out of the $3,400 paid him on May 14. ■ They immediately notified appellant by letter of this fact, and although appellant denies receiving this letter, the record discloses that it was written and mailed, properly directed, with postage paid, and although appellant denies its receipt, it did within a short time thereafter send a representative to Decatur' to investigate this question. On May-30, it notified appellees that' it was sending one Eoberts to look after its.interests. We think the preponderance of the evidence is sufficient to Justify the conclusion that the letter was received by- them.

All other payments made while Powers or his foreman remained in charge of the building were paid direct to the laborers and material men. In this manner $13,154.30 was paid; they were paid without any certificate of the architect.

Appellees contend that when Roberts arrived, he directed them to go ahead and get all they could out of Powers, to push the work as fast as possible, but to pay Powers no more money. Powers was discharged on September 27, when the foreman whom he had had at work upon the building quit the job. Proceedings were had for mechanics’ liens by material men for material furnished for this building; these proceeded to final judgments and the liens were obtained which were satisfied by appellees.

A continual correspondence was kept up between appellees and appellant concerning the condition of the building and its progress and the default of Powers. In all the correspondence on the part of appellant they proverbially added the clause, “We reserve all our rights.” Appellant was kept fully notified of the defaults and failure to carry out the contract by Powers. s On numerous occasions they sent their representative to Decatur to make reports upon the progress and condition of affairs. Trial was had without a jury and appellees recovered a judgment for $5,250.81

Appellants insist that this judgment should be reversed, urging as reasons therefor that appellees did not comply with the terms of the contract of surety and insist that it was incumbent upon appellees to show positive proof of notice to it, by the receipt of the letter notifying it of the first default on the part of Powers, and that they violated the provisions of the contract in paying out any money except upon certificates of the architect, and that they violated the provisions of the contract which required them to retain fifteen per cent, of the amounts due upon the monthly certificates made by the architect; and contend that the contract being under seal could not be varied or altered by parole, and that appellees were bound by its strict provisions. While it is true, as contended, that a contract under seal cannot he varied by parole, the law is well settled that the parties to the contract may waive its conditions by parole, and when waived by parole the conditions are abrogated in the contract. Becker v Becker, 250 Ill. 117, and eases cited therein.

We are satisfied from the evidence disclosed in this record that the representative of appellant was authorized and did waive the conditions of the contract, and that appellees were authorized and properly acted under such waiver. There is no claim upon this record but what if appellant is liable, the judgment is for the proper amount.

Propositions of law were submitted and passed upon by the trial court, and those held are in conformity •with the views herein expressed. From a careful examination of all the propositions submitted and held or refused, we are satisfied that the trial court committed no error.

This judgment being the only one the court could properly render, it is affirmed.

Affirmed.


author: Mr. Justice Phtlbrick

text:
    William Jester and Thomas Jester, Appellees, v. Charles G. Young, Administrator, Appellant.
    1. Administration of estates—when report is res adjudicate/,. Where an item for certain attorneys’ fees is not written in the final report of an administrator but is presented by motion and is denied and no appeal is taken, such action is a final adjudication of the question, and it cannot be again raised by filing a supplemental report with only such item additional therein.
    2. Appeals and errors—affirmance. If the judgment of the trial court is correct, it must be affirmed regardless of the reasoning by which the court arrived at it.
    3. Administration of estates—when propositions of law may not properly he submitted. Where the question in proceedings on an administrator’s report is whether certain additional attorney’s fees should be allowed, the question is not one upon which propositions of law may properly be submitted.
    Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    Hogan & Wallace, for appellant.
    Taylor & Taylor and W. B. McBride, for appellees.
   Mr. Justice Phtlbrick

delivered the opinion of the court.

This appeal is prosecuted from the judgment of the circuit court of Christian county in the estate of George Jester, deceased, upon the final report filed by the administrator, to which objections were filed by the heirs. Appellant, as administrator of the estate, filed his final report in the county court. Prom the action of the county court an appeal was taken to the circuit court, where the objections to the report were again considered on appeal. This appeal is only prosecuted from the judgment of the court, upon the question of allowing an attorney’s fee to the administrator for Hogan and Wallace as attorneys for services claimed to have been performed by them for the administrator. The question of this attorneys ’ fee was not raised in the county court, but after the appeal to the circuit court the administrator, upon the consideration of the final report, asked the court to allow to be included in the report an attorneys’ fee of one hundred dollars. This sum was asked as additional compensation to the service which had before that time been allowed in the county court. This item of attorneys ’ fees does not appear to have been recited in the final report as made to the county court. The circuit court denied this motion and approved the report and ordered a final distribution. Thereafter, appellant filed in the circuit court what purported to be a supplemental report, the only additional item in this report was these attorneys’ fees. Objections were filed to the so-called supplemental report and were sustained by the circuit icourt; and it is from that judgment in refusing to allow appellant the additional one hundred dollars for attorneys ’ fees that this appeal is prosecuted.

It is insisted by appellees that by making the motion for the allowance of this additional attorneys’ fees at the time of the hearing upon the final report, and the court having passed upon that question on that motion and finally determined-it in that hearing, that the question now is one of res adjudicata, and appellant is bound by the action of the circuit court upon his motion from which no appeal was taken.

Appellant, on the other hand, insists that because the item for this attorneys’ fee was not actually written in the report, upon the final report which was passed upon by the court, but was heard by the court only upon motion, that it was not properly before the court for determination.

We are of the opinion that when appellant submitted this question to the circuit court upon motion and the court finally passed upon that motion and rejected the claim for the allowance of one hundred dollars as adT ditional attorneys’ fees, that that was a final adjudication of that matter, and that the question cannot be again raised by filing a so-called supplemental report with only this item additional therein. Whether the trial court arrived at this judgment by reason of holding that the question was res adjudicata we are not informed, and we hold that it is immaterial by what process of reasoning the trial court arrived at this judgment, if the judgment is correct, it must be sustained. The trial court heard the evidence upon this question, and we are not prepared to say that its judgment is not correct, and we are therefore not inclined to disturb it.

It is insisted that the trial court erred upon propositions of law submitted to it by appellant; it is sufficient to say upon this contention that this is not a question upon which propositions of law may properly be submitted to the trial co'urt to be passed upon by it. Propositions of law or fact are only proper to be submitted to the trial court where if the matter was not submitted to the court without a jury the parties would be entitled to a jury trial; this case is not of that character and the question of the action of the trial court upon the propositions of law will not be considered by this court.

The judgment is affirmed.

Affirmed.


text:
    George Schultz, Appellee, v. The Burnwell Coal Company, Appellant.
    1. Mines and minees—expert testimony. Expert testimony as to whether timbering in .a mine where an accident occurred was proper, and as to the probable result of Bring shots near such timbering is admissible, where the mine was examined as required by statute and it is alleged that the dangerous condition was created by shots fired after plaintiff proceeded with the mining of coal at the place of the accident.
    2. Mines and miners—when no recovery for injuries. If a mine is properly examined and is found in a safe condition, and a dangerous condition which causes an injury to a miner, arises by reason of the progress of the work of such miner while he is performing his duties, no recovery can be had.
    3. Mines and minees—what instruction erroneous. An instruction in an action by a miner for injuries is erroneous where it directs a verdict for plaintiff but ignores the defense made by defendant, that the mine was properly examined and was found in a safe condition, and the dangerous condition which caused the injury to plaintiff arose by reason of the progress of the work while plaintiff was performing his duties.
    4. Instructions—directing verdict. An instruction which directs a verdict must contain all the elements necessary to permit a recovery.
    5. Mines and miners—remedies for accidents happening under Act of 1897 preserved. An action may be maintained for a violation of the Act of 1897 concerning mines and miners in -force at the time of an accident even if the act, as revised in 1911, does not preserve a remedy for accidents which happened under the former act.
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed March 18, 1913.
    Hill & Burlington and Guy C. Lane, for appellant.
    McQuigg & Dowell, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Plaintiff sued defendant to recover for injuries sustained while employed by defendant as a coal miner. The declaration has but two counts, which allege wilful violation of the statute concerning mines and miners. The first count charges that while plaintiff and his buddy were working in room 12 of the fourth north entry of defendant’s mine, it was the duty of the defendant to have had plaintiff’s working place examined daily by its mine examiner and to inscribe on the walls of plaintiff’s working place with chalk the month and day of the month of the mine examiner’s visit; that, disregarding this duty, defendant failed to examine plaintiff’s working place and to inscribe on the wall the day and month of his visit; and that plaintiff was permitted to enter the mine and work when his working place was in a dangerous and unsafe condition, and that by means thereof a large quantity of rock and slate fell upon plaintiff and injured him.

The second count contains the same averments as to time, date and place of the injury, and that it was the duty of defendant to have this working place examined daily by its mine examiner, and when a dangerous condition was found to mark the dangerous condition with a conspicuous mark as a notice for all men to keep out and to report his finding to the mine manager and to permit no one to enter the mines therein except under the direction of the mine manager, until all such conditions had been made safe; that in plaintiff’s working place there was a dangerous condition consisting of loose rock and slate in the roof and that the place was inadequately and insufficiently supported, that the timbers were too short, and that by reason thereof plaintiff’s place of working should have been marked and reported as dangerous, but that defendant did not cause the said working place to be examined daily by its mine examiner, that the mine examiner did not examine said place and inscribe on the walls thereof the day and month of his visit or make a conspicuous mark indicating the dangerous place, and that while said condition existed, plaintiff being permitted to enter said mine when his working place was unsafe and insecure, that that neglect on the part of the defendant was a wilful violation of the statute.

Plaintiff recovered a judgment against defednant for fifteen hundred dollars, from which this appeal is prosecuted.

The record discloses that plaintiff and his buddy, one Joe Ambrose, were employed on the 8th of December, 1910, by defendant, that they were directed to turn a new room known as number 12 off from the east side of the fourth north entry. The neck of this room was constructed about twelve feet wide at the bottom, narrowing at the top. The fourth north entry was timbered so as to leave a space of about two feet between the props and the face of the entry. It was necessary for plaintiff and his buddy to load the first three or four cars from the entry before a switch could be laid into the room. They had cut the neck of the room back about six feet where they encountered a vein of coal about eight feet thick. The entry and neck of the room were timbered with one, set on the side next to the room neck, the other on the passage side of the entry, with a bar from one over to the other, the others were set out from the rib two or three feet. On the 9th of December, when plaintiff and his buddy-returned to work, they undermined a vein of coal some two or three feet and boring the necessary holes placed therein a charge of eighteen inches of powder. After this shot had been placed, it was fired, at about one o’clock of the morning of the 10th. Plaintiff and his buddy fearing the result of the shot, retreated some thirty or forty feet. The result of the shot was to loosen or knock down a large quantity of this coal and plaintiff and his buddy proceeded at once to load it into the cars. It required about forty minutes to load the first car with six or seven tons of coal. They commenced loading the second car and after having continued at this for about thirty minutes, a portion of the roof, slate and rock, fell and injured plaintiff.

Owing to the fact that this judgment must be reversed and a new trial had by reason of the error of the trial court in the admission and rejection of evidence, and by reason of erroneous instructions given, we refrain from entering into any discussion or passing upon the merits of this case upon the facts.

The Miners’ Act at the time of this accident required that the mine should be examined by the mine examiner before permitting anyone to enter and work each day; the law at that time required but one examination during the twenty-four hours, and there is no serious contention in this case, and can be none, but what this mine was examined by the mine examiner during the night of the 8th and morning of the 9th of December, before plaintiff and his buddy were permitted to enter the mine. Plaintiff went to work about ten or eleven o’clock at night, and his hours were until six o’clock the next morning.

There is no contention that the entry and neck had not been provided with props for the purpose of protecting the roof, and the record shows that the props and cross-bars were placed in this neck and entry before the shot was- fired on the night of the. 9th. or the morning of the" 10th by plaintiff and his buddy, and the condition of these props was permitted to be shown upon the trial. The mine examiner testified to having examined this mine and the day and month of his visit was inscribed upon the walls", and at the time of the examination no dangerous condition existed, and it was the contention of defendant that the dangerous condition was created by the firing of the shot after plaintiff and his buddy had proceeded with the mining of the coal in their working place; that if an injury occurred by reason of the dangerous condition being created by reason of the progress of the work of plaintiff and his buddy, defendant is not liable; this rule has been held in Layman v. Penwell Mining Co., 142 Ill. App. 580, and Missouri & I. Coal Co. v. Schwalb, 74 Ill. App. 567.

Mining is a business with which the ordinary individual is seldom familiar, and a jury of miners in the trial of this character of case is almost an impossibility, and while it is true that expert testimony is not permissible ordinarily for the purpose of showing whether a condition was safe or dangerous, as that is the ultimate question to.be determined by the jury, but where the character of the work or the conditions are such that it requires explanation of the means and methods of conducting the business or carrying on the same or the exercising of precautions therefor, for the purpose of enlightening the jury upon those questions pertaining to the operation of mines, it becomes necessary to permit the use of expert testimony to explain these conditions and circumstances to the jury, and it is always proper to do so. The opinion of an expert miner as to the effects, of the firing of shots, upon these props and the conditions surrounding them was proper. The expert testimony offered on behalf of the defendant should have been admitted. Hamilton v. Spring Valley Coal Co., 149 Ill. App. 10; Donk Bros. Coal & Coke Co. v. Stroff, 200 Ill. 483; Henrietta Coal Co. v. Campbell, 211 Ill. 216; Kellyville Coal Co. v. Strine, 217 Ill. 516.

While it was not proper for experts to testify as to whether conditions were safe or dangerous, it was proper for them to show whether the timbering was proper, and what would be the probable result of firing the shots shown by the record.

Instruction No. 2 given on behalf of the plaintiff is erroneous in utterly ignoring the defense to be made by the defendant that if the mine had been properly examined and been found in a safe condition, and that the dangerous condition which caused the injury to plaintiff arose by reason of the progress of the work while plaintiff and his buddy were performing their duties, then the defendant is not liable. If such was a fact, there can be no recovery in this case, and defendant had the right to have the jury instructed and pass upon that question. This instruction directed a verdict for the plaintiff if the place was dangerous at the time and prior to the injury and defendant failed to discover such condition and mark the same, ignoring the defense that it became dangerous during the progress of the work and after an examination had been made. The rule is well settled in this state that where an instruction directs a verdict it must contain all of the elements necessary to permit a recovery. Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544; Swiercz v. Ill. Steel Co., 231 Ill. 456.

Appellant also insists that it was error to refuse instruction No. 3 offered by it. We do not think there was any error in refusing this instruction for the reason that the instruction is misleading and would have been very apt to have confused the jury on the question of contributory negligence. While it is not an instruction strictly upon the question of contributory negligence, that question is so embodied in it that it could not be clearly understood by the jury.

It is insisted by appellant that this suit cannot be maintained under the statute of 1897 which was in force at the time of the accident, for the reason that the Act concerning Mines and Miners was revised in 1911, insisting that there is no clause in the Act of 1911 preserving a remedy for an accident happening under the former statute. This contention is not maintainable for the reason that section 4, chapter 131, Hurd’s Revised Statutes, covers this question, and permits an action to be maintained.

For the reasons herein set forth, the judgment is reversed and the cause remanded.

Reversed cmd remanded.


text:
    A. C. McClurg & Company, Appellee, v. J. M. Williams, Appellant.
    1. Evidence—as to payment of other claims by defendant. Where defendant purchases' a stock of goods from his son and agrees to pay the son’s creditor’s, plaintiff; a creditor, in an action on its account may show that defendant complied with the agreement as to other creditors.
    2. Evidence—when ledger account is admissible. Where defendant purchases a stock of goods from his son and agrees to pay the son’s creditors, and plaintiff, a creditor, sues for an amount due, a ledger kept by the son is admissible in evidence and it is immaterial whether it is a book of original entry or not.
    Appeal from the Circuit Court of Moultrie county; the Hon. William Q. Cochran, Judge, presiding. Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed March 18, 1913.
    Jack, Deck & Whitfield, for appellant.
    F. J. Thompson and E. J. Miller, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

One J. B. Williams was the owner of a drug store at Windsor, Illinois. He became involved financially and was about to trade Ms business at Windsor for farm lands in Kankakee county. He was indebted to Ms father, J. M. Williams, in a sum m the neighborhood of $1,000. His stock of goods invoiced at the value of about $4,000. His father objected to the trade contemplated, and on December 27, 1909, he made a bill of sale of this stock of goods to his father, appellant heréin, for a stated consideration of $3,777. J. M. Williams immediately took possession of the stock of goods. Appellee herein was a creditor of J. B. Williams in the sum of $519.70, and the debt was due at the time of the transfer. This action is brought by appellee against appellant upon the contention that he, as a part of the consideration of the transfer to him, agreed to and did become liable to pay appellee’s claim.

The declaration contains the common counts, with special counts alleging as a part of the consideration, the promise to pay appellee’s claim.

Appellee recovered a judgment against appellant in the court below for $519.70, from which this appeal is prosecuted.

Appellant insists that there is no evidence tending .to show a promise by appellant to pay this claim, and insists that the judgment is not warranted by the evidence. He also insists that the trial court erred in admitting in evidence, over his objection, the ledger account of J. B. Williams, showing the amount due from him to appellee; also that the court erred in permitting appellee to show that J. B. Williams had paid all claims outstanding against this stock of goods ex-, cepting the one owed to appellee.

Upon the contention that there is no evidence in this record even tending to show that appellant agreed as a part of the consideration of the transfer from J. B. Williams to himself to pay this debt, we find upon examination of the record that appellant on numerous occasions stated to various witnesses who testified that tMs was a part of the agreement; grid we are fully satisfied that this record supports the contention that it was a part of the consideration by J. M. Williams that he pay the obligations of his son for the indebtedness owed by him upon this stock of goods

"Upon the contention that the court erred in admitting the ledger account of J. B. Williams, the objection made is that it was not a book of original entry and that the evidence does not show that the ledger account was correct. This was not a book in which appellee had made the entries, but was a record made by the debtor himself, and it is immaterial whether it was a book of original entry or not. It was properly admitted in evidence. If the record so made by the debtor was not correct, then it was a matter of defense for appellant to show, no contention is made concerning the amount J. B. Williams owed appellee. In the statement of facts made by appellant in his brief and argument on pages three and four he recites that J. B. Williams while the owner of the stock of merchandise became indebted to plaintiff on account of merchandise sold and delivered to him at various times, the balance of said indebtedness being the sum of $519.70. We are at a loss to understand why if this was not a fact appellant would include it in his statement of facts in this case, and then undertake to argue that there is no evidence of such fact.

Upon the contention that the court erred in permitting appellee over objection of appellant, to show that other claims against J. B. Williams had been paid by appellant, we are of the opinion that this evidence was properly admitted as tending to show what the contract was, and what the consideration for the transfer of this stock of goods by J. B. Williams to appellant was. While this evidence was not conclusive of that fact, it was an element tending to prove the contention of appellee and was properly admitted.

After appellant took possession of this stock oí goods he directed his clerk, Mr. Means, to write appellee for a statement of their account. Some correspondence was had between them and appellant then agreed to pay this claim if appellee would take hack a portion of the goods. This was consented to by appellee. After this agreement had been made, appellant then agreed to keep the goods which appellee had consented to take in return, and pay for them fifty cents on the dollar, and then gave to Mr. Eichards, the representative of appellee who made this settlement, a check for the amount supposed to be due according to this settlement; but after the giving of the check appellant insisted there had been an overcharge of $13.75 for a mirror, and this was not deducted from the amount. Mr. Eichards, after receiving the check, went to the depot, where after about an hour had elapsed, appellant came to him and insisted that Eichards had got the best of him by $13.75 overcharge on the mirror, and also insisted that he should have six per cent, off for cash. By reason of the dispute which arose over this matter, the check was returned to appellant. Appellant declined to make payment of the account thereafter. The record also discloses that on one occasion appellant informed an attorney who had this account for collection that the reason he had not paid it was because of an error in the account.

We are fully satisfied that there was no error of the court in its rulings upon the admission of evidence. Complaint is also made of the instructions given, but from a careful examination of these instructions, and the legal propositions involved in this controversy, we are satisfied that the jury was properly instructed and there was no error in the giving and refusing of instructions and that there is no error in this record, and the judgment will be affirmed.

Affirmed.