text:
    James Farrell v. John Dooley.
    1. Contract—DiWebence as to price.—Where the parties honestly differed as to the contract price for services and the contract had been executed. Held, proper to permit the party performing the labor to prove what his services were reasonably worth.
    2. Newly discovered evidence.—Where newly discovered evidence is not cumulative, and it does not appear what, if any, diligence has been used to discover it before the trial, it is not sufficient ground for a new "trial.

      Error to the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed October 5, 1885.
    Messrs. Tipton, Karr & Pike, for plaintiff in error;
    that an implied contract can not arise where there is a subsisting express contract conveying the entire matter, cited Ford v. McVay, 55 Ill. 122; Walker v. Brown, 28 Ill. 378; Compton v. Payne, 69 Ill. 355; Phelps v. Hubbard, 59 Ill. 81.
    Messrs. Welty & Sterling, for defendant in error;
    that if one party understood the contract to be one way and the other another way, there was no meeting of the minds of the parties, and therefore no express contract, cited Taylor et al. v. Webster, 24 Kansas, 38; Phillips v. Roberts, 90 Illinois, 492; 1 Parsons on Contracts, 389; Davidson v. Porter, 57 Ill. 300.
   Wall, P. J.

This was an action of assumpsit upon an account, mainly for services rendered by the plaintiff to the defendant. There was a verdict for plaintiff for $326, of which $18.75 was remitted, and the court, overruling a motion for a new trial, rendered judgment for the residue, $307.25. That the plaintiff rendered valuable service to the defendant is not questioned, but there is conflict as to the compensation to be made therefor; the one insisting that it was agreed upon at $20 per month, and the other that it was fixed at $150 per year. The court, in this state of the case, permitted the plaintiff to prove what his services were reasonably worth, and the propriety of this ruling is the legal question presented for consideration. In this ruling there was no error. Assuming that the parties honestly differed as to the contract price, then their minds did not meet upon this point, and in such cases, where the contract has been executed, the party receiving the benefit will be held for the reasonable value thereof. It would be manifestly unjust that plaintiff should receive nothing for his work, and equally so that his understanding of the terms should bind the defendant, and the law therefore awards a reasonable compensation: Turner v. Webster, 24 Kansas 38; S. C., 36 Am. Rep. 251; Parsons on Contracts, 3d Ed., Vol. 1, 299; Phillips v. Roberts, 90 Ill. 492.

There was conflict in the evidence as to other items of account between the parties, but we see no occasion to disturb the finding of the jury. ¡Newly discovered evidence was urged as ground for a new trial, but it was properly held not sufficient for that purpose because it was only cumulative, and. because it did not appear what, if any, diligence had been used to discover it before the trial.

The judgment will be affirmed.


source: Caselaw Access Project

author: Wall, P. J.

license: Public Domain

text:
    City of Virginia v. Jacob Dunaway.
    1. Chancery jurisdiction.—A court of equity will not set aside a judgment at law unless the complainant has been prevented from making his defense by fraud, accident or mistake, nor unless he has used reasonable diligence.
    2. Remedy at law.—If the court in this case erred in assuming jurisdiction, the error, if not waived or cured, could have been corrected by an appeal or writ of error, and thereby an adequate remedy was available without resort to a court of chancery, where appellate functions are not exercised.
    Error to the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding.
    Opinion filed October 5, 1885.
    Mr. A. A. Leeper, for plaintiff in error.
    Mr. W. P. Gallon, for defendant in error.
   Wall, P. J.

The defendant in error filed his bill in chancery against the plaintiff in error, alleging that at the August term, 1876, of the Circuit Court of Cass county, the plaintiff in error brought an action at law against the defendant in error, upon a pretended subscription of $500, for the purpose of erecting the present county court house, but that prior to said suit his liability to pay said subscription had been released by the plaintiff in error ; that at said August term the defendant in error brought his action at law against the plaintiff in error for services rendered, money expended, etc., and that at the special October term the whole controversy was by stipulation referred to arbitrators, and the suit first mentioned was stricken from the docket with leave to reinstate, the other case having been dismissed by the plaintiff therein. The bill further alleged that soon after the reference was made the defendant in error went temporarily to Kansas, and while he was so absent, and more than two years after the cause had been so referred, and without notice to him or to any one acting for him, the said suit was re-docketed, the order of arbitration set aside, and at the February term, 1881 the cause was tried and judgment was rendered against him for 8740 ; that the motion to set aside said reference was supported by false affidavits with regard to the action of the arbitrators, and the failure of the defendant in error to appear before the said arbitrators. The bill charged that the action of the court in resuming jurisdiction of the case and rendering judgmenttherein was fraudulent, illegal and unjust, and prayed for an order vacating the judgment and for general relief. The answer to the bill denied that the complainant had ever been released from his liability on the subscription; alleged that two of the arbitrators met for the purpose of hearing the matter referred to them, but that the complainant and the other arbitrator, though notified, did not appear, and that a second meeting was arranged with like result; that after the cause was re-docketed, the complainant, by his attorney, waived a trial by jury, and by consent the case was submitted by the court, and judgment was rendered as alleged in the bill. The cause was heard on bill, answer and proofs, and a decree was entered setting aside said judgment and reinstating the order of reference to arbitrators. The certificate of evidence upon which this decree is based contains the files and orders of the suit at law as stated in the bill and answer, and the affidavits of Whitlock & Tinney in support of the motion ; an order allowing the defendant in that suit to file an additional plea, which was held bad on demurrer; an order showing that the parties waived a jury and 'agreed to try the cause by the court; the judgment at the February term, 1881, and a stipulation of facts by the parties, to the effect that arbitrators, naming them, were appointed by the court as alleged in the bill, and that two of them went to the county seat for the purpose of hearing the case ; that the third arbitrator, the complainant, Dunaway, and his attorney, were absent, though the two latter were notified, and the arbitrators never did convene as a board, and that Dunaway was absent from the State for the length of time set out in the 'answer, viz., about three years.

Error is assigned upon this decree.

A court of equity will not set aside a judgment at law, unless the complainant has been prevented from making his defense by fraud, accident or mistake, nor unless he has used reasonble diligence. Allen v. Smith, 72 Ill. 331.

If the action of the court complained of is subject to review in an appellate tribunal, the remedy at law is complete, and there is no occasion to resort to a court of equity. Bell v. Gardner, 77 Ill. 319. A court of equity will not enjoin a judgment at law merely on the ground of a want of jurisdiction of the defendant, but it must appear also that the defendant did not owe the plaintiff, and that on another trial a different result would be obtained. The right to enjoin is because that which is claimed to be owed is in equity not owed, and not because of the form it is made to assume.” Colson v. Leitch, 110 Ill. 504. In the case last cited the Supreme Court quote the statute, Ch. 69, Sec. 7, which provides that only so much of any judgment at law shall be enjoined as the complainant shall show himself equitably not bound to pay, and so much as shall be sufficient to cover cost,” as conclusive against the claim then under consideration. In the case before us there is an utter want of proof that the complainant did not equitably owe the amount of the judgment in question. It was alleged in the bill that he had been released from liability upon the subscription, but this was denied by the answer, and there is no testimony in support of the allegation. Sprague v. Lux, 12 Bradwell, 271. 3$Tor is there any proof that there was fraud, accident or mistake upon which relief in equity can be predicated. It is not even shown that the affidavits, in support of the motion to set aside the reference and reinstate the case, are untrue. The allegation on this subject is the only charge in the bill upon which the idea of fraud can rest, and without determining whether it is sufficient as laid, it is enough to say that it is not proved. It is alleged that complainant was not aware of the proceedings after the case was referred to arbitrators. It seems, however, that his attorney of record was present when the motion to reinstate was allowed; that he subsequently asked and obtained leave to file an additional plea, and that at a later term of court he still represented the complainant, appearing for him and consenting to a trial by the court without a jury.

It is not to be presumed that this was without the authority of the complainant. On the contrary, in the absence of proof, the presumption would be that he had authority, and if so the alleged error of the court in resuming jurisdiction of the cise was waived and cured by the act of his attorney in proceeding to trial without objection.

The conduct of the complainant in regard to the case after it was referred is characterized by great indifference, if not negligence, and it would seem that if he had given the business such attention as its importance demanded, and such as a man of ordinary prudence would have given it, he could not have been ignorant of the subsequent proceedings. Finally, if it be assumed, as argued, that the court erred in resuming jurisdiction, the error, if not waived or cured, could have been corrected by an appeal or writ of error, and thereby an adequate remedy was available without resort to a court of chancery where appellate functions are not exercised.

The decree will be reversed and the cause remanded.

"Reversed and remanded.


author: Conger, J.

text:
    Charles Damon v. Charles H. Nelson.
    Vendob and vendee.—As appellee’s letter was substantially, and in fact, a declination to receive the goods back, appellant’s second instruction was proper and should have been given.
    Appeal from the Circuit Court of Cass county; the Hon. Cyrus Epleb, Judge, presiding.
    Opinion filed October 5, 1885.
    Mr. George L. Wablow, for appellant.
    Messrs. Ketcham & Gridley, for appellee.
   Conger, J.

It appears from the record that on May 3, '1884, Hugh F. "Reid, then in the boot and shoe business, at Virginia, Ill., gave an order to Jasper Nelson & Son, of North Grafton, Mass., for a bill of shoes to the amount of §167.50, on ninety days credit. The shoes were forwarded on this order, and received by Reid about Sept. 15, 1884, by him unpacked, placed in his store, and some of them sold to customers. Shortly afterward, Reid wrote to Nelson & Son, complaining that the shoes were not up to sample; that he thought the counters were shoddy, and the vamps cut too high, and that the goods were there subject to their order. Oct. 2, 1884, Nelson & Sou answered this letter, saying to Reid that he was mistaken in supposing the shoes sold not up to sample, for they were, and that Reid’s complaint was too hastily made, and was not correct. On the day this letter was written, Reid sold his entire stock of goods, including such of the shoes in question as had not been already sold, to appellant, Chas. Damon, executing to him a bill of sale and delivering possession. The goods not having been paid for, appellee’s attorney in November following presented the bill and demanded payment, but nothing so far as the record discloses, was ever paid upon it. On January 30, 1885, a suit in replevin was instituted by appellee as surviving partner of Kelson & Son, against Damon, for the recovery of the goods, and by the judgment of the circuit court he recovered all the goods not ah ready sold, from which judgment Damon appeals. Appellee bases his right of recovery upon Reid’s letter notifying Kelson & Son that the goods were not up to sample, and were subject to their order, and the further fact, that Reid sold to Damon before receiving any reply from Kelson & Son. Had Kelson & Son accepted Reid’s proposition in reference to rescinding the sale and taking the goods back, Reid would have been bound by his offer until an answer was received, or at least until a reasonable length of time had clasped for such an answer, and during such period would have had no right to sell the goods to any vendee having notice of his offer, as it appears Damon had. But the letter of Kelson & Son not only fails to accept Reid’s proposition to return the goods, but, by a fair construction of its contents, clearly declines todo so. From the time of the rece} tío i of this letter, whatever title or right of possession previo i sly existed in Kelson & Son was lost, and both title and right of possession vested in either Reid or his vendee. It is clear that Kelson & Son had no intention of regarding the goods as unsold, and still belonging to themselves, until Reid’s ability to pay for them became doubtful. It follows from what has been said that appellant’s second refused instruction was proper and should have been given. Appellee insists there was no evidence to support it, but we think Kelson & Son’s letter of October 2d was substantially and in fact a declination to receive the goods back. For the errors indicated, the cause will be reversed and remanded.

Reversed and remanded.


text:
    Daniel B. Dechert, Admr., etc. v. Indiana, Bloomington & Western Ry. Co.
    Court directing jury to find for defendant.—-Where the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. The court is of opinion that there was no error in the court below, orally directing the jury to find for the defendant.
    Error to the Circuit Court of Edgar county; the Hon. 0. B. Smith, Judge, presiding.
    Opinion filed October 5, 1885.
    Messrs. McKinlay & Anthony, for plaintiff in error.
    Mr. James A. Eads, for defendant in error.
   Conger, J.

This was an action brought by plaintiff in error as administrator of James Clancy, deceased, to recover damages for his death. The declaration alleged that on January 30, 1883, deceased went an hoard defendant’s train at Hume, Ill., as a passenger ; tha-t defendant, by its servants, wrongfully and negligently ejected the said Clancy from its train; the deceased was. at the time in a helpless condition from intoxication, and inconsequence thereof he was killed.

While there is some conflict in the evidence, we think it shows substantially that- deceased was lying drunk on the railroad platform at Hume. When the train stopped" there, two persons not connected with the railway company put him on the train.

Whether he was able to inform the conductor where he wanted to go, or to offer to pay his fare to the conductor, does not clearly appear. As the engine whistled for Metcalf, the first station east from Hume, the conductor said to Clancy, “ Ton get off here,” and passed on into another car. When the train stopped at Metcalf the brakeman attempted to put him off the train, and he seemed to be unwilling to go and said to the brakeman, “ I will pay my fare,” and in the struggle that ensued fell to the floor. The conductor at this time came in, and he and the brakeman led him out of the car, along the platform, and left him standing by and leaning against some trunks, about two feet from the edge of the platform, and turned away. Clancy in a moment after seemed to lose his balance, and fell forward, first against the car and then down between the car and platform, receiving injuries from which he died. At the time of his fall the train was standing still. Upon the motion of the defendant the court withdrew the evidence from the jury and orally instructed them to find a verdict for the defendant. This action of the court is assigned for error. The rule in such cases, according to the latest expn-ession of the Supreme Court, is : When the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.” Simmons v. C. & T. R. R. Co., 110 Ill. 349. Tested by this rule, we think there was no error in the action of the trial court.

The ground of recovery relied upon by counsel for plaintiff in error is, that the conductor recklessly and negligently placed deceased in a dangerous position, and as a result Clancy lost his life, while by placing him a few feet further from the edge of the platform no serious result could have happened.” We can not say from the evidence that it was the duty of the conductor to suprpose there was any danger in leaving Clancy where he did. The trunks against which he was leaning were certainly some protection against his falling, and it could not reasonably have been foreseen that such an accident would follow as a natural consequence of the conductor’s actions. But even conceding negligence on the part of the conductor it can not be claimed that it was willful, and to justify a recovery the piarty injured must have used ordinary care and precaution for his own safety. This he did not do, but was himself guilty of negligence in attempting to travel upon a railroad train while so drunk as to be unable to exert the necessary effort to avoid danger, or to stand upon his feet when placed upon the platform. The objection made to the court directing the jury orally to find for the defendant, is answered by the fact that as plaintiff had no good cause of action, he could not be injured by such oral direction.

Perceiving no substantial error in the record the judgment of the circuit corn't will be affirmed.

Affirmed.


text:
    Stephen S. Tunnell v. William Ferguson.
    Slander—Instruction.—In a case of slander it is competent for the defendant to establish the truth of the matter charged by a preponderance of testimony. As the instructions given were not in accordance with the above, they were erroneous. The second instruction was erroneous in that it entirely ignored the plea of justification.
    Appeal from the Circuit Court of Morgan county; the Hon. Cykus Epler, Judge, presiding.
    Opinion filed October 5, 1885.
    Mr. John A. Bellatti, for appellant.
    Mr. James M. Eplek and Mr. E. G. Wilson, for appellee.
   Conger, J.

This was an action of slander. The first and second counts charged appellant with perjury, and the third with larceny. Pleas of not guilty and of justification filed, trial and verdict against appellant for §1,250.

Several errors are assigned, but it is only necessary to notice those assigned upon the giving of appellee’s 1st, 3d, and 5th instructions. By the 1st instruction the jury were told that if the defendant pleads justification, he must prove the facts constituting his plea of justification beyond a reasonable doubt. That is, the same testimony that would be required to convict the plaintiff criminally charged with the crime, must be adduced by the defendant or otherwise, else the plea of justification is not available.” The 5th instruction is in substance the same. This was error. While the Supreme Court did atone time hold the above doctrine, it has been since changed by statute; see Sec. 3, Chap. 126, act in force July 1,1871. By that section it is declared that “it shall be competent for the defendant to establish the truth of the matter charged by a preponderance of testimony.”

Nothing, we think, can be plainer than that these instructions are in direct conflict with the statute.

The 3d instruction is as follows: “ The court instructs the jury for the plaintiff, that if you find from a preponderance of the evidence in the case that the defendant spoke and published of the plaintiff the words as alleged in the plaintiff’s declaration, you should find for the plaintiff, and assess his damages at such sum as the evidence may show him entitled to.”

This instruction entirely ignores the plea of justification, and although the jury may have believed the plea of justification, yet they are told if the words were spoken they must find for the plaintiff.

For these errors this case must be reversed.

Reversed and remanded.


text:
    John Powers v. Thomas Cavenaugh.
    Verdict undisturbed.—Where the evidence is conflicting and the jury-are properly instructed as to the law of the case, their verdict must be regarded as settling the controverted fact.
    Appeal from the Circuit Court of Mason county; the Hon. Lyman Lacey, Judge, presiding.
    Opinion filed October 5, 1885.

      Messrs. Bbown & Weight, for appellant.
    Mr. Gf. W. Ellsbebby and Mr. T. H. Mehan, for appellee.
   Conger, J.

This was an action originally commenced before a justice, by Powers against Cavenaugh, to recover upon an account for rent and other matters, where he recovered a judgment of $97. Upon appeal to the circuit court, Cavenaugh recovered a verdict against Powers of $77, which was reduced by a remittitur to $68, upon which judgment was entered, and from which Powers appeals. dSTo complaint is made of the instructions, but it is insisted that the verdict is so manifestly against the weight of evidence that it became the duty of the trial court to set aside the verdict and award a new trial. We have examined the evidence and f nd that it is conflicting; so much so that the jury would have been warranted in finding a verdict for either, as they might give the greater weight and credence to the respective witnesses of the contending parties. In such a case it is clear that the finding of the jury should not be disturbed. They have the superior advantage of seeing and hearing the witnesses and observing their demeanor upon the stand, and when properly instructed as to the law of the case, their verdict must be regarded as settling the controverted facts. Kightlinger v. Eagan, 75 Ill. 141; Hewitt v. Estelle, 92 Ill. 218; C., B. & Q. Ry. Co. v. Olson, 12 Bradwell, 245.

The case will be affirmed.

Affirmed.


text:
    Fred E. Schweer, use, etc., v. H. Schwabacher et al.
    Replevin—Damages.—In suit on replevin bond, where the original replevin suit is dismissed without a trial of the merits, and retorno ordered, a failure to return the property in accordance with the judgment of the court constitutes a breach of the replevin bond, for which the obligee will be entitled to recover nominal damages and costs.

      Appeal from the Circuit Court of Cass county; the Hon. Cybtts Epleb, Judge, presiding.
    Opinion filed October 5, 1885
    Mr. Milton McClure, for appellant.
    Messrs. Hewitt & Shacker, for appellees.
   Conger, J.

On March 27, 1884, Henry C. Koness was indebted to H. and J. Schwabacher in the sum of §228.76, and, to secure the same, executed a chattel mortgage to them, mortgaging certain personal property then owned by him and in his possession. Said mortgage, properly acknowledged, was duly recorded on the 28tlx of March, 1884. On the 23d of April, 1884, Anna Mohlman, as administratrix of the estate of Henry Mohlman, obtained judgment before a justice of the peace against Koness for §103, and an execution immediately issued thereon and wras delivered to Ira Crow, constable, who levied the same on the mortgaged property advertised, and was proceeding to sell the same. The mortgage contained the usual insecurity clause, and before the sale the Schwabachers, claiming the ownership and possession of the property under the chattel mortgage, sued out, before a justice of the peace, a replevin writ against Crow, placing the same in the hands of Sehweer, constable, to execute, and at the same time executed to Sehweer the replevin bond sued on in this case. Sehweer executed the writ and delivered the property levied upon, and the same was mortgaged to Schwabachers, who sold the same for §92.50.

Hpon the trial of the replevin suit before the justice, judgment was rendered against Crow, defendant, and he appealed to the Circuit Court of Cass county. At the August term, 1884, of the circuit court, a jury was called to try the case, and before the jury retired to consider their verdict, Schwabachers dismissed their suit, and a writ of retorno was ordered. On the 29th of October, 1884, suit was brought before Geo. Yolkmar, J. P., on the replevin bond in favor of Sehweer for use of Mohlman, administratrix, etc., and judgment rendered against Kyan and Ellwood, securities on the bond, and the only parties served, for 8105 and costs; Eyan and Ellwood appealed to the circuit court where the appearance of the Schwabachers was entered, and who c'aimed the property under the chattel mortgage, and insisting that the merits of the case, as to who was entitled to the property, were not tried and determined at the August term, 1884, were permitted to try that question in this case, which, being tried by the court without a jury, judgment was rendered against the plaintiff in bar and for costs, and plaintiff appeals.

Upon the trial in the court below appellant objected to the introduction by appellees of their note and chattel mortgage upon two grounds.

First, that the merits of the case had been determined in the trial of the replevin suit. Secondly, that the note offered in evidence was fraudulent. Ueither of these objections was well taken. The replevin suit having been dismissed before the jury retired to consider of their verdict, it was the duty of the court to render judgment against the plaintiffs in such suit for a return of the property as a necessary consequence of the dismissal, but the merits of the case as to the ownership of the property would not thereby be determined. Sec. 22, Chap. 119, R. S.

The second objection is based upon the fact as claimed, that the note secured by the chattel mortgage was not executed until some time after the making of the mortgage. The evidence shows an actual bona fide indebtedness at the time of the execution of the mortgage, which is clearly defined in the mortgage as to amount and date of payment. This was enough. A mortgage is good without any note. If a bona fide debt exists, and is sufficiently described in the mortgage to protect creditors and third parties from being misled, it is sufficient. Jones on Mort., Vol. 1, Sec. 353.

But the court erred in rendering judgment against appellant. He was clearly entitled to a judgment for nominal damages and costs. The dismissal of the replevin suit and failure to return the property in accordance with the judgment of the court, constituted a breach of the replevin bond, for which the obligee would be entitled to recover nominal damages. Chinn v. McCoy, 19 Ill. 604; Stevison v. Earnst, 80 Ill. 513; Rankin v. Kinsey, 7 Bradwell, 215. For this error the cause will be reversed and remanded.

Beversed and remanded.


author: Wilson, P. J.

text:
    Mary Tobin v. The Chicago City Railway Co.
    1. Evidence—Contradiction oe witness.—The general rule that when a party produces a witness in proof of his cause, he thereby represents him as worthy of belief, and the law will not permit the party calling him to afterward impeach his general reputation for truth nor impugn his credibility by general evidence tending to show him unworthy of belief, does not preclude the party from proving the truth of any particular fact by other competent testimony, though in direct contradiction of what such witness may have testified, and though the evidence may collaterally have the effect of showing that he was generally unworthy of belief.
    2. Same.—The rule which excludes all evidence tending to contradict the statements of a witness as to collateral matters, does not apply to any facts immediately and properly connected with the main subject of inquiry. The court is of opinion that the alleged statements made by the plaintiff to the witness can not be regarded as being upon a merely collateral inquiry.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed May 20, 1885.
    Messrs. Dent, Black & Chatty Bkothers, for appellant;
    as to evidence, cited Lockwood v. Poundstone, 38 Ill. 198; 2 Phillips on Evidence, 448; 1 Greenleaf on Evidence, §§ 443-4; Friedlander v. London Assurance Co., 4 B. & A. (24 E. C. L.) 193; Alexander v. Gibson, 2 Camp. 555.

      Messrs. Hynes, English & Dunne, for appellee;
    cited Griffin v. Wall, 32 Ala. 149; 1 Greenleaf on Evidence, § 444a; Chamberlain v. Lands, 27 Me. 458; 2 Phillips on Evidence, Part I, p. 780; Bullard v. Pearsall, 53 N. Y. 230; Adams v. Wheeler, 97 Mass. 67; People v. Safford, 5 Denio, 118; Sumner v. Crawford, 45 N. H. 416; Dewey v. Williams, 43 N. H. 384; Smith v. Henry, 2 Bailey (S. C.) 118; Dozier v. Joyce, 8 Post (Ala.), 303; Ortez v. Jewett, 23 Ala. 662; Commonwealth v. Buzzell, 16 Pick. 153; Derby v. Gallup, 5 Minn. 119; Harris v. Wilson, 7 Wend. (N. Y.) 57; Powers v. Leach, 26 Vt. 270; McDowell v. Gen. Ins. Co., 10 La. Ann. 16; Griffin v. City of Chicago, 57 Ill. 317; Coulter v. Express Co., 56 N. Y. 588; C., R. I. & P. Ry. Co. v. Bell, 70 Ill. 104.
   Wilson, P. J.

This was an action on the case brought by appellant, Mary Tobin, against the Chicago City Bailway Company, to recover for personal injuries occasioned by the alleged negligent management of the defendant’s street car, on which the plaintiff was a passenger. The claim of the plaintiff, as set out in her declaration, is, in substance, that desiring to alight from the car she signaled the conductor to stop, which he did, but that as she was in the act of getting off, the conductor caused the car to suddenly start, whereby she was thrown upon the ground and received the injury complained of. The plaintiff introduced evidence tending to support a cause of action as alleged, but the jury found for the defendant company, and the plaintiff appealed to this court.

The principal question presented arises upon the action of the court below in rejecting certain evidence offered by the plaintiff. It appears that the plaintiff called as a witness, one Charles P. Caldwell, the physician who attended the plaintiff immediately after the accident. After testifying to the condition in which he found her, and the nature and extent of her injuries, the following question was asked by the plaintiff’s counsel: “What was stated to you as being the cause of the trouble she had ? ” to which he answered, “ She said that when she got on the car she notified the conductor to let her off at F street; and when she came to F street, she said the conductor was in the front part of the car, looking at the car-ahead that had met with some accident, and she got ofi herself, and fell Off the car, I believe, or got off while it was going, and the conductor did not see her even then, did not stop the car, or did not seem to pay any attention to whether she was hurt or not.” Upon cross-examination, in reply to questions put to the witness by the defendant’s counsel, he repeated, with some additional details, the statements made by the plaintiff substantially as above set forth.

The plaintiff being taken by • surprise at this testimony, offered to prove by her daughter, who was present, and heard the conversation, and also by the plaintiff herself, that no such conversation took place, but that, on the contrary, what the plaintiff said was, that the car had stopped; that she attempted to get off; that the car started when she was in the act of dismounting, and by that means she was thrown down and injured. This evidence the court refused to receive, and the plaintiff excepted.

The general rule is that when a party produces a witness in proof of his cause, he thereby represents him as worthy of belief, and the law will not permit the party calling him to afterward impeach 1ns general reputation for truth, nor impugn his credibility, by general evidence tending to show him unworthy of belief. But this rule does not preclude the party from proving the truth of any particular fact by other competent testimony, though in direct contradiction of what such witness may have testified, and though the evidence may collaterally have the effect of showing that he was generally unworthy of belief. 1 Greenl. Ev., sections 442-3; 2d Phil. Ev. 448; Lookwood v. Poundstone, 38 Ill. 198, in which the court said: “ A party may not discredit his own witness by general evidence, the meaning of which is, that a party, after producing and examining a witness, can not prove him to be of such general bad character as would render him unworthy of credit, but that he is bound by such testimony is not the law.” See also Alexander v. Gibson, 2 Campb. 556; Ewer v. Ambrose, 3 Barn. & Cress. 746; Bradley v. Ricards, 8 Bingh. 57.

But it is insisted by appellee that the testimony of Dr. Caldwell, which the plaintiff sought to contradict, related to a matter that was only collateral to the main issue to be tried, and that as to such testimony, the party calling it out is not permitted to disprove it. It may be conceded that where a party calls for answer as to a matter which is wholly and only collateral, and which does not bear upon the main issue to be tried, he is not allowed to disprove it. It is to be observed-however, in respect to the present case, first, that the witness was not asked to give the plaintiff’s narrative of the detail; as to the manner in which the accident happened, but only a; to the cause of the injury. Instead of replying generally that it was attributed to a fall from a street car, the witness proceeded to relate the entire conversation. The plaintiff, it is true, did not disavow or repudiate the testimony in express words, but she did what was equivalent to it, by objecting to the testimony when called for by the defendant on cross-examination, and by an explicit offer to disprove it by other witnesses. Alexander v. Gibson, 2 Campb. 555.

In the next place, we do not think the testimony of Dr„ Caldwell in relation to the declarations of the plaintiff is to be regarded as bearing solely upon a question collateral to the main issue.

The plaintiff’s declaration alleges that she was in the exercise of due care and caution at the time of receiving the injury, and this was an essential part of the issue which the jury had to try. The plaintiff’s account of the occurrence, as related by Dr. Caldwell, bore directly upon the question of her care and caution, as well as upon that of the defendant’s negligence. His testimony, if believed by the jury, would almost necessarily be fatal to the plaintiff’s case, by showing that the injury resulted from her own imprudence and want of care. In a note to 1 Greenl. Ev., thirteenth edition, 449, it is said: “The rule which excludes all evidence tending to contradict the statements of a witness as to collateral matters does not apply to any facts immediately and properly connected with the main subject of inquiry.”

In Melhuish v. Collier, 5 Ad. & El. N. S. 378, where a witness produced by the plaintiff denied a fact material to the plaintiff’s cause of action, and stated that persons connected with the plaintiff had offered him money to assert the fact, it was held that the plaintiff might not only go on and prove the fact by other witnesses, but might also disprove the subornation, for this latter fact had now become relevant.

In Friedlander v. London Assurance Co., 4 Bar. & Adol. 193, the action was covenant to recover on a fee policy. At the trial the plaintiff called a witness to prove that the latter had sold, certain goods to the plaintiff before the fire, and had sent him an invoice and letter -from Edinburg, relating to the goods. The witness admitted that he wrote the invoice, but denied that he ever sent the goods, and said the letter was in fact written in London, at the plaintiff’s house and by his desire; and that the plaintiff’s son and shopman had persuaded him to say he had sent the goods. At the trial L01'd Tenterden rejected evidence offered by the plaintiff in contradiction of his own witness, and the jury found for the defendant. All the judges concurred in awarding a new trial, Patterson, J., saying, “ The law is clear, but there is a good deal of difficulty in its application. I had a doubt at first whether the plaintiff’s son and shopman could be called to contradict a witness who stated that the invoice had been fabricated by him in their presence, and that they had persuaded him to say that the goods were sent conformably to the letter and invoice. It struck me that this would have been offering evidence on a collateral point. But I am satisfied that the evidence on these facts was admissible, on the ground that they were not collateral, but material to the issue; and the genuineness of the letter was clearly a material question in the case.” See also Alexander v. Gibson, supra.

In the light of the authorities referred to, as well as upon principle, we are of opinion that the statements made by the plaintiff to Dr. Caldwell can not be regarded as being upon a merely collateral inquiry. They related to and bore directly upon the main issue in the case, and so were material and pertinent. In so far as her relation of the occurrence was only a narrative of past events, it might not have been admissible in evidence had it been objected to, but no objection to it was made, and it went before the jury. If the account of the accident which the witness puts in the plaintiff’s mouth be true, she is not entitled to recover, and to deny her the right to contradict him and show the truth, if he stated falsely, would be contrary to sound reason and the principles of justice. That the plaintiff was taken by surprise at the testimony of Dr. Caldwell would seem to require no other proof than the nature of the evidence itself; for it is not to be supposed that a party would voluntarily call a witness to testify to a state of facts which would necessarily prove fatal to his case.

For the reasons indicated the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Bailey P. J.

text:
    R. H. Kelly v. Ezra G. Valentine.
    1. Sufficiency of declaration.—The court is of opinion that the declaration is sufficient, especially after verdict, with such intendments in its favor as must, be indulged in.
    2. Measure of damages.—The measure of damages in an action on the case for fraud and deceit in ease of a sale is not one of compensation merely, but exemplary damages may be given.
    Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed October 22, 1885.
    Mr. Frank Baker, for plaintiff in error.
    Messrs. Flower, Remy & Gregory and Mr. H. 11. Tenney for defendant in error.
   Bailey P. J.

This was an action on the case, brought by Valentine against Kelly, Thomson, Oviatt and Southworth, to recover damages for fraud and deceit in the sale by the defendants to the plaintiff of five hundred shares of the stock of an alleged incorporated company, called the Ruby Land and Mining Company. The plaintiff subsequently dismissed his suit as to Oviatt and Southworth, and on trial the jury found the defendants guilty, and assessed the plaintiff’s damages at §1,500, for which sum and costs the plaintiff had judgment. The record contains no bill of exceptions, consequently no portion of the evidence, and none of the rulings of the court at the trial are before us. The only question raised is as to the sufficiency of the declaration to sustain the verdict.

But two points are made, viz.: 1, that the declaration is not sufficient to warrant any recovery, and 2, that the damages are larger than the plaintiff is entitled to recover under the averments of the declaration.

We think the declaration is sufficient, especially after verdict. The objection urged is, that the representations set out, and which are alleged to have been false and to have been relied upon by the plaintiff, were immaterial,, or were mere matters of opinion. In this we think counsel is in error. They were, with the exception of some few matters which may he disregarded, representations of matters of fact which were material, and which were well calculated, in a transaction like the one in question, to deceive and mislead the plaintiff. The sufficiency of the declaration was not questioned by demurrer, and now, after verdict, with such intendments in its favor as must be indulged in, we see no tenable ground of objection to it.

As to the other point raised, it is true the averments of the declaration do not show an amount of actual damages equal to the verdict. It is alleged that the shares of stock purchased by the plaintiff were nearly or quite worthless, and that he paid therefor §300 in money, and four checks on the First National Bank of Chicago, payable to the order of Kelly, one for §500, one for §200 and two for §250 each, and that said §500 check was paid to Kelly by the bank in cash. Nothing is alleged as to what had become of the three remaining cheeks, nor is it shown that they were ever paid, or that the plaintiff ever had money in the bank to pay them. So far as appears, those checks still remain in Kelly’s hands unpaid and unpresented. It is difficult to see how the plaintiff’s actual damages, as shown by the declaration, can exceed 8800. If, then, the plaintiff must be confined in this case to actual compensatory damages, the verdict is manifestly too large.

We cannot say, however, that he was not entitled to exemplary damages. The declaration charges the defendants with conspiring and agreeing together, with the fraudulent intent, wrongfully and wickedly to obtain money and other property from the plaintiff by false pretenses, and in pursuance of such conspiracy and agreement, with such wrongful and wicked intent, requesting the plaintiff to purchase of said Kelly said shares of stock, making to him in relation thereto the said false and fraudulent representations, and thereby inducing him to purchase said stock.

As the evidence is not before us, it will be presumed in support of the verdict that all evidence which would be admissible under these averments was received, and before we can hold that the jury were not warranted in awarding exemplary damages, we must hold that no possible case could have been made under the pleadings which would authorize such, damages. In other words, it must be held as a matter of law, that exemplary damages are never recoverable in cases of willful and deliberate fraud, followed by actual damage.

The only case to which we are referred in which it is held that the measure of damages in cases of fraxtd is one of compensation merely, and not punitive, is Lane v. Wilcox, 55 Barb. 615. This was a decision of an intermediate appellate court, and we have, on the other hand, several decisions of courts of last resort, where the contrary doctrine is held. Thus, Plat v. Brown, 30 Conn. 336, was an action on the case for false warranty and deceit in the sale of a horse, and the court held, that in actions of this sort, where the plaintiff recovers on the ground that he has been made the victim of gross and willful fraud, the jury are at liberty to give, and the coarse of our decision has been rather to encourage them in giving, what are sometimes called vindictive or exemplary damages.” In the ease of Oliver v. Chapman, 15 Texas, 400, which seems to have been an action for fraud and deceit in procuring a conveyance from the plaintiff of certain lands, the court say: “ It has been settled by the repeated decisions of this court, that in actions of this nature the jury may give exemplary damages.” So in Nye v. Merriam, 35 Vt. 438, it is held that exemplary damages are allowable in an action on the case for deceit, when the evidence tends to show that the defendant willfully proposed to deceive and defraud the plaintiff. See, also, Bryam v. McGuire, 3 Head, 529; 3 Sutherland on Damages, 598.

The preponderance of authority seems to be in favor of allowing the recovery of such damages in cases of this character, and in the absence of the evidence, we are unable to say that the damages awarded by the jury are excessive.

As we find no error in the record the judgment will be affirmed.

Judgment affirmed.


author: Bailey, P. J.

text:
    Levi C. Merrick et al. v. Alvin Hulbert.
    Chancery—Presumption op payment.—The mere absence of the coupon interest note in this case, unaccounted for, raises a prima facie presumption of payment, and especially is this true as against a holder who, though a party to the proceeding, asserts no rights and suffers himself to be defaulted for want of an answer. The decree should therefore be modified by striking out the amount found to be due K. on the coupon interest note. (Merrick v. Hulbert, 15 Bradwell, 606.)
    Appeal from the Superior Court of Cook county; the Hon. George H. Gardner, Judge, presiding.
    Opinion filed October 22, 1885.
    Mr. J. D. Wallace, for appellants.
    Messrs. Millard & Smith, for appellee.
   Bailey, P. J.

This case was before this court on appeal at the October term, 1884, at which time a decree in favor of Hulbert, the complainant, was reversed. Merrick v, Hulbert, 15 Bradwell, 606. A rehearing has been had in the court below upon the same evidence contained in the former record, and a decree rendered in favor of the complainant, in conformity with the principles laid down in our former decision, so far as we then had occasion to express an opinion. Certain questions relating to the first interest coupon, which did (not arise upon the former appeal, are now presented, and constitute the only matter in the case now open for discussion in this court.

It will be remembered that at the time of the assignment of the notes and deed of trust from Keogh to the complainant^ the first interest coupon was overdue, and that ujion assigning the principal note with the coupon notes not due to the complainant, the overdue coupon was retained by Keogh. The bill alleges an agreement that the coupon so retained should be postponed to the principal and other coupon notes in its participation in the security of the deed of trust, but the evidence fails to establish that or any other agreement on that subject. Keogh, failing to appear, was defaulted, so that no relief was asked or evidence offered in his behalf. The coupon note retained by him was not offered in evidence, or produced at the hearing, nor was its absence accounted for, nor any evidence given in relation to its whereabouts or what had become of it. Whether Keogh still holds it, or has negotiated it, or whether it has been taken up by the maker, does not appear. The court, however, in computing the amount due under the deed of trust, included said note, finding the amount due thereon to be $896, and adding that to the sum due the complainant, ordered a sale of the mortgaged premises for the amount thus produced, and the payment of said sum of $896 to Keogh.

We are able to find no warrant in the record for this portion of the decree. The mere absence of the coupon interest note, unaccounted for, of itself raises a prima facie presumption of payment. Especially is this true as against a holder) who, though a party to the proceeding, asserts no rights, and suffers himself to be defaulted for want of an answer. If said note is outstanding and unpaid in the hands of Keogh, as the decree seems to assume, it was incumbent on him to assert his lien, at least by answer, and to produce his note at the hearing, or satisfactorily account for its absence.

We are unable to assent to the position taken by counsel for the complainant, that, notwithstanding the non-production of the coujDon note, the installment of interest, for which it was given, is sufficiently proven by the principal note, which provides for the payment of ten per cent, annual interest. Such might be the case if said installment of interest were not further evidenced by the coupon note, which, if not paid, is outstanding in hands other than those of the complainant, Such note is a security quite independent of the principal note, and can be set up and availed of only by the party to whom it equitably belongs.

In our opinion, the decree should he modified by striking out of it the §896 found to be due to Keogh on account of said first coupon note, and that in all other respects it should he affirmed, the appellants and the aj>pellee to each pay one half of the costs of this apjieal. Let a decree he entered accordingly.

Decree modified.


text:
    E. C. John Cleaver et al. v. Christian Burcky et al.
    1. Mortgage—Sale—Usury.—Where a usurious contract is secured by a mortgage, if a sale is made subject to the mortgage, and the amount of the incumbrance is deducted from the price, the grantee will not be permitted to make the defense of usury.
    2. Verbal agreement.—Where a conveyance was made subject to the deed of trust, and the purchaser expressly covenanted to pay the indebtedness secured thereby, and the amount of the incumbrance, provisionally at least, was deducted from the price, but it was claimed that there was an oral contemporaneous agreement, by which the purchaser was to endeavor to reduce the amount of the incumbrance by setting up the usury, and in case of success, to pay the grantor the amount of the reduction out of the purchase money retained by Mm. Held, that the rights of the parties must be controlled exclusively by the terms and covenants of the deed, the oral agreement being incompetent to contradict the terms of the written agreement.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Opinion filed October 22, 1885.
    Mr. Frank J. Crawford, and Mr. James M. Cleaver, for appellants;
    that it was competent for the vendor to transfer to his vendee the right to interpose' the defense of usury, cited Maher v. Lanfrom, 86 Ill. 513; Henderson v. Bellew, 45 Ill. 322; Valentine v. Fish, 45 Ill. 462.
    The evidence of the verbal agreement was competent: Anson on Contracts, Part IV, Ch. 1, § 3; Erskine v. Adeane, L. R. 8 Ch. 766; Remington v. Palmer, 62 N. Y. 31; Wetherbee v. Potter, 99 Mass. 361; Carr v. Dooley, 119 Mass. 294; McCormick v. Cheevers, 124 Mass. 262.
    Messrs. Paddock & Alois, for appellees;
    that appellants had no right to maintain the defense of usury, cited Henderson v. Bellew, 45 Ill. 324; Valentine v. Fish, 45 Ill. 468; Pike v. Crist, 62 Ill. 464; Maher v. Lanfrom, 86 Ill. 513.
   Bailey, P. J.

This was a bill in chancery, brought by the appellants against the appellees, for an accounting, and to redeem from a deed of trust, and for an injunction to restrain, in the meantime, a foreclosure under the power of sale. On the 15th day of October, 1877, Frederick Burclcy executed to Christian Burclcy his promissory note for §9,366.92, due three years after date, with interest at the rate of nine per cent, per annum, payable annually; and to secure said note, executed to Edward Milan, as trustee, and to Bobert W. Hyman, his successor in trust, a deed of trust upon certain lands in Cook county, with the usual power of sale; said deed also containing a provision that, in case of the failure of the grantor to pay the taxes on said lands, the holder of the note might pay the same, and that all moneys thus paid, with interest thereon at the rate of ten per cent, per annum, should become so much additional indebtedness, secured by the deed of trust, to be paid out of the proceeds of the sale of the premises thereby conveyed.

On the 28th day of August, 1882, said note remaining wholly unpaid, Frederick Burcky conveyed said premises, subject to said deed of trust, to E. 0. John Cleaver, one of the complainants, the grantee expressly assuming and undertaking to pay the indebtedribss thereby secured, such assumption being in the following words: “ Subject, however, to an indebtedness secured by a trust deed of said premises to Edward Milan, trustee, dated October 15,1877, recorded, etc., which indebtedness the party of the second part hereby assumes and agrees to pay, and hold the said Frederick Burcky harmless therefrom.” The consideration of said conveyance was §19,000^ less the amount of the deed of trust. Before its payment, a statement was obtained from Christian Burcky of the amount, principal and interest, due on the deed of "trust, including the taxes paid by him and interest thereon, which showed a total of §16,876.90, and Cleaver, after deducting and retaining that amount out of the §19,000, paid the residue over to Frederick Burcky.

It is alleged by the complainants, and the evidence tends to show, that a portion of the consideration for which said promissory note was given, was certain items of antecedent indebtedness from Frederick Burcky to Christian Burcky, upon which certain amounts of unlawful and usurious interest had been agreed to be paid by the former to the latter, and that said usurious interest was included in and formed a part of the principal of said note. It is also alleged, and the evidence tends to show, that at the time of said conveyance, Cleaver, the grantee, was authorized by Frederick Burcky to set up said usury on his behalf, and to have the same applied in reduction of the deed,of trust, and that it was orally agreed, that if said Cleaver should succeed in obtaining such reduction, he would pay over the amount thereof to said Frederick Burcky. The hill was accordingly brought by Cleaver, and another to whom he had conveyed the land, or some interest therein, setting up said usury and praying to have the same ascertained and applied upon the deed of trust. The court at the hearing denied the claim for the alleged usury, and dismissed the bill for want of equity.

The question is thus presented whether, under the deed from Frederick Burcky to Cleaver, the latter had the right to set up the usury to defeat, pro tanto, the deed of trust. The general rule is, that the defense of usury is personal to the debtor, and can be set up only by him and those in privity with him. The debtor, if he sees fit, may waive the defense, and devote his property to the payment of the debt; and if he does so, mere strangers to the usurious contract have no right to complain. Where the usurious contract is secured by a mortgage, a party who purchases from the mortgagor without any deduction from the price on account of the incumbrance, becomes invested with the right to interpose the same defense as might have been made by the mortgagor. In such case, the conveyance amounts to an authority to the purchaser to interpose the defense of usury against the collection of the mortgage debt. But if the sale is made subject to the mortgage, and the amount of the incumbrance is deducted from the price, the grantee will not be permitted to make the defense of usury. Maher v. Lanfrom, 86 Ill. 513; Shufelt v. Shufelt, 9 Paige, 137; Post v. Dart, 8 Id. 639; Cole v. Savage, 10 Id. 583; Tyler on Usury, 403, et seq., and authorities cited.

In this case, not only was the conveyance made subject to the deed of trust, but the purchaser expressly covenanted to pay the indebtedness thereby secured, and the amount of the incumbrance, provisionally at least, was deducted from the price. Unless, then, the rights of the parties are modified by the oral agreement entered into between Frederick Burcky and Cleaver, cotemporaneously with the conveyance, the deed must be regarded as a waiver of the usury by Burcky, and an appropriation on his part of the mortgaged property to the payment of the indebtedness secured by the deed of trust; and Cleaver, by his covenant to pay said indebtedness, entered into new and binding contractual relations with the holder of the security.

What force, then, is to be given to the oral, cotemporaneous agreement? By that agreement Cleaver was to endeavor to reduce the amount of the incumbrance by setting up the usury, and in case of success, to pay Burcky the amount of the reduction out of the purchase money retained by him. To give effect to such agreement would clearly be in violation of the rule which forbids the admission of oral testimony to vary or contradict a written agreement- By the deed, Cleaver undertook to pay the indebtedness, while by the parol agreement he was not to pay but to contest it. By the deed, Burcky waived the usury and made an express appropriation of property for its payment, while by the parol agreement he attempted to assert the defense of usury and to authorize his grantee to plead it on his behalf. We think, therefore, that upon well established principles, the oral agreement must be disregarded, and that the rights of the parties must be controlled exclusively by the terms and covenants of the deed.

We are referred to several decisions by the Supreme Court, but we think that none of them are in conflict with the conclusions we have reached in this case. In Pike v. Crist, 62 Ill. 461, where it was held that the grantee of premises incumbered by several mortgages had a right to set up the usury in said mortgages, it was expressly provided in the deed that the conveyance was made subject to, and the grantee assumed and agreed to pay said mortgages, “ except any usurious and illegal interest in the same.” ‘ In Henderson v. Bellow, 45 Ill. 322, it was expressed in the deed that the purchaser took the land subject to a certain deed of trust, previously executed by the grantor, and the court held that he was not entitled to avail himself of usury in said deed of trust.

In Valentine v. Fish, 45 Ill. 462, the conveyance was made subject to the prior mortgage. In a bill to redeem, setting up the usury, both the mortgagors and their grantee were made parties complainant, and the court held that the mortgagors had a right to file a bill on their own behalf and set up the usury, and to have an account stated, so as to be able to pay up the balance of their mortgage and have the same canceled; and that their grantee, who held the equity of - redemption, had a right, with their consent, to be a party complainant, and as he had purchased subject to the mortgage, the amount found to be due thereon was the-measure of his liability. The court, however, lay down the rule that the mortgagor may affirm the validity of the usurious mortgage by selling the land subject thereto, in express terms, in' which case the purchaser will be entitled to the equity of redemption merely, and can not himself question the validity of the prior mortgage.

In Maher v. Lanfrom, 86 Ill. 513, where the grantee of mortgaged premises was permitted to avail herself of usury in a prior mortgage, the conveyance to her was not in terms made subject to the mortgage, and no reference to thé mortgage whatever seems to have been made therein, nor was anything deducted from the price of the land on account of it when she purchased—she taking the land subject to the mortgage, not by agreement, but by operation of law. Upon these facts it was held, that if a party purchased from a mortgagor without any deduction from the price on account of the incumbrance, the grantee thereby becomes invested with a right to interpose the same defenses as might have been made by the mortgagor. In such case the conveyance amounts to an authority to the purchaser to interpose the defense of usury. The court, however, expressly affirms the rule laid down in the former cases above cited, that when a sale of mortgaged premises is made in express terms subject to the previous usurious mortgage, the purchaser can not question the validity of the prior mortgage.

It is insisted that the holder of the incumbrance in this case had no right to compute interest on the taxes paid by him at the rate of ten per cent, per annum. This claim is based upon the theory that the express agreement in the deed of trust allowing such computation of interest is without mutuality, as there was no express undertaking on the part of the holder of the incumbrance to pay any taxes, and it is argued that the agreement in that behalf is therefore without consideration To this view we are unable to assent. The trust deed is a single and entire contract, and it has a single consideration, viz., the indebtedness secured, and that consideration is sufficient to support all the various terms and stipulations of the instrument. None of its stipulations, therefore, can be lacking in mutuality. There being an express agreement that, in case of the payment of taxes by the holder of the note, the amount so paid, with interest thereon at the rate of ten per cent, per annum, should be additional indebtedness secured by the deed of trust, we can see no reason for holding that such agreement was not upon a sufficient consideration, or invalid for any reason. The- grantor in the deed of trust having neglected and failed to pay the taxes, it was the clear right of the holder of the note, under the terms of the deed of trust, to pay them in his stead, and recover the same, with the interest stipulated, as a part of the incumbrance.

There being no error in the record, the decree will be affirmed.

Decree affirmed.


text:
    George H. Fergus et al. v. Seth Wilmarth.
    1. Trustee.—It is the plain duty of a trustee who has in his hands a security for a debt, unless the instrument creating the trust otherwise provides, to hold the security until the debt matures, and then, if such debt is not otherwise discharged, to apply the security to its satisfaction; and his duty is in no way changed by the security becoming converted into money before the debt matures.
    2. Insurance clause.—The above principle applied to the ordinary insurance clause in a trust deed.
    Error to the Circuit Court of Cook county; the Hon. Hurray F. Tuley, Judge, presiding.
    Opinion filed October 22 1885.

      The writ of error in this case brings up for review a decree in equity foreclosing a deed of trust. It appears that on the 26th day of June, 1871, George H. Fergus, the plaintiff in error, borrowed of Alexander H. Eice, §12,000, for which he gave his principal promissory note, payable five years after date, with interest at the rate of eight per cent, per annum, payable semi-annually, and also executed ten coupon interest notes for said several installments of interest; that, to secure said notes, said Fergus and wife executed to William E. Furness, as trustee, a deed of trust, conveying certain real estate in Chicago, Cook county, said deed of trust containing, among other things, the following covenant:

      “ And the said George H. Fergus, for himself and for his heirs, executors and administrators, does covenant and agree to and with the party of the second part, his successors in trust hereinafter named, his heirs and assigns, * * * that he will and shall keep all buildings (except outhouses), that may at any time during the continuance hereof be upon, or a' part of the said premises, insured against loss or damage by fire, in such insurance company or companies as the said party of the econd part, or his successor in trust, his heirs or assigns, may direct, for the full insurable value thereof, not to exceed, however, the amount of said indebtedness; and will and shall with the proper consent of the insurers, assign the policy or policies to the said party of the second part, his successor in trust hereinafter ¡named, his heirs or assigns, upon request therefor, as a further security for the indebtedness aforesaid.’
    At the time of the execution of the deed of trust, there was situated on said premises a four story and basement brick building, and some time thereafter, and prior to October 9, 1871; said Fergus obtained a policy of insurance on said building for §7,500, payable to said Furness, as trustee, and delivered the same to him. At the time of the great fire of October 9, 1871, the building was burned, and on the 3d day of August, 1872, said trustee collected and received on said policy the amount of said insurance in full.
    The insurance money, when collected, was first deposited by the trustee in the Second National Bank of Chicago, but shortly afterward it was drawn by him from that bank and deposited in the Scandinavian National Bank of Chicago, where it remained until December 9, 1882, when that hank became insolvent. There is some conflict in the evidence as to the circumstances under which said fund was deposited in the last named bank. Fergus and the trustee agree in their testimony that the trustee, being a stranger to the officers of that hank, was taken there by Fergus and introduced to the cashier, air! that such introduction was made with a view on the part of both to the deposit of the money there. The trustee, however, testifies that such deposit was made at the suggestion and request of Fergus, he stating as a reason that the Scandinavian National Bank would pay him interest on the money if he would deposit it there, while Fergus, on the other hand, denies that he either requested or suggested that the fund be deposited in that bank.
    Shortly after the collection of the insurance money, and a considerable time before the failure of the Scandinavian Bank, Fergus having commenced, or being about to commence, the restoration of the building destroyed, applied to the trustee for said insurance money, to be used in reconstructing the building, and claimed that he had a right to control and use it for that purpose. On the other hand, Wilmarth, who then held the notes secured by the deed of trust by assignment from Bice, claimed that the money should be applied on the notes. Under these circumstances, as none of the notes had matured, the trustee conceived it to be his duty, and so stated to Fergus, to hold the money in place of the insurance, as a security for the loan, and when the notes should mature, to apply it to their payment; or if, on the other hand, there should be no default in the payment of the notes, and after the restoration of the building, Fergus shordd obtain a policy of insurance thereon for the same amount as before, to pay the money over to him.
    After the insolvency of the hank, the deposit, with interest, was proved up, and allowed by the trustee as a claim- before the receiver, and a receiver’s certificate was issued therefor. Subsequently two dividends, one of twenty-five per cent, and one of fifteen per cent, amounting in the aggregate to §3,057.53, were paid by the receiver, all of which the trustee paid over to Fergus. At the hearing, the receiver’s certificate indorsed by the trustee “ without recourse” was tendered by the trustee to Fergus, who accepted and received the same.
    It was urged by Fergus in defense, that the complainant should be charged with the moneys lost by the failure of the Scandinavian Bank; but the court disallowed said claim, and rendered a decree for the full amount appearing to be due on the notes secured by the deed of trust.
    Mr. B. B. Bacoj\t, for plaintiff in error;
    as to the liability of the mortgagee, cited Barker v. Garvey, 83 Ill. 184; Story on Agency, § 255.
    The mortgagee had no right, without the mortgagor’s consent, to convert the insurance, until he had a right to demand payment of the debt: Gordon v. Ware Savings Bank, 115 Mass. 588; Jones on Mortgages, 2d Ed. § 410.
    Mr. E. A. Otis and Mr. Geokge W. Smith, for defendants in error.
   Bailey, P. J.

In our opinion, there was no error in the refusal of the court below to charge the complainant with the insurance money lost by the failure of the Scandinavian National Bank. The rights of the parties in respect to said money, and the duties of the trustee in relation thereto, all depended upon the terms of the covenant in the deed of trust providing for the insurance, and the established principles of equity applicable thereto. By that covenant, Fergus bound himself to keep the buildings covered by the deed of trust insured for their full insurable value, and to assign the policy to the trustee, to be held by him “as a further security for the widébtedness ” for which the deed of trust was given. After the destruction of the building by fire, and the collection of the insurance money, the money took the place of the policy, and it thereby became, in the same sense and to the same extent as the policy itself, a security for said indebtedness.

It is the plain duty of a trustee who has in his hands a security for a debt, unless the instrument creating the trust otherwise provides, to hold the security until the debt matures, and then, if such debt is not otherwise discharged, to apply the security to its satisfaction. The fact that it has become converted into money before the debt matures, in no way changes his duty. In such case it would be a clear violation of his trust to hand the money over to the debtor, and the creditor is under no obligation to receive it, nor has the trustee a right to pay it over to him without the consent of the debtor, until the debt matures. 1 Jones on Mort. 410; Gordon v. Ware Savings Bank, 115 Mass. 588.

Shortly after the colection of the insurance money, Wilmarth, the holder of the notes, sought to have it paid over to him, to be applied • upon the notes, although not yet due. To this, Fergus, the debtor, objected, and demanded on his part that it be placed under his control to be used in restoring the building. While Fergus clearly had no right to have the money paid over to him, he had an undoubted right to object to its payment to Wilmarth, until the notes matured, and his doing so made it the duty of the trustee to hold the money until their maturity. While the trustee was thus holding the money, and before he had a right to pay it to either party, the bank became insolvent and the money was lost.

Even if it should be held that the money was lost through the negligence of the trustee, it does not necessarily follow that Wilmarth is to be charged with the loss. The trustee was the agent of Fergus as well as of Wilmarth, and we see nothing in their relations which should charge Wilmarth instead of Fergus with the consequences of his negligence. Beyond a mere request that the money be paid over to him, to be applied on the notes, Wilmarth does not appear to have controlled or attempted to control the trustee in selecting a place of deposit, nor does he seem to have been aware of its deposit in the Scandinavian National Bank.

But without deciding that question, it is sufficient to say that the evidence warranted the court below in finding that the trustee was free from the imputation of negligence, and that if there was any negligence, it was that of Fergus rather than of the trustee. So far as appeaz-s, the Scandinavian ¡National Bank, at the time the deposit was made, and from that time up to the date of its failure, was in good credit, and, so far as the trustee knew, or had the means of knowing, pez-fectly solvent and trustwoz-thy. Its insolvency, so far as this recoz-d shows, was wholly unexpected to the public, and was a casualty against which ordinaz-y prudence and foz-esight could not have guarded.

But the evidence shows that, at the time the deposit was made, Fez-gus was acquainted with the bank and its officers, while the trustee was a stranger to both, and that the trustee was introduced to the bank by Fergus. There was also evidence which tended to show, and which warranted the court in finding, that the Scandinavian national Bank was selected as the custodian of the money at the suggestion and express request of Fez-gus, his reason for making the selection of that bank being that it would pay interest on the deposit, thus showing tliat it was his expectation and desire, not only that the money should be deposited thez-e, but that it should remain there until needed by the tz-ustee in the execution of his tz-ust. If, then, there was any negligence in the matter’, the court was justified in holding that it was the negligence of Fergus, and in placing the loss upon his shouldez-s instead of Wilmaz-th’s, who lived in the distant city of Boston, and could have had no pez-sonal connection with the negligence which z-esulted in the loss.

The decree, in our opinion, is fully sustained by the evidence, and it will thez-efore be affirmed.

Decree affirmed.


author: McAllister, J.

text:
    Elisha C. Sprague v. William G. Hards et al.
    Parties.—The cause must be heard as to all the parties to the writ of error. The submission is set aside, and the cause continued for the purpose of bringing in the necessary parties.
    Error to the Circuit Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Opinion filed October 22, 1885.
    This was a proceeding in chancery, under the statute, by Hards and O. B. Green against Sprague, plaintiff in error, and others, for a mechanic’s lien for work and materials done and furnished in the erection,by Sprague, of a building on the land descri.bed.in the petition of Hards, filed December 23, 1873, in which case said Green intervened. Sprague’s interest in the land was that of lessee for a term of years, and was subject to a mortgage on the land given to the Connecticut Mutual Life Insurance Company by the owners of the reversion, and recorded before Sprague’s lease. Suit by the insurance company to foreclose that mortgage was pending in the United States Circuit Court for the Northern District of Illinois, when the contracts for said work and materials were made. And, before any decree in this present case, there was a decree in said foreclosure suit, sale, and conveyance of the premises to one Jacob L. Greene. The insurance company was.made a party to the original petition and Jacob L. Greene was afterward brought in, and both the insurance company and Greene answered, setting up the mortgage and foreclosure proceedings. Sprague did not set them up nor in any way challenge the jurisdiction of the court below.
    On hearing upon pleadings and proofs, the court found that Sprague had an interest in the land at the commencement of this suit, but that he had none at the time of the hearing ; that said mortgage operated as an incumbrance on the building which Sprague erected after it was created, and that because of the pendency of the suit to foreclose, when the building was being erected, petitioners acquired no lien upon the building, and dismissed the petitions as to the insurance company and Jacob L. Greene, hut rendered a personal decree against Sprague in favor of Hards, for §2,231.25, and O. B. Green for §1,596. Sprague brings the case here by writ of error, in which the Connecticut Mutual Life Insurance Company and Jacob L. Greene and others, are mentioned as parties, hut none of them have been brought in by service or appearance except Hards and O. B. Green, and their counsel make the point of want of necessary parties.
    Mr. I. K. Boye sen, for plaintiff in error.
    Messrs. Quick & Miller, and Mr. John S..Miller, for defendants in error.
   McAllister, J.

We have examined this record so far as to convince us that two important questions are involved. The first is, whether in view of the provisions of sections 25 and 9 of the statute, the court below was warranted in rendering a personal decree against Sprague and awarding an execution thereon, there having been no sale ordered, and a deficiency ascertained as prescribed in said section 25. It was claimed by defendants in error that inasmuch as the court found no interest in Sprague, at the time of the decree, a sale would have been a mere useless act, and the law would not require it; that the general principles of equity would apply. It has occurred to us that section 9 makes those principles applicable, “ except as is otherwise provided in this act.'5 What effect that exception has we are not prepared to say, and counsel have made no suggestion in regard to it. The second question is, whether in view of the provisions of section 17, the pendency of the foreclosure suit would cut off petitioners from the benefit of that section as respected the building.

We find that we can not properly determine the questions without having the said insurance company and Jacob L. Greene brought in by service. The cause must be heard as to all the parties to the writ of error. State Bank v. Wilson, 3 Gilm. 89; Carey v. Giles, 10 Geo. 1; 2 Tidd’s Pr. 1134. The submission will therefore be set aside, and the cause continued for the purpose of bringing in the necessary parties.


text:
    Robert C. Greer v. George Youngs.
    1. Service—Privilege.—A party while engaged in taking depositions to be used in his suit in another State, and for such time thereafter as is necessary to return to his home in that State, is privileged from the service of a summons.
    2. Practice.—The question of whether a summons has been properly served or not, can not be raised by a plea in abatement, but will properly be considered on motion to quash writ of service.
    Ebbob to the Circuit Court of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.
    Opinion filed October 22, 1885.
    Messrs. Dent, Black & Cbatty Bbós.,' for plaintiff in error;
    that the motion was not made in apt time, cited Wilson v. Nettleton, 12 Ill. 61.
    The matter was not proper to be decided on motion:
    Holloway v. Freeman, 22 Ill. 197; Union Nat. Bk. v. First Nat. Bk., 90 Ill. 56; McNab v. Bennett, 66 Ill. 157; Rubel v. Beaver Falls Cutlery Co., 22 Fed. Rep. 282; F. & M. Ins. Co. v. Buckles, 49 Ill. 482.
    Messrs. Cliefobd, Anthony & Paulsen, for defendant in error.
   Bailey, P. J.

This was an action of assumpsit brought by the appellant against the appellee in the Superior Court of Cook county. The summons was served and the declaration filed July 23, 1884, and on the 18th of August following, the defendant, by his attorneys, entered his appearance for the purpose only of moving to quash the summons and to dismiss the suit. No formal motion to that effect seems to have been filed, nor any steps taken in relation thereto, except the service of a notice by the plaintiff’s attorneys, that they would, call the motion up November 10th, and a stipulation by the defendant’s attorneys that it might be taken up November 17th without further notice, and a further stipulation by the attorneys of both parties, continuing it to November 24th. On the 19th of November, the defendant, by his attorneys, entered a motion, supported by affidavit, to quash the service of the sunimons on the ground that the defendant was a non-resident of this State, and that at the time of said service he was within the jurisdiction of the court, for the sole purpose of attending upon certain legal proceedings. This motion was sustained, and it appearing that the plaintiff was not able and did not expect to be able to obtain other or further service upon the defendant, and that he elected to abide by the service and return already made, it wras ordered that the suit be dismissed at his costs.

The plaintiff’s affidavit shows, in substance, that at the date of the service of the summons, there was pending in the Circuit Court of Lafayette county, in the State of Missouri, a suit brought against him by the plaintiff in this suit, for the identical cause of action for which this suit was brought; that both the plaintiff and defendant then were and still are residents of Missouri; that for the purpose of defending that suit, it became necessary to take certain depositions in Chicago, Illinois, and for that purpose the defendant had caused a dedimus to be issued to a notary public of Cook county; that said depositions were to be taken on oral interrogatories, and the defendant was advised by his attorneys that his presence there was necessary; that thereupon, for the purpose of attending the taking of said depositions, and for no other purpose whatever, he left his home in Missouri and proceeded to Chicago, arriving there July 22d; that on July 23d said depositions were taken, and that the defendant was present instructing his attorneys in relation to the examination of the witnesses; that it was his intention to and. he did actually return to Missouri by the next train after the depositions were completed; that shortly after they were taken, and while the defendant was in consultation with his attorneys in relation thereto, and before he had time to return home, said summons was served on him.

We are of the opinion that the defendant, while engaged in taking depositions to be used in his suit in Missouri, and for such time thereafter as was necessary to return to his home in that State, was privileged from the service of summons. It is a principle as old as the common law, that all persons who, in the discharge of their duty, are in attendance upon courts of justice, and in going to and returning therefrom, are exempt from arrest on civil process. This is a privilege which extends alike to parties, witnesses, attorneys, jurors, and all others who are assisting in the administration of justice; and this immunity does not extend alone to persons who are in the immediate presence of the courts themselves, but to those also who are in attendance npon subordinate tribunals and officers appointed by the courts to assist them in the discharge of their duties.' Thus, it is held to extend to a party attending the execution of a writ of inquiry : Walters v. Rees, 4 Moore, 34; to a witness attending before a magistrate to give his deposition under a rule of court: United States v. Edme, 9 Serg. & Rawle, 147; to a witness attending before a commissioner for a like purpose: Holmes v. Morgan, 1 Phila. 217; to a creditor or witness attending commissioners of a bankrupt: Ex parte King, 7 Vesey, 312; Ex parte Byne, 1 Ves. & B. 316; to witnesses before arbitrators: Sandford v. Chase, 3 Cow. 381; Randall v. Guney, 1 Chitty, 679; and to a party attending a reference under a rule of court: Clark v. Grant, 2 Wend. 257. This exemption is alike the privilege of the person and the privilege of the court, and it is designed to render the, administration of justice free and untrammeled, and to protect from improper interference all who are concerned in it.

The weight of authority seems to be clearly in favor of the proposition that, as regards this privilege, there is no difference between writs of capias and writs of summons, but that the exemption extends to both alike. It was so held in Hayes v. Shields, 2 Yeates, 222, where the defendant, a resident of New York, was served with summons as he was leaving the court house, where he had been in attendance upon the trial of a suit in which he was a party, in one of the courts of Pennsylvania. In Bolton v. Martin, 1 Dallas, 296, the same rule was applied to the privilege, from service of process, of a member of the State convention, assembled to deliberate in relation to the adoption of the federal constitution. In Miller v. McCullough, 1 Binney, 77, the defendant, a resident of another county, while attending court, upon an appeal from the settlement of his accounts as administrator, was served with summons. On motion to set aside the service, it was contended that he was only privileged from arrests, hut the court replied that it had been repeatedly ruled that he was equally privileged from the service of summons. In Dugan v. Miller, 8 Vroom, 182, a party to a suit in chancery, who resided in another State and came into New Jersey to give testimony in his own behalf before a master in chancery, was held to be privileged from the service of summons while attending before the master, and going to and returning from the place where the examination was held. In Halsey v. Stewart, 1 South. 420, the defendant, a resident of New York, attended the Court of Common Pleas of Essex county, New Jersey, in the necessary prosecution of a'suit to which he was a party, and on his leaving the court house a summons was served upon him. On his motion to .be discharged from such service, it was contended that as there was no arrest, he was not entitled to the privilege claimed; but the court in granting the motion said: “Courts of justice ought everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them. The citizen, in every claim of right which he exhibits, and every defense which he is obliged to make, should be permitted to approach them, not only without subjecting himself to evil, but even free from the fear of molestation and hindrance. He should also be allowed to procure, without difficulty, the attendance of all such persons as are necessary to manifest his rights. Now, this great object in the administration of justice, would, in a variety of ways, be obstructed, if parties and witnesses were liable to be served with process while actually in attendance upon the court.” The same rule was laid down in Huddeson v. Prizer, 9 Phila. 65.

But it is insisted that the defendant’s right to be discharged from the service of the summons should have been pleaded in abatement, and that it was erroneous to quash the service on motion. To this view we are unable to assent. In every one of the cases above cited, the service was quashed on motion ; and in Protection Life Ins. Co. v. Palmer, 81 Ill. 88, it is held that the question whether a summons has been properly served can not be raised by plea in abatement, the reason assigned being that the fact, if pleaded, would not give a better writ,- since, if the return should be quashed, another writ precisely similar would issue.

Again it is claimed that the motion, not having been made at the first term of court after the service, came too late. The motion, it is true, is dilatory in its nature, and should be made in apt time, but as the defendant had entered no general appearance which could have the effect of a waiver of service of process, the motion to quash the service was in time.

We find no error in the record, and therefore affirm the judgment.

Judgment affirmed.


author: Per Curiam.

text:
    Mary Parrott v. Austin J. Goss.
    Pleading—Entering default.—In an action at law, where a plea has been filed, unless it has been stricken from the files or otherwise disposed of, the court is powerless to enter the default of the defendant.
    Error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed October 29, 1885.

      Messrs. Merrtam & Whipple, for plaintiff in error;
    that the court erred in entering the default of defendant, cited White v. Thompson, Breese, 72; Semple v. Locke, Breese, 388; Lyon v. Barney, 1 Scam. 387; Covell v. Marks, 1 Scam. 391; McKinney v. May, 1 Scam. 534; Sammis v. Clark, 17 Ill. 398.
   Per Curiam.

This was an action of covenant, brought by Austin J. Goss against Mary Parrott, to recover damages for a breach of a covenant of warranty against incumbrances in a deed. The defendant appeared and tiled a plea of non esi factnim; but after the plea was filed, the court, without making any disposition of the plea, entered judgment against the defendant by default, for $758.21 and costs.

In an action at law, where a plea has been filed, unless it has been stricken from the files or otherwise disposed of, the court is powerless to enter the default of the defendant. Mason v. Abbott, 83 Ill. 446.

The transcript contains a motion to set the default aside, and certain proceedings thereunder, including an affidavit filed on behalf of the plaintiff in opposition to the motion; but as the record contains no bill of exceptions, none of the matters pertaining to the motion are made matters of record, and they can not, therefore, be judicially noticed.

The judgment was erroneously entered; and it will accordingly be reversed and the cause remanded.

Judgment reversed.


text:
    George E. Jones v. The Chester Oil Co.
    1. Remedy at law—Equity jubisdictioit.—As it is not alleged that the defendant, is insolvent, or that it is not amenable to the process of ths court, the defendant, has a complete and adequate remedy at law and the hill is without equity,
    2. Multiplicity op suits.—Where the complainant’s indebtedness to the defendant is shown to have been split up so as to be liable to be made the subject of a number of suits by the voluntary act of the complainant, the mere fact that he has thereby rendered himself liable to a multiplicity of suits furnishes no ground for equitable relief.
    Error to the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed October 29, 1885.
    This was a bill in equity, brought by George E. Jones against the Chester Oil Company, to restrain the defendant from prosecuting certain suits at law against the complainant. The bill alleges, in substance, that on the 5th day of January, 1885, the complainant entered into a contract with the defendant, by which the complainant was granted the exclusive right, during the period of four years, to sell lubricating oils, lubricants, etc., for the defendant, in the city of Chicago and within a radius of twenty-five miles from the Cook county court house (except to certain enumerated parties), at prices and on terms specifically agreed upon; that the complainant immediately entered upon the duties of said agency, and continued therein until June 3, 1885, giving his best efforts thereto; that owing solely to his skill and acquaintance, said business immediately became prosperous and lucrative, complainant’s profits averaging about $100 per month; that, in the prosecution of said business, the complainant kept on hand a limited stock of said goods, the same having been purchased of the defendant at the prices, and on the terms of credit, provided in the contract; that on the 29th day of Hay, 1885, the complainant being indebted to the defendant in the sum of $1,121.31, none of said indebtedness being then due, the defendant requested him to accept a series of drafts aggregating that amount, which it was proposing to draw, pretending that it needed them to use at the bank; to which request the complainant, not suspecting that the defendant had any intention of breaking or attempting to break said contract,' acceded, and accepted eight drafts, aggregating the amount aforesaid, drawn on him by the defendant, payable to the order of F. J. Holt, and maturing at different dates in the months of June and July following, all of said drafts, with one exception, being less than $200.

      The hill further alleges that, shortly after the acceptance of said draft, and on the third day of June, 1885, the defendant, without any legal or equitable cause, terminated the complain-, ant’s agency, and discharged him therefrom, thereby causing him large damage; that the defendant is still the owner and holder of said drafts; that the pretenses made to the complainant to induce him to accept the same were false; that on or about July 9, 1885, the defendant caused two suits to be instituted against the complainant on some of said drafts before a justice of the peace of Cook county; that thereupon the complainant offered “ to waive the maturity of the balance of the drafts,” so that one suit might be brought upon them all, which offer was declined by the defendant; that the company has threatened to, and will, bring a separate suit upon each of said drafts in order to annoy and harass the complainant and prevent his making a defense thereto; that he has a full and complete defense to all of said drafts, such defense consisting in a claim against the defendant, for commissions on goods sold by the defendant without the knowledge or consent of the complainant, within the territory aforesaid, in violation of said contract, and damages for the wrongful discharge of the complainant from said agency; that under the law, the complainant can make his defense to only one of said suits, and, if successful in his defense to such suit, the judgment therein would be a bar to his availing himself of his defense to any other suit; that the complainant “ waives the maturity of the drafts not yet due,” and offers to allow the defendant to immediately bring suit against him upon them all.
    The bill prays for an injunction, restraining the defendant from bringing more than one suit against the complainant, on said drafts, and from negotiating said drafts.
    A preliminary injunction having been awarded, the court, on motion of the defendant, dissolved the injunction, and dismissed the bill for want of equity, and the complainant brings the record to this court by writ of error.
    Mr. George A. Gibbs, for plaintiff in error.
    Mr. Wm. J. McMillar, for defendant in error.
   Per Curiam.

So far as appears by the bill, the complainant has a complete and adequate remedy at law. It is not alleged that the defendant is insolvent, or that it is not amenable to the process of the court. If the complainant has a claim against the defendant for damages or commissions as alleged in the bill, no reason is shown why such claim may not he recovered in a suit at law.

The complainant’s indebtedness to the defendant is shown to have been split up, so as to he liable to be made the subject of a number of suits, by the voluntary act of the complainant; and the mere fact that he has thereby rendered himself liable to a multiplicity of suits, furnishes no ground for equitable relief. He is at liberty to pay the drafts as they mature, there being no question as to his liability thereon, and resort to his action at law to recover damages and commissions of the defendant. Were the defendant insolvent or beyond the process of the court, the case would he different.

The hill is without equity, and was properly dismissed.

Decree affirmed.