text:
    Edward A. Welch, Appellant, v. City of Highwood, Appellee.
    Gen. No. 5,207.
    Appeals and errors—power of Appellate Court to grant rehearings. It is within the power of the Appellate Court to grant a rehearing, even though the rules with respect thereto have not been strictly complied with; a rehearing may be granted by the Appellate Court upon its own motion.
    Bill for injunction. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the April term, 1909.
    Appeal dismissed.
    Opinion filed October 19, 1909.
    Cooke, Pope & Pope, for appellant.
    O. S. Gooch, for appellee; E. S. Gail, of counsel.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellant filed a bill to restrain appellee from cutting off the city water from his place of business, under certain circumstances in controversy between the parties relating to the charge for said water. He had a preliminary injunction. Appellee filed an answer and moved to dissolve the injunction. That motion was heard upon pleadings and affidavits, and the injunction was dissolved and the bill was dismissed for want of equity. Complainant below appealed to this court.

Appellee moved this court to dismiss the appeal or affirm the decree. It was shown in support of the motion that a certificate of the evidence heard upon the motion to dissolve was filed in the court below. Said certificate of evidence is not included in this record. We affirmed the decree on the ground that in the absence of evidence the dismissal of the bill was the only proper decree. First Natl. Bank v. Baker, 161 Ill. 281; Kelly v. Funkhouser, 171 Ill. 205; Dammann v. Connolly, 135 Ill. App. 504. Thereafter appellant entered his motion to vacate the order affirming the decree, and that leave be given appellant to dismiss his appeal without prejudice, and to withdraw the record. With this motion was an affidavit explaining the absence of the certificate of evidence from the record. We denied that motion. Appellant then asked a rehearing, which was granted. Upon the motion to dismiss or affirm it was shown that since the decree below some one acting in the interest of appellant has paid the water bills which were the cause of the" controversy. Upon further consideration we conclude that we should permit appellant to dismiss his appeal and to withdraw the record, so that if a like controversy upon like charges should arise hereafter, appellant can if he desires have the decree reviewed upon a record containing the evidence.

Appellee has filed in vacation a motion asking us to withdraw the order allowing a rehearing and to strike the petition therefor from the files for alleged lack of strict compliance with our rules as to petitions for rehearing. This rehearing was granted at' the same term at which the judgment was entered, and while we had full control thereof. We granted it regardless of the question whether appellant had strictly complied with the rules, and did so because, upon further reflection, we concluded we should not have affirmed the decree. We had power at that term to award a rehearing of our own motion. A rehearing was granted by the court of its own motion in Chicago Planing Mill Co. v. Merchants’ National Bank, 97 Ill. 294. The power is recognized in Blatchford v. Newberry, 100 Ill. 484, and Brant v. Gallup, 117 Ill. 640. We modified a judgment of our own motion at the next term in Egan v. Clark, 87 Ill. App. 246. As appellee asked in the alternative that the appeal be dismissed, we think it has no cause to complain. The motion to strike the petition from the files is denied.

The motion of appellant to dismiss his appeal without prejudice is therefore granted, and leave is given him to withdraw the record.

Appeal dismissed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    John Selenak, Appellee, v. Joseph Selenak, Appellant.
    Gen. No. 5,219.
    1. Evidence—when leading questions will not reverse. It is not every leading question which constitutes reversible error. Leading questions may be permitted by the court in the exercise of a sound discretion. Held, in this case, that the exercise of such discretion was not abused.
    2. Appeals and errors—when assignments of error waived. A point urged by assignment of error on appeal which was not specified in the written motion for a new trial, will not be considered on review.
    Assumpsit. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    J. T. & Max Murdock and C. B. Chapman, for appellant.

      Arthur H. Shay, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee sued appellant, his step-father, to recover wages, and had a verdict and a judgment for $400, from which defendant below appeals.

Appellant married appellee’s mother in Austria nineteen years before the trial, and some two years later moved to LaSalle county, Illinois, with his family. Appellee is not mentally bright, is very hard of hearing, is badly tongue tied and does not speak English, and it was very difficult for the interpreter to understand his almost inarticulate utterances in answer to questions. Appellant testified that he left appellee in the old country because he was “a dummy.” After appellee had grown up and had employment in the old country, his step-father sent for him to come and work for him, and bought a piece of rough land, full of stumps and stones, and set appellee to work clearing it. Appellee came and worked for appellant, three years according to his proof, or two years and nine months according to appellant’s proof, when he left owing to harsh treatment by appellant. The law is that if appellee was a member of appellant’s family, then in order to recover wages it was necessary for him to show that the parties intended that compensation should be paid for the services. Appellee’s proof tended to show that during the time he worked for his step-father he slept in the house but about one week and the rest of the time slept in the open air or in the barn or hog pen. Various circumstances in evidence justified the jury in finding that he was not treated as a member of the family. If not, then he was entitled to compensation. There was proof that appellant promised to pay appellee, from which the jury might reasonably infer that compensation was intended by the parties. If so, he was entitled to recover. There was proof that appellant said he would pay appellee $300 or $400 for his services and that he so promised to appellee. There was other proof that he said he would pay appellee “just as much as anybody pays the rest of the fellows.” There was proof that the going wages were $25 per month in that locality for farm work. The jury awarded appellee less than one-half of what he would have been entitled to at $25 per month. The litigated matters were questions of fact upon which the verdict of the jury, approved by the trial judge, cannot be disturbed upon this record.

It is argued that it was error to permit leading questions to he asked of appellee. It is not every leading question which constitutes reversible error. In a case like this, where the question must be put through an interpreter and where the witness is exceedingly deaf and is so tongue tied that his answers are almost unintelligible to the interpreter, it is very difficult to control the exact form of the question and to know in exactly what form the interpreter puts it to the witness. Some of the questions of which complaint is made were not answered. We do not feel that we are warranted in saying that the court abused its discretion in the form of questions permitted. Moreover, the action of the court in permitting leading questions to he asked was not specified in the motion for a new trial as one of the grounds on which that motion was based, and it was therefore waived. Complaint is made of the instructions given for appellee. We have examined them and find no reversible error in them, but consider it unnecessary to discuss the objections in detail.

The judgment is therefore affirmed.

Affirmed.


author: Mr. Justice Thompson

text:
    John W. Martin, Appellant, v. Union Drainage District No. 5, Montmorency and Coloma Townships, Appellee.
    Gen. No. 5,057.

      Deainage—when payment of debt cannot be enforced under Farm Drainage Act. A debt created in advance of an assessment cannot be enforced under the Farm Drainage Act unless there is sufficient money to pay such debt in the hands of the treasurer which had come to him through regular channels.
    Mandamus. Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Jarvis Densmoor, for appellant.
    C. L. and C. E. Sheldon, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

John W. Martin filed a petition on January 6, 1908, in the Circuit Court of Whiteside county praying for a writ of mandamus, directed to the commissioners of Union Drainage District No. 5 of Montmorency and Coloma townships in Whiteside county or to Amos Haverstick, commanding them or him to pay certain warrants alleged to have been issued by said district.

The petition alleges that said Union Drainage District is a corporation organized in 1883, under the Farm Drainage Act, and that it is indebted to the petitioner in the amount of $781.19; that said indebtedness occurred in this wise: that about June 1, 1903, a legal controversy having arisen between the commissioners of said corporation and the landowners with reference to cleaning ditches and the duties of the commissioners, the commissioners employed Francis E. Andrews, Sr., as legal counsel, and Francis E. Andrews, Jr., as engineer and surveyor; that said parties did render services in behalf of the district in pursuance of said employments; that at a regular meeting of said commissioners on March 10, 1904, the bills of said counsel and surveyor were audited and allowed and warrants aggregating $627 were issued to Francis E. Andrews, Sr., for legal services and $154.19 were issued to Francis E. Andrews, Jr., for surveying; that at a meeting on March 9, 1904, the commissioners levied a tax on the lands of said district for the purpose of paying expenses in hiring counsel, surveyor and other expenses incident thereto in the sum of $1,200; “that pursuant to said levy, as petitioner is informed and believes, money sufficient to pay said obligations did come through the regular channels into the hands of the treasurer of said district”; that said obligations have been assigned to petitioner; that demand for payment of said warrants has been made on the treasurer of said district and he refuses to pay the same; wherefore petitioner prays, etc.

The defendants filed a demurrer both general and special to the petition, setting up practically (1) that the petition does not aver that an assessment was levied at the time or before the indebtedness was incurred, (2) that the petition does not pray that defendants pay the orders involved out of the funds of the district if any there be. The court sustained the demurrer and dismissed the petition at petitioner’s costs. The petitioner appeals to this court.

The only question before this court is the sufficiency of the petition. The petition avers that the appellee, a corporation, was organized in 1883 under the Farm Drainage Act, and that in June 1903, a controversy arose between the commissioners and the landowners with reference to cleaning the ditches, and that the liability was then incurred for which the orders were drawn after auditing the bills on March 10,1904, after an assessment had been made March 9,1904. It is not alleged in the petition that the work for which the orders were issued was preliminary to the organization of the district or for preliminary expenses necessarily incurred in anticipation of making an assessment. It does in fact appear from the allegations that the district had been organized nearly ten years before the contracts were made for which the orders sought to be collected by mandamus were issued and the work for which the orders were issued was connected with cleaning old ditches. Section 70 of the Farm Drainage Act (section 145 of chapter 42 of Hurd’s Statutes) provides, that the commissioners shall on or before December 1st of each year file with the county clerk a statement of the amount, if any, necessary to be levied to keep the work or any part thereof in repair for the year next ensuing, and it is the duty of the clerk to compute the pro rata share which each tract or parcel of land in said district shall have to pay to raise said amount, which pro rata share shall be in the same proportion as the assessment for the construction of said work. The commissioners had the same right to make an assessment in June, 1903, in anticipation of cleaning the ditches before the contracts were made, that they had in March, 1904, the day before they issued the orders. In Drainage Commissioners v. Kinney, 233 Ill. 67, where the district was organized under the Farm Drainage Act, it was held that an assessment levied to pay a contract indebtedness incurred before the assessment was levied is made without authority of law, and its collection may be enjoined. No authority has been called to our attention for the payment of contract debts out of subsequent assessments, and if any are found we think they will only apply to the payment of expenses preliminary to the organization of a drainage district. The rule that “Drainage commissioners have no power to create an indebtedness in advance, and then levy an assessment for the purpose of paying for it” is a wise one. Winklemann v. Drainage District, 170 Ill. 37.

It is insisted on behalf of appellant that, under the rule regarding drainage districts announced in Bradbury v. Vandalia Drainage District, 236 Ill. 36, drainage districts are municipal corporations and not quasi municipal corporations, and that the courts have modified the rule announced in Winklemann v. Drainage District (supra). The Bradbury case was a suit in tort, and not on a contract. In the Bradbury case it is said a drainage district is a corporation, but it is not created for political purposes or for the administration of civil government. Even corporations created for civil government, such as cities or other corporations, are not permitted to issue orders or to incur debts before assessments are made and the taxes are collected (Hurd’s Statutes, chap. 146a, sec. 1) except that after the taxes are levied they may issue orders in anticipation of the collection of the taxes already levied to the extent of seventy-five per cent of the tax levied, but such orders or warrants must show upon their face that they are payable solely from such taxes when collected. Hurd’s Statutes, chap. 146a, sec. 2. We hold that a drainage district organized upon a petition of a majority of the landowners- for the purpose of providing drainage for agricultural and sanitary purposes is bound by the statute under which it is organized, and is subject to the same general rules that govern other public corporations in the creation of contract debts and the issuing of-orders in payment thereof.

The petition nowhere states that the treasurer now has any money on hand or had any when the orders were issued. It simply avers that petitioner is informed and believes money sufficient to pay said obligations did come through regular channels provided by statute into the hands of the treasurer. The allegation should be such that an issue could be taken on it. It should have alleged that the money did come to and is in the hands of the treasurer. “The writ of mandamus will not be awarded in any case unless the relator shows a clear legal right to have the thing done and in the manner asked. It will never be ordered in a doubtful case. Every material fact necessary to show the plain duty of the respondent to act in the premises must be set forth by a party seeking to compel the performance of an act. * * * It must in all cases clearly appear that the officer against whom jurisdiction by mandamus is invoked, is actually in default in the performance of some act, which the law specially enjoins as a duty resulting from his office. These are inflexible rules, applicable to every mandamus proceeding against a public officer, settled by repeated decisions of this and other courts.” Swigert v. County of Hamilton, 130 Ill. 538; Cristman v. Peck, 90 Ill. 150; Gormley v. Day, 114 Ill. 185; People v. Town of Mt. Morris, 145 Ill. 427, 430.

The averment in the petition with reference to the results of this assessment leads to the conclusion, either that this assessment was not collected or that it was used in paying “the other expenses incident thereto.” It also appears that the orders were issued the day after the levy was made to pay them and they neither show on their face that they are payable solely out of such taxes when collected, nor that orders were not issued in- excess of seventy-five per cent of the levy. The Circuit Court properly sustained the demurrer and dismissed the petition for the reason that it was not averred that the money was collected and in the hands of the treasurer with which to pay said warrants, and that it also appears from the petition that the assessments were made to pay prior contract debts, and that the orders do not show on their face that they were payable solely from such assessment when collected.

Counsel have presented the question whether a proceeding for mandamus to compel the payment of these warrants is a proper legal remedy before the petitioner had obtained a judgment at law. In as much as we hold that the petition was insufficient for other reasons, it is unnecessary to express any opinion concerning that question. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Metropolitan Trust & Savings Bank, Administrator, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 5,070.
    Contributory negligence—when person in vehicle injured by railroad train guilty of. One who carelessly and recklessly drives his horse against the side of a railroad train regardless of the danger of colliding with a moving train already occupying the street upon which he was driving, is guilty of contributory negligence which will bar a recovery, notwithstanding there may have been negligence on the part of the railroad company.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Du Page county; the Hon. Duane J. Carnes, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed with finding of fact.
    Opinion filed October 19, 1909.
    Hopkins, Peffers & Hopkins, for appellant; Chester M. Dawes, of counsel.
    Coburn & Case and S. L. Rathje, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The Metropolitan Trust and Savings Bank, administrator of the estate of Edwin H. Johnston, deceased, began this action against the Chicago, Burlington & Quincy B. B. Co. to recover damages for the death of Edwin H. Johnston, for the benefit of the widow and next of kin, and alleges that the deceased was killed because of the negligence of the defendant. The negligence averred in one count of the declaration is that there was an ordinance in the village of Hinsdale requiring the railroad company to keep a flagman at the crossing of Lincoln street, the provisions of which the railroad company failed to observe; another count avers that there were gates at said crossing provided by the railroad company which it was the custom and practice of the defendant to lower before trains went over said crossing and that defendant negligently omitted to lower said gates at the time the deceased was killed. Each count avers that the deceased was in the exercise of due care. At the close of plaintiff’s evidence and of all the evidence the defendant requested a peremptory instruction which was refused. The jury returned a verdict in favor of plaintiff for $3,000 on which judgment was rendered and the defendant appeals.

The evidence shows that the deceased, who resided in Hinsdale at the time of his death, was a telegraph operator employed in the general offices of Armour & Co. in Chicago. On July 19,1905, he left Chicago on a train and arrived in Hinsdale about seven o ’clock p. m. On his arrival there he met two brothers named Papenhousen and Gustave Strume. It was suggested by one of them that they take a ride to the village of Fullers-berg, a mile or two north of Hinsdale. Johnston went to a livery stable on the north side of the Burlington tracks, secured a horse and surrey, then drove south across the tracks into an alley behind a house owned by E. H. Fleck, where the Papenhousens and Strume were waiting for him. There they secured nine bottles of beer. All four got into the surrey and drove to Fuller sberg, drinking the beer amongst them, Johnston drinking a couple of bottles. They “made a swing around Fuller sberg” and drove back to Hinsdale, arriving there about ten o’clock. Before the Burlington tracks were reached the Papenhousens and Strume got out of the surrey, leaving Johnston to return the rig to the livery stable which was some two or three hundred feet north of the track, and to get to which it was unnecessary to cross the tracks. Johnston, in place of going to the livery stable, drove across the tracks, and then from the east into the alley behind Fleck’s house. Fleck’s house fronts on Exchange street; Exchange street runs adjacent to and parallel with the Burlington tracks. The alley which is on the rear of Fleck’s place runs west to Lincoln street and Lincoln street runs north and south across the Burlington tracks. There are gates at the Lincoln street crossing and the gate tender’s tower is near the street crossing next south of Lincoln street. There is a building adjoining the alley in the rear of Fleck’s place from which the beer was secured, and it is about seventy-five feet from this building to Lincoln street. The property in the' block in which Fleck’s house is situated is vacant from his place to Lincoln street. The night was moonlight but the sky was more or less overcast with clouds. As Johnston drove up the alley towards Fleck’s he was driving on a run, whipping the horse. Fleck was in the lot west of the building from which the beer was obtained. A freight train was coming along the railroad from the north. As Johnston drove by, Fleck called to him using vulgar language, that a train was coming. Johnston called to him, “Go to -,” and drove on down the alley turning north on Lincoln street towards the railroad; at the turn the rig struck a tree which threw the horse on its knees but the horse recovered and went on towards the railroad on a trot, and collided with the side of the passing train about 160 feet from where the rig collided with the tree. When Fleck saw Johnston’s reckless driving he started across the vacant lot to head him off. A Mrs. Fraser, who was on Lincoln street, testified to seeing Johnston coming down the alley, the rig collide with the tree and drive on towards the railroad. When Johnston turned the corner the train was crossing Lincoln street and the gates were down. Mrs. Fraser testifies to the gates having been down and being raised up; to seeing the green light on the gate rise as the gate rose, and that she saw a brakeman’s lantern on the train passing, all about the time Johnston’s rig ran into the side of the train. The horse and Johnston were thrown towards the west, Johnston being found by the side of the west sidewalk and dying shortly thereafter; the surrey was by the side of the gate post.

There is no conflict in the testimony that the train could be heard and seen. Fleck and Mrs. Fraser, the only witnesses to the accident, both testify that they could see the rig seventy-five feet distant, and that the train could be seen and heard, and that Johnston undertook to drive over it while it was crossing the street. Mrs. Fraser and Fleck testify that the gates were down until the train was passing across the street and that the gates were raised with a green light on them just about the time Johnston reached them. The deceased from the evidence appears to have carelessly and recklessly driven his horse on a run against the side of the train, regardless of the danger of colliding with a moving train that was already occupying the street.

“There is not much room for a difference of judicial opinion where the traveler, with the courage of the Wandering Jew displayed when he parted his coat tails and received a shower of grape shot at close range at the battle of Wagram, or that Dagobert displayed when he rode upon a row of broken bottles—quietly walks, runs or drives against a moving train, contributory negligence being conclusively imputed to him.” Thompson on Negligence, Vol 2, Sec. 1672, and Note 460, as follows: “It is an amazing commentary upon human nature that the books present such cases, but here they are.” Chicago Board of Underwriters v. C. & E. I. Ry. Co., 44 Ill. App. 253; C. & A. Ry. Co. v. Blake, Admr., 125 Ill. App. 336; Lomby v. N. Y., etc., R. R. Co., 25 App. Div. (N. Y.) 309; Banning v. Chicago, etc., R. R. Co., 89 Iowa 74; Engrer v. O. & M. R. R., 142 Ind. 618; Hauser v. Central R. R. Co., 147 Pa. St. 440.

The act of the deceased in driving against the train was glaring and culpable negligence. While the railroad company was negligent in not having a flagman at the crossing as required by the ordinance, the evidence conclusively proves not only that Johnston was not in the exercise of due care but that he was guilty of negligence. It was error to refuse the peremptory instruction. The judgment is therefore reversed with a finding of fact. Reversed.

Futdiug of Fact : The deceased was killed because of his own recklessness and want of ordinary care.


text:
    Jeremie Martin, Appellee, v. Martin Porter, Appellant.
    Gen. No 5,090.
    1. Damages—what not competent in action for injury to land resulting from diversion of natural flow of water. In such an action damages are not shown by the testimony of a party to the effect that he considered that he was injured in a certain sum each year; the facts should be shown from which the conclusions may be drawn by the jury.
    2. Damages—to whom action accrues for diversion of natural flow of water. If the injury results from a temporary structure the cause of action is in the tenant if there be a tenant in possession under a term lease. If, however, the injury is occasioned by a permanent structure then the damages are to be recovered in an action by the owner of the reversion.
    Action in case. Appeal from the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    H. K. & H. H. Wheeler, for appellant.
    A. L. Granger and W. G. Brooks, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is a suit in case brought by Jeremie Martin, appellee, against Martin Porter, appellant, to recover damages alleged to have been caused to land owned by Martin, by reason of Porter filling a ditch and thereby damming up water and overflowing the land of Martin.

The declaration contains three counts. The first alleges in substance that the plaintiff, on the first of March, 1901, was the owner of a certain forty acres of land in Kankakee county, that the land was leased to one Boudreau, the reversion on the termination of said lease to be in the plaintiff; that on April 1, 1901, the defendant, owning land lying east and adjoining that of plaintiff, wrongfully built a levee on the west side of defendant’s land, next to that of the plaintiff, without sufficient openings to permit the free passage of water; that by reason thereof the flow of large quantities of water, which naturally flowed upon and over the premises of defendant, was obstructed and diverted upon the land of plaintiff and injured it, and the land became swampy and the plaintiff was damaged in his reversionary estate. The second and third counts allege in substance, the ownership of the adjoining lands by the respective parties and the construction of a ditch over the lands of the parties to this suit and the lands of others by agreement in 1879, and that in April, 1901, the defendant wrongfully and unlawfully, without the consent of the parties, constructed a levee across the ditch, thereby obstructing the flow of water, etc., and thereby caused damage to the reversionary estate of the plaintiff; the third count in addition to alleging damages to the reversionary estate also alleges that plaintiff was injured and aggrieved in his rents and profits from the land. The defendant pleaded the general issue. The case was heard before the court without a jury. A judgment was rendered in favor of plaintiff for $165, and the defendant appeals to this court.

The record shows that Porter owns land lying east of and adjoining the land of Martin. Parties of the name of Dayton and Lines own land lying west of and adjoining the land of Martin. Martin bought his land from the heirs of one Miner in February, 1901. In 1879 the owners of these lands made a joint ditch across their respective lands which conveyed the water towards the east from Dayton’s land across that of Miner, now owned by Martin, and from Miner’s land over Porter’s land .towards an outlet further east. This ditch was from ten to twelve feet wide at the top, from four to six feet wide at the bottom and from one and a half to two feet deep across the land of Porter. In 1900 the owners of these lands made an oral arrangement to lay a tile drain under the ditch, and engaged a surveyor to make plans and apportion the cost of laying the tile to the respective landowners. The surveyor made plans for the improvement and prepared an agreement apportioning the cost to the parties. Porter and Dayton signed the agreement, bnt it was not signed by the other parties for the reason that they were dissatisfied with the apportionment of the expense. Porter afterwards told Miner that he would go ahead and lay the tile across his own land, and in 1900 he did lay a tile in a trench' dug for it in the bottom of the ditch. It is disputed, however, whether that tile was laid up to the line of the land now owned by Martin. Porter testified that it was laid to the division line, but others testified that it was only laid to within about five rods of the line. The evidence shows that the east end of the drain was laid with eight inch tile, and at the west end, where it approached Porter’s land, five inch tile was used. The five inch tile was smaller than that provided for in the plans of the surveyor, and it was not laid as deep as was called for by the plans. When Martin bought the Miner land the tile was laid, but the trench dug for it was not filled up at the west end near Martin’s land for several months after he purchased, when Porter filled both the tile trench and the open ditch which had been there for over twenty years. There was also proof tending to show that the damages sued for were caused by the building by the owners of the lower land of a slight dam at the line between the two properties. This filling of the ditch by Porter or the building of the dam prevented the water from flowing as it had since the construction of the old open ditch. There was proof that by the fill-' ing up of the open ditch or by the dam, water was backed up and stood upon or did not run off of several acres of Martin’s land and that it was damaged thereby. Martin did not farm the land but it was rented to J. J. Boudreau for the years 1901 and 1902, and a new lease was made to the same tenant for 1903, which was renewed for 1904. The same tenant was still in the possession of the land when this suit was begun.

It is assigned for error that the court admitted improper evidence on the part of appellee upon the question of damages, and that the court erred in the refusing of proper evidence on the part of appellant. The only evidence offered and admitted concerning the amount of the damages was as to the amount of the damages to the land annually caused by the overflow for the years 1901, 1902, 1903 and 1904. The proof showed that the lease was in writing. The lease itself was not produced and appellee testified that under the lease he was to receive cash rental for the pasture land and one-half of the grain raised on the arable land. Appellee also testified that he was damaged about $75 for the year 1902, $55 in 1903 and more than that sum in 1904. The oral evidence concerning the leasing was properly excluded and the written lease was not offered in evidence.

The appellee it is true did testify that he considered he was injured a certain sum in each year, but he did not show the facts upon which his conclusions were based; and it was necessary that the leases should be in evidence to show what interest if any he had in the lands. The evidence concerning the leasing being excluded, there was then left no proper evidence in the case upon which more than nominal damages could be assessed. If the land was rented for a cash rental then it would seem that it was the tenant that was injured and not the appellee. The proof also fails to' show whether the injury was caused by a temporary structure or dam or by a permanent structure. "When a new lease was made then the injury had accrued to the reversionary interest, if the injury was of a permanent nature, and damages did not thereafter accrue to the appellee by way of a loss of rentals. If the injury was caused by a temporary dam and not a permanent structure, then the damages were not to the reversionary interest. When damages to land are caused by a nuisance of a permanent character which is properly constructed, or which is treated as permanent by the parties, there can be but one recovery, and the measure of damages in the recovery is the damages in depreciation to the fair cash value of the land. Chicago & E. I. R. R. Co. v. Loeb, 118 Ill. 203; Kankakee & Seneca R. R. Co. v. Horan, 131 Ill. 288, and cases cited on page 303; 3 Sutherland on Damages 392, and Avery v. Vermont Electric Co., 59 L. R. A. 817, and note on pages 893 and 898. There being no proof in the record authorizing a judgment for more than nominal damages, the judgment for $165 cannot be sustained.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    James Doyle, Appellant, v. John C. Owen, Appellee.
    Gen. No. 5,116.
    1. Physicians and surgeons—liability in action for malpractice. In an action for malpractice the jury have a right to consider the had result in connection with all the other evidence in arriving at the fact as to whether negligence has been proven against the surgeon; hut it is proper in such an action to instruct the jury that the mere fact that a cure is not effected, alone or of itself is not evidence of negligence.
    2. Physicians and surgeons—what not defense to action for malpractice. Even though the carelessness of the patient has contributed somewhat to the had result shown by the evidence, nevertheless the surgeon is liable if it appears that he unskillfully and negligently treated the case; but the liability of a surgeon in such a state of facts is limited only to those damages which were the result of his own negligence and unskillfulness.
    Action on the case. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    Donahoe, McNaughton & McKeown, for appellant.
    E. Meers, for appellee; Joseph W. Jones, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by appellant against appellee, a physician and surgeon, to recover damages alleged to have been sustained in consequence of the alleged unskillfull and negligent manner in which appellee treated the fracture of a leg of appellant between the knee and ankle. A statement of the facts or discussion of the evidence introduced on the trial is not regarded as essential, as the decision of the case must turn upon the instructions given by the court at the request of the appellee.

On a trial before a jury a verdict was rendered in favor of appellee, defendant. The rule is well settled by the authorities that where the evidence is conflicting on the main controversy in the case the instructions should be accurate. In this case the evidence was conflicting as to whether the condition of appellant’s leg was caused by a disobedience by appellant of the instructions of appellee or whether it was caused by unskillful surgical treatment.

The 9th instruction given for appellee told the jury that “the mere fact that a cure was not effected is no evidence of negligence on the part of the defendant; but before the plaintiff can recover he must prove that the defendant was guilty of some negligence in causing the injuries and that he himself was free from any acts of carelessness or negligence which contributed to such injuries.” The original injury may have been caused solely by the negligence of the plaintiff, and the treatment by the surgeon have been very negligent, yet under this instruction there could in such case be no recovery. The instruction should have limited the contributory negligence to the injuries alleged in the declaration.

The 10th instruction told the jury “that they cannot draw the conclusion of neglect on the part of the defendant from proof of what the result of the treatment was: that the burden of proof is on the plaintiff to show by the greater weight of the evidence that the treatment complained of was improper; unless you can say under your oath as jurors that the evidence shows improper treatment of the plaintiff by the defendant, it is your duty to find the defendant not guilty.” These instructions (9 and 10) should have stated that the mere fact that a cure is not effected alone or of itself is not evidence of negligence. The fact that there was a bad result was evidence to be considered with all the other evidence in the case in arriving at the fact as to whether negligence had been proved against the defendant. The jury would not be authorized from the mere fact that a bad result was obtained to render a verdict against the defendant, but that evidence should he considered with all the other evidence in deciding the question whether the defendant was negligent. This instruction is also misleading as to the degree of proof required. The eleventh instruction is subject to the same criticisms.

The 6th instruction given on the part of the appellee told the jury that if the plaintiff during the treatment by the defendant was guilty of any acts of carelessness which contributed to the injuries complained of he is not entitled to recover in this suit. The evidence tended to show, on the one side, that the appellant in the earlier treatment of the case had not received instructions from the surgeon with reference to the care to be observed by him while under treatment; on the other hand, the proof tended to show that full instructions were given by the surgeon and were disregarded by the appellant. “Even though no instructions are given a patient, he is required to exercise such ordinary prudence as would be expected of a person situated in his condition, and a failure on his part to exercise this prudence will prevent recovery.” “Where however liability for malpractice has been incurred, subsequent negligence of the patient * . * * of such nature as to aggravate the injury, does not discharge the liability of the physician, but merely goes in mitigation of damages.” 22 Am. & Eng. Encyc. of Law, 807 (2nd Ed.). If it were true that carelessness on the part of the appellant in the first part of the treatment contributed somewhat to a bad result and the injuries arising therefrom, and that the surgeon unskillfully and negligently treated the case thereafter, the fact that the appellant may have been negligent and caused some injury to himself would not relieve the surgeon from any damages that might have been sustained because of such subsequent negligence of the surgeon, if any, but the surgeon would be responsible for all the damages that were the direct result of his subsequent negligence; a surgeon will not be relieved from responding in damages for subsequent negligent treatment because the appellant had previously thereto been negligent or careless. If the negligence of a patient contributed proximately to the injuries, then there can be no recovery, but negligence on the part of a patient is not a bar to recovery where it did not contribute proximately to the injuries caused by a surgeon’s malpractice. The evidence is very conflicting as to the cause of the injuries alleged in the declaration. The 6th, 9th, 10th and 11th instructions should have been more carefully guarded on the foregoing propositions, and being misleading and liable to erroneous interpretations, the judgment is reversed and the cause remanded because of such misleading instructions.

Reversed and remanded.


text:
    Michael Cleary, Administrator, Defendant in Error, v. Bloomington, Pontiac & Joliet Electric Railway Company, Plaintiff in Error.
    Gen. No. 5,143.
    1. Contributobt negligenoe—when passenger riding in vestibule of traction car not guilty of. Notwithstanding a printed request that passengers shall not ride in the front vestibule of a car, yet it is not contributory negligence for a passenger so to do if the car is otherwise crowded and his fare is collected by the conductor in the presence of the general manager of the road and no objections made to his riding in such front vestibule.
    2. Negligence—when collision result of. Held, under the evidence, that the collison in question in this case was the result of the negligence of the motorman of the traction car upon which the plaintiff was riding in failing to use the means at his disposal to bring his car to a full stop; it being further held that it was negligence not to stop such car even though it might result in injury to the electrical apparatus of the defendant company.
    3. Passenger and carrier—care required of latter. A carrier of- passengers is bound to do all that human care, vigilance and foresight can reasonably do, consistently with the mode of conveyance, the practical operation of its road and the exercise of its business as a carrier, for the safety of its passengers.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    A. C. Norton, John M. Raymond and John K. Newhall, for plaintiff in error.
    R. S. McIlduff and B. R. Thompson, for defendant in error; John M. Cleary, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

This is a writ of error prosecuted from a judgment for $3,534.50, rendered in an action in case begun by-defendant in error, as administrator of the estate of William P. Cleary, deceased, against the Bloomington, Pontiac and Joliet Electric Railway Company, plaintiff in error, for, as averred, negligently causing the death of the intestate. No question is raised on this writ of error concerning the pleadings, upon any ruling concerning the evidence, or upon the giving or refusing of instructions. The only question presented by the plaintiff in error is its contention that the deceased was not in the exercise of due care and lost his life because of his own negligence.

■ The evidence shows that plaintiff in error owns and operates an electric interurban railway from the city of Pontiac to the village of Dwight. About a mile and a half north of Pontiac on the line of plaintiff in error’s railway there is a baseball park; some distance north of the ball park is a stopping place called Cayuga; northeast of this is what is known as the viaduct; at the viaduct is a curve; about one mile northeast from the viaduct is Nettleton’s crossing; about 1500 feet northeast from Nettleton’s crossing is Klein’s crossing; the village of Odell is northeast of this, being about midway between Pontiac and Dwight. The plaintiff in error owned and operated two cars, each forty-three feet in length, one called the Dwight, having seating accommodations for forty-six persons, and the Pontiac, having seating accommodations for forty-two persons. The deceased was a druggist conducting his business in the city of Pontiac, but residing in Odell, and riding to and from his place of business and residence over the line of plaintiff in error. On Sunday, August 4, 1907, at 5:30 p. m., the deceased got on the car Pontiac, at Pontiac, to go to his residence. The car Pontiac had a vestibule at each end, about five feet by seven; the front of the car from the roof to about four feet from the floor was of glass construction, the partition between the vestibule and the passenger compartment being of wood with a door opening from each vestibule into the passenger compartment, which had an aisle down the center. The floors of the vestibules were six or seven inches below the floor of the passenger compartment. In each vestibule was a controller, operated by the motorneer, for regulating the current of electricity from the trolley into the motor under the car; by the side of the controller was a lever which operated the air brakes, and at the side of the air brake was a hand brake. The cars were geared to run from thirty to forty miles an hour.

On the day of the accident a Chautauqua was being conducted in the city of Pontiac and there was also a ball game at the park. Passengers entered the car by a side door into the vestibule and thence through the door into the passenger compartment. When deceased entered the car there were but few passengers and many vacant seats, but he remained in the front vestibule, sitting on a stool which was ordinarily used by the motorneer. There was posted up in each vestibule a notice: “Tour safety depends very largely upon the motorman giving his entire attention to his duty. For this reason passengers are requested not to ride in the front vestibule if there is room in the car. James H. Hessin, General Manager.” The attention of the deceased had been previously called to this notice, but notwithstanding that he had been in the habit of riding in the vestibule, claiming that the air inside was oppressive to him, he being a man weighing about 190 pounds, five feet five inches high, afflicted at the time with some heart difficulty and recently having had an attack of pneumonia. When the car passed the ball park there were in it about 86 registered passengers and some unregistered ball players, many of the passengers being obliged to stand. The car Dwight was just ahead of the Pontiac, and the cars ran close together from the ball park. The front car stopped at Cayuga, but the Pontiac only slowed down until the front car got out of the way. From the curve at the viaduct to Klein’s crossing there is a down grade of over twenty-eight feet; the motorneer had charge of the controller when the car started from Pontiac; the general manager Hessin was on the car the deceased was on and soon after leaving Pontiac took charge of the controller and was managing the motor power of the car from that time until the accident happened. The deceased was occupying the motorneer’s stool in the front vestibule where were also the motorneer and the general manager when his fare was collected, but none of them made any request of him to go into the other part of the car. When the car Pontiac came around the curve at the viaduct it was going about forty miles an hour and the general manager discovered when Nettleton’s crossing was called that he could not stop the car because the brake did not work. The front car was then near Klein’s crossing and was having trouble with its trolley and going slowly. The conductor on the front car was riding on the rear bumper; the general manager permitted his car to overtake the head car and motioned to the conductor of the front car to go ahead, calling to him that he could not stop his car; the .conductor of the front car signalled to his motorneer to go ahead; the rear car continued at a high rate of speed until within twenty feet of the front car, when the general manager reversed the power, but the car ran into the front car with great force, jolting it ahead and then came on and struck it the second time. By the collision the deceased was so injured that he died three days thereafter. The general manager testified that after discovering that the brake would not work he could have stopped his car by reversing the power and running the wheels backwards, but by doing so he would disconnect the power in the powerhouse in Pontiac, and both cars would then be without power; that he did not want to do this and did nothing more while the car went 1,500 feet, except to wave to the conductor on the front car to go ahead and to call to him that he could not stop his car. The evidence clearly shows that the general manager for some time before the accident knew that the brakes were not working on the car that he was controlling; and that he could have stopped it by reversing the power, but did not want to do this because of what would happen at the power house. This does not appear to be a good reason or excuse for not reversing the power when the lives of passengers were at stake. The car was going very fast on a rapid down grade and the manager knew before reaching Nettleton’s crossing that he could not control the car with the brakes because they would not work. When it appeared that the front car was running slowly, having trouble with the trolley, and that the rear car was running very fast, overtaking the front car, and the brakes would not work, it was negligence to run within twenty feet of the front car before reversing the power, even if damage would thereby be caused to plaintiff in error’s electrical apparatus at the power house.

There is no evidence showing that any attempt was made to use the hand brake. The evidence also tends to show that the failure of the air brake to work was caused by the excessive loading of the car, which caused the* car to settle down on the trucks which, in some way, interfered with the operating of the brakes.

A carrier of passengers is bound to do all that human care, vigilance and foresight can reasonably do, consistently with the mode of conveyance, the practical operation of its road and the exercise of its business as a carrier, for the safety of its passengers. C. & A. R. R. Co. v. Arnol, 144 Ill. 261. The circumstances under which the collision occurred strongly tended to show gross negligence amounting to wantonness on the part of the plaintiff in error in the management of its car. E. J. & E. Ry. Co. v. Duffy, 191 Ill. 489; I. C. R. R. Co. v. Leiner, 202 Ill. 624.

The notice posted in the car was simply a request to passengers not to ride in the front vestibule so as not to distract the attention of the motorneer, and they were not to ride in the vestibule if there was room in the car. There was no room in the passenger compartment of the car, at the time of the accident, as there were double the number of passengers in the car that it was intended to carry. The fact that the deceased was in the front vestibule is the only matter that is urged as a want of care on his part. The general manager was there at the time, saw the situation of the deceased in the vestibule, and the conductor collected his fare while he was in the vestibule without objection. From the evidence of the manager it is shown that passengers rode on the front vestibule daily without objection by the manager or other employes. The fact that the deceased was in the vestibule cannot reasonably be urged as contributory negligence on his part, when he was occupying a seat there, and there were neither vacant seats nor standing room elsewhere. Judgments have been sustained under circumstances very similar, in Petersen v. E. A. & S. Trac. Co., 238 Ill. 403; C. & A. R. R. Co. v. Fisher, 141 Ill. 614; Metropolitan W. S. E. Ry. Co. v. Kowalski, 139 Ill. App. 89. Under the circumstances shown by the evidence in this case the question whether the proof showed that the deceased was in the exercise of ordinary care at the time he was injured was properly left to the jury, and we would not be justified in saying the judgment is not sustained by the evidence.

The judgment is affirmed. Affirmed.


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    The People of the State of Illinois, Defendant in Error, v. C. Albert Johnson, Plaintiff in Error.
    Gen. No. 5,148.
    1. Instbuctioks—when should he accurate. In a criminal case where the evidence is conflicting and the issue of fact in doubt, the instructions should he accurate.
    2. Instbuctions—must not assume facts in dispute. In a close case an instruction which assumes the existence of a fact in dispute, is ground for reversal.
    Prosecution for unlawful sale of liquor. Error to the Circuit Court of Winnebago county; the Hon. Robert W. Weight, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    J. E. Goembel, for plaintiff in error; Walter E. Healy, of counsel.
    Harry B. North and Charles W. Fergusow, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

The grand jury of Winnebago county returned an indictment consisting of twenty-six counts against C. Albert Johnson, plaintiff in error, and one Albín A. Johnson, charging that the defendants had unlawfully sold intoxicating liquor in the town of Bockford, in Winnebago county, while the town of Bockford was anti-saloon territory. On a trial "before a jury the defendant, C. Albert Johnson, was found guilty upon the second and third counts and Albín A. Johnson was acquitted. After the usual motions judgment was rendered upon the verdict assessing against C. Albert Johnson a fine of $100 and that he be committed to the county jail for twenty days on the second count, and that he pay a fine of $50 upon the third count. From that judgment C. Albert Johnson prosecutes this writ of error.

The second count alleges a sale of liquor was made, on the 22d of December and the third count alleges a sale on the 23d of December. The counts under which both the defendants were acquitted allege sales at various times by the defendants from December 20, 1908, to January 9,1909, in the town of Bockford, while said town was anti-saloon territory.

The evidence upon which the plaintiff in error was convicted was given by Henry Hebert and E. Bringmann, two detectives who live in Chicago and are employed by the United States Detective Agency. These detectives were engaged by parties residing in Bock-ford to come there to procure evidence against the defendants and to try to procure their conviction, and were paid by the president of a “Law and Order League” a certain amount per week and their expenses. These witnesses both testified that they bought lager beer in a place of business run by the defendants on Seventh street in the town of Bockford, from one Henry Johnson and Albín A. Johnson. Bringmann testified that C. Albert Johnson was present on December 22 and December 23 during the day time when he bought lager beer in the Johnson place of business.

On the other hand the evidence of Henry Johnson, C. Albert Johnson and Albín A. Johnson is that there was neither whiskey or lager beer in Johnson’s place of business and that no lager beer or whiskey was sold there to any party, and that C. Albert Johnson was not there from December 21 to December 24, but that he was in Freeport every day from seven o’clock in the morning until between six and seven o’clock in the evening. C. Albert Johnson also testified that he never saw Bringmann before the day of the trial.

In this state of the evidence it was very important that the instructions should be accurate and not assume any fact material to be proved. The third instruction given on behalf of the People is as follows:

“The court instructs the jury that each sale of intoxicating liquor proven beyond a reasonable doubt from the evidence in this case against the defendant, or defendants, constitutes a separate, violation as to such defendant or defendants, and the jury should so find by their verdict, providing the whole number of counts shall not exceed the number of counts in the indictment. ’ ’

This instruction assumes that sales of intoxicating liquor have been proven beyond a reasonable doubt. When the evidence is as close as it was in this ease jurymen are very liable to watch very closely for some intimation from the court as to what the opinion of the court may be. This instruction was very liable to be taken by the jury as an intimation that the defendant or defendants were guilty. The word “count” was also used in the place of “sale,” otherwise the last phrase of the instruction is without meaning.

Because of the giving of the third instruction the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Mary Gruber, Plaintiff in Error, v. La Salle County Carbon Coal Company, Defendant in Error.
    Gen. No. 5,152.
    1. Mines and Miners Act—limitation as to commencement of action under. Prior to the act of July 1, 1907, the right of action given to the widow of a person killed could be commenced at any time within five years from the accrual of the cause of action.
    2. Mines and Miners Act—limitation amendment of July 1, 1907, construed. The act of July 1, 1907, providing that actions by the widow of a person killed should be commenced within one year after the death of such person is not retroactive in effect.
    3. Statutes—when not given retroactive effect. A statute will only be given a retroactive effect when it was clearly the intention of the legislature that it should so operate.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of La Salle county; the Hon. Edgar Eldeedge, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    J. L. Murphy, for plaintiff in error.
    McDougall, Chapman & Bayne, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by Mary Gruber, plaintiff in error, against the LaSalle County Carbon Coal Company, defendant in error. The suit was begun January 10, 1908. The declaration was filed May 27,1908, and alleges that the defendant company was operating a certain coal mine in said county on the thirteenth day of January, 1906, and that John Gruber, the plaintiff’s husband, was working in the mine as a miner before and on that day and that at his working place he was exposed to a dangerous condition in the roof of the place that had long been there; that he had to work exposed to a bad roof having treacherous places liable to fall on him and other defective places liable to cause a fall of rock from the roof and injure him; that defendant wilfully failed to cause proper marks or danger signals to be placed thereat as required by the laws of Illinois; that by reason thereof a fall of a great quantity of rock occurred there on that day and killed John Gruber, and that by his death plaintiff and her son Mat, Ms only heirs, were injured and damaged. The defendant pleaded the general issue and that the supposed causes of action in said declaration mentioned did not nor did any of them accrue to the plaintiff at any time within one year before the commencement of this suit, etc. The plaintiff demurred to the special plea of the statute of limitation. The court overruled the demurrer and rendered judgment against the plaintiff. This writ of error questions the ruling of the court on the demurrer.

At the time of the death of John G-ruber, the fourth paragraph of section 33 of chapter 93 of the Statute of Illinois, entitled An Act in Eelation to Coal Mines, provided that a right of action shall accrue to the widow of the person killed and to Ms lineal heirs for the recovery of damages sustained by the loss of life occasioned by the wilful violation or failure to comply with the provisions of the act, not to exceed the sum of $5,000. The statute in force in 1906 concerning coal mines contained no limitation of time within which the suit might be brought to recover damages for a death, and the only limitation upon such causes of action is contained in section 15 of chapter 83 entitled Limitation, wMch limits the bringing of all civil actions- not otherwise provided for to five years. On the 17th of May, 1907, the fourth paragraph of section 33 of the act relating to coal mines was amended by increasing the amount for which a recovery might be had to $10,000, and also by providing that every such action for damages in case of death should be commenced ..within one year after the death of such person. This act took effect July 1,1907.

Under the law in force when plaintiff’s intestate was killed she had until January 13,1911, in which to bring suit. One year and four months had passed since the death of the deceased, when the legislature amended the section under which the suit was brought by restricting the time for beginning such suit to one year after his death. If this suit had been started between May 17, 1907, and July 1, 1907, the suit would have been within the time the law at that time permitted such suit to be brought; but it is contended that after July 1, 1907, the plaintiff was barred from bringing any suit. There is nothing in the act of 1907 to indicate that a retroactive effect was intended. There is nothing in the amendment to indicate that it was intended that the amendment should apply to causes of action which arose before the amendment took effect.

Sections two and four of chapter 131 of the Statutes of Illinois entitled “Construction of Statutes,” provide: “That the provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such prior provisions and not as a new enactment,” and that “No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not * * * or any right accrued, or claim arising under the former law, or in any way whatever to affect * * * any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding.” In Hathaway v. Merchants Trust Co., 218 HI. 580, where an analogous question was involved, it was said: “While it is undoubtedly within the power of the legislature to pass a statute of limitation or to change the period of limitation previously fixed and to make such statutes or changes applicable to existing causes of action, yet such a statute is not to be readily construed as having a retroactive effect, but is generally deemed to apply merely to causes of action arising subsequent to its enactment, and the presumption is against any intent on the part of the legislature to make the statute retroactive. (19 Am. & Eng. Ency. of Law, 2d Ed. 174; Robertson v. Wheeler, 162 Ill. 566; Spaulding v. White, 173 Ill. 127.) The statute will only be given a retroactive effect when it was clearly the intention of the legislature that it should so operate. (Fisher v. Green, 142 Ill. 80.) And even when this intention clearly appears it will not be given effect, if to do so would render it unreasonable or unjust. If a reasonable time is given for bringing a suit or filing claims after the. amendment takes effect it may be valid and binding.” Ryhiner v. Frank, 105 Ill. 326; 19 Am. & Eng. Encyc. of Law, 2d Ed. 168; Walker v. People, 202 Ill. 34; Wood on Limitation of Actions, 28; Rock Island Nat. Bank v. Thompson, 173 Ill. 593, affirming 74 Ill. App. 54; O ’Donnell v. Healy, 134 Ill. App. 187; Roth v. Eppy, 80 Ill. 283. We are of the opinion that the amendment passed by the legislature in 1907 does not bar the plaintiff of her cause of action, and that the court erred in overruling the demurrer. The judgment is reversed with directions to the trial court to sustain the demurrer to the special plea.

Reversed and remanded.


text:
    Collins & Burgie Co., Appellee, v. A. Silver, Appellant.
    Gen. No. 5,158.
    1. Contracts—by whom construed. Whenever on a trial before a jury the meaning of a written contract is brought into question, it is the duty of the court to construe and interpret the contract and to inform the jury what its lawful effect and meaning is.
    2. Contracts—what considered in construction of. In seeking to ascertain the intention of the parties to a written contract regard will be had to the practical construction, if any, which the parties by their conduct have given to the contract.
    Assumpsit. Appeal from the Circuit Court of Boone county; the Hon. R. W. Wright, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    W. C. DeWolf and W. L. Pieroe, for appellant.
    R. K. Welsh, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The Collins & Burgie Company is a corporation engaged in the manufacture of stoves at Marengo, Illinois. On October 5, 1907, its plant was partially destroyed by fire. On November 16, it entered into a written contract to sell certain scrap iron and machinery to A. Silver, a dealer in junk and scrap iron at Belvidere, Illinois. After the fire and prior to-November 15, 1907, it leased from the Marengo Foundry and Machinery Company a new gasoline engine and temporarily placed it in its foundry for the purpose of running the blower. After the making of the contract for the sale of scrap iron and machinery, Silver desiring to have some screenings and small scrap iron melted into pig iron, contracted with the Collins & Burgie. Company to do this work. After Silver had removed most of the material and the contract had been made to melt the small scrap for the purchaser thereof, a disagreement arose between the parties; the company claimed that Silver had taken and was taking things not included in the written contract, and Silver then asserted that he had the right to take the gasoline engine alleged to be worth over $500. The company denied the right of Silver to take the gasoline engine and brought suit upon the contract for the balance thereon and the work it had done in melting down the scrap iron and for things it claimed Silver had taken that were not included in the contract. There was a verdict and a judgment for plaintiff for $462.24 which is evidently made up of the $278.34 due on the contract and the $183.90 claimed for melting the scrap iron. From that judgment the defendant appeals.

The court construed the contract of sale not to include the gasoline engine, and the only question raised is whether the court erred in construing the contract. It is claimed by appellant, first, that the language of the contract includes all the machinery in the plant, is unambiguous and that there is nothing to construe; second, that if the court should construe the contract, then that the court should have construed the contract to have included this engine. The defendant paid on the contract $1,917.80; the plaintiff bought back of the material sold $103.86 under the terms of the contract, thus leaving a balance of $278.34 unpaid on the contract ; the plaintiff claimed that $183.90 was due it for melting scrap iron under a subsequent contract between the parties.

The contract of sale signed by the parties purports to sell “The following machinery and scrap iron belonging to said company and now in the factory at Marengo. * * * All scrap iron and machinery in the store room and mounting room and melting room and in the north and south ends of the foundry except and reserving the big blower and cupola in the foundry and all tools belonging to said blower and cupola and all scrap iron on the south side of the main east and west runway in the foundry; said scrap iron lying west of barrels of stove facing and except all stove plate used by moulders moulding; the said Collins and Burgie Company also reserves * * * and have the privilege of buying the pig-iron just made by said Collins and Burgie Company at $10 per ton * * * and also have the privilege of buying back from said Silver any machinery the company may wish to keep at $15 per ton * * * said Silver agrees to pay for said machinery and scrap iron the sum of $2,300 as follows * * * The machinery said Collins and Burgie Company may wish to purchase of said Silver to be selected by November 25, 1907. There are two piles of scrap iron in the south end of the foundry. The pile lying in the southwest corner being reserved by said Collins and Burgie Company. * * *”

The evidence shows that the plaintiff selected and reserved scrap iron from that sold to the amount of $103.86; that the appellant early in December desired appellee to melt certain screenings and small scraps and asked the appellee on what terms it would do this work. On December 7th, the appellee wrote a letter to appellant giving the terms, which included $2.50 per day for the use of the gasoline engine over which the controversy afterwards arose, and the re-melting was done by appellee using this gasoline engine which appellant now claims was his under the original contract made upwards of a month before. The appellant with his sons and employes were about the foundry removing the- material purchased by appellant much of the time the gasoline engine was being used by appellee in melting the scrap under the contract with appellant, and agreed to pay appellee for its use. Naturally he would not pay $2.50 per day for the use of an engine that belonged to himself. The appellant claims that the melting was done under a different contract, but the finding of the jury shows that the jury found the contract as claimed by appellee. The gasoline engine was on the west side of the foundry, but neither in the north end or the south end although south of the main runway. It was neither scrap iron nor scrap machinery but was a new engine that did not belong to appellee when the contract of sale was made, and had been rented by appellee for use in connection with the blower in the foundry and was attached to the blower.

Whenever on a trial before a jury the meaning of a written contract is brought into question it is the duty of the court to construe and interpret the contract and to inform the jury what its legal effect and meaning is. Chickering v. Bastress, 130 Ill. 206; Danziger v. Pittsfield Shoe Co., 204 Ill. 145; Dunn v. Crichfield, 214 Ill. 292; Mich. Central Ry. Co. v. Osmus, 129 Ill. App. 79. “It is a familiar rule of constant application that courts give effect to all written instruments according to the ordinary, popular meaning of the terms employed when nothing appears to show they were used in a different sense and no unreasonable or absurd consequence will result from doing so.” “ There is, however, another well known rule of construction applied to written instruments, viz: that in construing a written contract the court will endeavor to place itself in the position of the contracting parties, and read the instrument in'the light of the circumstances surrounding them at the time it was made and of the object which they then evidently had in view, so that the court may understand the language used in the sense intended by the parties using it.” Close v. Browne, 230 Ill. 228; Torrence v. Shedd, 156 Ill. 194; Whalen v. Stephens, 193 Ill. 121. If the “intention of the parties to a written contract is sufficiently apparent, effect must be given to it in that sense, though violence be done thereby to its words, for greater regard is to be had to the clear intent of the parties than to any particular words which may have been used in the expression of the intent.” Dowiat v. People, 193 Ill. 264; Walker v. Douglas, 70 Ill. 445; Torrence v. Shedd, supra. “In seeking to ascertain the intention of the parties to a written contract regard will be had to a practical construction if any which the parties by their actions have given to the contract.” Whalen v. Stephens, supra; Leavers v. Cleary, 75 Ill. 349.

When appellee, on December 7th, wrote to the appellant giving the prices it would charge for the different items of expense entering into the labor of melting scrap iron and included the use of this gasoline engine at $2.50 per day and appellant accepted that offer and the work was done for appellant with this engine, which it now claims to own and for which he contracted to pay $2.50 per day in the melting of small scraps, a reasonable construction was given to the contract which is binding upon the parties.

The acts of appellant resolve all possible doubt of the construction of the contract against himself. Under the contract, the appellee only sold the property belonging to itself and it would be a very unreasonable construction of the contract to include a new gasoline engine in the sale of scrap iron and scrap machinery. The trial court held properly that the gasoline engine was not included in the contract for the reason that appellant so construed it, and it was only after trouble arose from his taking property he had not bought, that he seeks to make the present claim. The judgment is affirmed.

Affirmed.


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    City of Spring Valley, Appellee, v. Pacific Franckey et al., Appellants.
    Gen. No. 5,164.
    Cities, villages and towns—power of city council to compromise litigation. The city council of a city has power to enter into a valid compromise of pending litigation to which the city is a party.
    Action commenced before justice of the peace. Appeal from the County Court of Bureau county; the Hon. B. F. Thompson, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed.
    Opinion filed October 19, 1909.
    J. L. Murphy, for appellants.
    C. N. Hollerich, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

In August, 1908, Pacific Franckey and Minnie Franckey were arrested under a warrant issued by a justice of the peace of Bureau county, upon a complaint charging them with keeping a house of ill fame in violation of section six of the ordinances of the city of Spring Valley. By agreement between the city attorney and the parties the Franckey case and several other cases in which the defendants were charged with the same offense were tried together by a jury in the justice’s court. The defendants were found guilty and the Franckeys were fined $200 each; fines varying from $25 to $100 were assessed against the other defendants. The costs amounting to $87.50 were also taxed against the defendants. The defendants appealed to the county court. In the county court, after the cause was set for trial at the October term, the hearing was continued to November 9th. On October 19, 1908, the costs in the case amounted to $140.45. The defendants in the meantime had been negotiating with the city for a settlement and on October 20th an agreement between the city council and the defendants was made under which the suit was to be dismissed upon the payment of $180 to apply on the costs. The city council at a regular meeting passed a resolution on October 20th directing the suit to be dismissed on the payment of such sum. On November 9th the defendants paid the sum of $180 into court to apply on the costs. A motion was thereupon entered to dismiss the suit on the ground it had been settled. Proof was made of the passage of the resolution by the city council at a regular meeting and that the money agreed upon had been paid into court by the defendants. The city attorney objecting to the dismissal of the suit, the motion was overruled. It is claimed that the judge refused to certify that an exception was taken to his ruling. A change of venue was taken by the defendants from that judge and another county judge was called to act in the case. The motion to dismiss was renewed and the same proof was introduced as before. The city attorney again resisted the motion and introduced in evidence an ordinance of the city which provides, that the city attorney “shall prosecute or defend as the case may be on behalf of the city all cases in which the city is a party or in which its interests are involved.” “He shall take charge of the prosecution of all actions for the violation of any of the ordinances of the city and shall conduct all proceedings therefor in the courts to which they are brought or to which they may be appealed.” The court overruled the motion to dismiss and the defendants excepted. The defendants then withdrew their appearance in the county court and the appeal was thereupon dismissed with a procedendo to the justice. The defendants prosecute this appeal.

At the time the resolution was passed agreeing that the case should be dismissed on the payment of $180 the costs amounted to $140.45 so that the defendants paid all costs and $39.55 for the benefit of the city. The settlement was a compromise between the city and -the defendants of litigation which was because of the appeal still pending. It was an uncertainty as to what might happen. If the defendants should succeed then the city would not get anything and no costs, witness fees or expenses incurred on the part of the city would be paid. In Agnew v. Brail, 124 Ill. 312, it was held that a city council has the right and power to settle disputed claims against it or in its favor. That case was one where the city council of the city of Macomb, before the time for prosecuting an appeal which the defendant was perfecting had expired, directed that a judgment for $200 recovered for the violation of a city ordinance be settled for $100 and costs. The city of Macomb is incorporated under the general incorporation law of the state as is also the city of Spring Valley. The city attorney in the Brail case as in this case claimed the city council had no right to settle the judgment for a less amount than the amount of the recovery and after the time for appeal had expired undertook to collect the full amount of the judgment. The court said that at the time of the making the agreement it was a settlement of a pending controversy which the city council had the power to settle; that the right of Brail to appeal gave the city council the right of settlement. “A municipal corporation has power to settle disputed claims against it. (Dillon on Mun. Corp. sec. 398.) It may prosecute suits in favor of the corporation, and defend actions brought against it. It may sue and be sued, and the right to settle matters in litigation follows logically from the right •to maintain or defend actions. This doctrine is well stated in Town of Petersburg v. Mappin, 14 Ill. 196, where it is said ‘The power to prosecute suits in behalf of the corporation includes the power to settle the same. So the power to defend suits brought against the corporation, gives them the same power of adjustment. They may compromise doubtful controversies to which the corporation is a party, either as plaintiff or defendant.’ ” This court followed that rule in City of Morris v. Sackett, 149 Ill. App. 152.

We do not regard the case of Flynn v. City of Springfield, 120 Ill. App. 266, as in point for the reason that the city council in that case did not agree with the defendants upon a settlement but without any consideration whatever ordered the prosecution dismissed. In the present case there was a good consideration paid for the compromise and settlement of a pending prosecution. The decisions of the Supreme Court as to what is the law are binding and conclusive upon all inferior courts, officials and citizens. The judgment is reversed.

Reversed.


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    Henry Kroll, Administrator, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 5,167.
    1. Evidence—when, of ordinance, incompetent. A book purporting to contain a municipal' ordinance is not competent if it does not purport “to have been published by authority” of the city council.
    2. Obdinances—when publication essential to validity. An ordinance imposing a fine to he valid is required by the City and Village Act to be published, or in the absence of a newspaper, to be posted in manner as specified by such act.
    3. Damages—when excessive in action for death caused by alleged wrongful act. A judgment for anything much in excess of nominal damages is improper if it appears by the evidence that the deceased was at the time of the accident unable even to support himself.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Jo Daviess county; the Hon. R. S. Fab-band, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.

      Woodward & Lees and W. Spensley, for appellant.
    Hodson & Campbell, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action brought by Henry Kroll, administrator, etc., for negligence alleged to have caused the death of Winfield McQ-aughey, for the benefit of the surviving widow and son of deceased, against the Chicago, Burlington and Quincy Railroad Company, appellant. The' declaration contains nine counts. A demurrer was sustained to the first five counts and issue was joined upon the other four counts. On a trial the jury returned a verdict for plaintiff for $1,500 upon which judgment was rendered and the defendant appeals.

The plaintiff assigns cross errors upon the overruling of the demurrer to the first five counts. None of these counts avers that the action of the defendant was wanton or wilful; each of them avers that the deceased was inside a building known as “East Cabin” when he was injured, but none avers any right or reason for his being in said building which was on the right of way of the railroad. Under such averments the defendant owed no duty to the deceased except to refrain from wilfully or wantonly injuring him. None of these counts therefore states a cause of action against the defendant and there was no error in sustaining the demurrer thereto.

The remaining four counts aver that the deceased was killed by the wanton and wilful negligence of the defendant. The seventh count avers that there was an ordinance in the city of East Dubuque limiting the speed of trains. This count, as set out in the record, does not contain any averment as to the speed at which the train was rnn, neither does it aver that the train was run at a speed violating the ordinance. There is no other count of the four on which the trial was had which avers any violation of any ordinance.

The plaintiff offered in evidence what purported to be an ordinance of the city of East Dubuque, which was admitted over the objections of the defendant. There is no count in the declaration upon which a judgment can be sustained for a violation of the ordinance. The ordinance offered is in a written book. The mayor of the city testified that the book is a book containing the city ordinance, and a former clerk testified that it was in his writing. There was a certificate of the clerk that it was one of the ordinances and beneath the certificate are the words “published by posting, Dec. 7th, 1886.” The book offered in evidence is not printed and does not purport to be published by the authority of the board of trustees. Section 64 of chapter 24 of the City and Village Act requires that all ordinances imposing any fine shall be published in a newspaper of the city or village or if no newspaper is published therein, by posting three copies in three public places in the city or village.

There was no proof that there was then no newspaper published in the city nor was there any testimony as to how many places the ordinances were posted; there was therefore no sufficient proof to make the supposed ordinance competent evidence and it was improperly admitted.

Appellee contends that wilful and wanton negligence of the appellant was proved: first, by a violation of this supposed ordinance in the running of the train at a greater rate of speed than the ordinance permitted within the city; and second, by not commencing to stop the train at a greater distance from “East Cabin” because of some defect in the operation of air brakes on the train of appellant of which the employes of appellant had knowledge. We cannot know upon which of these grounds the jury found that the conduct of defendant was wanton and wilful, and the admission of the supposed ordinance in evidence was reversible error.

The proof shows that the deceased was in a building known as “East Cabin” on the right of way of appellant in the city of East Dnbnqne. It is claimed by appellee that at this place the tracks of three railways converge to a single track over which they pass to the city and that it was the duty of the appellant to stop or have its trains under complete control before it reached “East Cabin,” and not to proceed without a signal from a telegraph operator stationed therein. At the time of the accident the passenger train of appellant came to the place where the railroads converge to one track rapidly and struck some cars of another railway on the single track and forced one of them off of the track and against the side of the building known as “East Cabin,” demohshing the building and killing plaintiff’s intestate who was therein.

The damages alleged are for injury to the loss of the means of support of the widow and child. The evidence shows that the deceased was not living with his wife; that he had no employment and was unable to work because of a stroke of paralysis which he had suffered some four or five years before the accident. He was at and before the time of the accident so badly affected that his right side was paralyzed; he was unable to use his right arm, was unable to earn his living, was almost helpless and his speech was affected. The proof also shows that it was unknown whether the wife of the deceased was living or not. Even if appellee is entitled to recover, still under the evidence as it appears in this record a judgment could not be sustained for $1,500, as it is apparent from the evidence in the record that the deceased was unable to support himself, much less to contribute to the support of any other person. A judgment for little more than nominal damages could be sustained if a cause of action should be proved under the declaration. For the error in admitting the ordinance without the proper preliminary proof the judgment must be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    The Michels Company, Appellee, v. Thomas H. Young et al., Appellants.
    Gen. No. 5,170.
    1. Appeals and errors—when assignments deemed waived. An assignment of error not argued is deemed waived.
    2. Executors and administrators—when personally liable. If executors without special authorization continue a partnership business in which their testator was a partner, they become personally liable for any loss incurred.
    3. Amendments and jeofails—effect of granting leave to amend. Until the amendment is in fact made the declaration will remain the same as if no leave to amend had been given.
    4. Contracts—against whom recovery must be had in actions upon. In all actions on contracts in a court of record if a recovery be had it must be against all the defendants whose joint liability is charged in the declaration unless a defense is interposed by some defendant personal to himself, such as coverture, infancy, bankruptcy, etc., or the cause of action is governed by some statute, such as the statute concerning negotiable instruments.
    Assumpsit. Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    S. J. Drew, for appellants.
    Cowing & King, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action of assumpsit brought by The Michels Company, a corporation, to recover the sum of $615.84, alleged to be due the plaintiff for goods and wares alleged to have been sold to Thomas H. Young, George M. Young and Martha Young, doing business as T. A. Young, and to the Young Company, a corporation. The suit was begun by filing an affidavit for an attachment against Thomas H. Young, George M. Young and Martha Young, co-partners doing business as T. A. Young, and the Young Company, a corporation. The defendants filed the general issue and a plea denying the cause alleged for the attachment.

On the trial at the close of the evidence, plaintiff took a non-suit as to the Young Company and the court instructed the jury to find the issues on the attachment in favor of defendants. The jury returned a verdict as to the claim sued on in favor of plaintiff for $523.46. Motions for a new trial and in arrest of judgment were overruled and judgment was rendered upon the verdict in favor of the plaintiff and against the defendants, T. H. Young, George M. Young and Martha Young, doing business as T. A. Young. The defendants against whom judgment was rendered prosecute this appeal.

Appellee has assigned cross errors on the instruction of the court directing a finding for appellants on the attachment but appellee makes no reference to this assignment in its brief or argument and has therefore waived the error if any there was in that regard.

The evidence shows that T. A. Young carried on a general grocery and meat business in two different locations in Joliet until January 4, 1905, when he died leaving a last will. Martha Young is his widow, and John J. Young, George M. Young, Thomas H. Young and Margaret Young are his children surviving him. John J. and Thomas H. Young were named as executors of the will which was proved in the Probate Court and they qualified as such executors. The Michels Company was doing a wholesale grocery business in the city of Joliet at the time of the death of T. A. Young. He was indebted to appellee in the sum of $429.30 for merchandise sold to him during his lifetime. The executors after the death of T. A. Young conducted the business until October 6, 1905, as though T. A. Young were still living and running the business. On October 6, 1905, there was a balance due on the purchases made by the executors of $117.75 making a total due to appellee from T. A. Young and the account run by the executors of $556.95. Appellee never presented any claim in the Probate Court against the estate of T. A. Young.

The second clause of the will of T. A. Young bequeathed to John J. Young, Thomas H. Young and George M. Young the store business at Nos. 913-915-917 Collins street; also the store business located at Boss and Center streets in Joliet, including all the accounts, goods, fixtures, wagons and horses now used in said business. On October 6th the executors presented to the Probate Court a petition asking leave to turn over to certain legatees mentioned in the will of T. A. Young, a miscellaneous lot of goods and chattels owned by T. A. Young in his lifetime. On the hearing upon this petition the court found that John J. Young had sold and assigned all his interest in the above mentioned property to Martha Young, and ordered that the executors deliver to T. H. Young, George M. Young and Martha Young as assignee of John J. Young, all the said goods, chattels and fixtures, and that the executors retain the accounts until the further order of the court. There is nothing in the record showing when John J. Young assigned his interest to Martha Young, but on October 5th, the day before the making of the order by the probate court, Martha Young assigned her interest in these goods, etc., to Eleanor Young, the wife of John J. Young, for $100 cash and certain notes.

The evidence shows that upon the assignment of the interest of John J. Young to Martha Young and the assignment of Martha Young’s interest to Eleanor Young, that T. H. Young, George M. Young and Eleanor Young formed a partnership and carried on the business at the same place from October 6, 1905, up to April 15, 1906, and purchased goods from appellee on credit until December, 1905, but after that time purchased from appellee only for cash. On April 15, 1906, the Young Company, a corporation, was formed in which the stock was. held by T. H., George ,M., Eleanor and Mary Young. The Young Company after its organization conducted the business and bought of appellee for cash only. Appellee during all this time charged to T. A. Young all the goods sold to the executors, to the partnership and to the company and did not charge any goods either to the Young estate, to the partnership or the appellants, and rendered statements to the parties doing business at the place of T. A. Young from time to time showing the entire indebtedness and the payments applied thereon. These statements were received without any objection on the part of the executors, the partners or the Young Company. Subsequently the Young Company made an assignment for the benefit of its creditors. The amount remaining unpaid on the balance of all the accounts, viz. T. A. Young, the executors, the partners and the Young Company, was $614.84. The assignment for the benefit of the creditors paid a dividend of 15% to the creditors which was applied upon the general balance due the appellee. There was also a small amount of cash and goods recovered by appellee from the Young Company and credited on this general account.

After the Young corporation was formed appellee knew of that fact and the record seems to show that the accounts were continued as before although both parties claim the sales were all for cash after December, 1905, but the record is not clear whether the accounts of the cash sales and payments were continued with the credit sales. The evidence appears to indicate that the cash sales were carried with the others and the cash paid applied on the general balance. We express no opinion upon whether such method of bookkeeping and rendering accounts would cancel the old indebtedness existing from T. A. Young and the account run by the executors and leave the remaining indebtedness against the partners or not, as this case must be reversed upon other questions, and upon another trial there may be further evidence as to whether there was an assumption of the old indebtedness by the partners, so that that question is an open one.

The proof clearly shows that Martha Young never was a member of the partnership and that she took-no part in running this business. The only interest she had was as the widow of T. A. Young and that the title of John J. Young’s part of the estate passed through her to Eleanor Young. The appellee, whose place of business was in Joliet, does not appear to have made any inquiry at the Young place of business, to ascertain who were conducting the business, but appears to have relied upon commercial statements of E. G. Dun and Company. Appellee introduced one of these statements in evidence, and it does not show who was conducting the business. At some time, but when does not appear, appellee learned of the order of the Probate Court authorizing the executors to turn over the tangible property to T. PI., George M. and Martha Young, and also learned that the accounts were not turned over, but made no inquiries to ascertain thereafter who was conducting the business. Appellee claims it had the right to assume that when the order was made authorizing the goods to be turned over to T. H. Young, George M. Young and Martha Young that thereafter these parties were conducting the business and that they had a right to hold Martha for the goods thereafter bought. The proof clearly shows that Martha never had anything to do with the running of the business and had no connection with it whatever. There is no rule of law which will permit the assumption of appellee to prevail against the clear proof that she had no interest and did not profess to have any or permit herself to be held out as a partner.

Martha Young had turned over to Eleanor Young her interest in the estate before the Probate Court made the order of October 6th. The executors when they continued the business of T. A. Young made themselves personally liable for any losses incurred. Colton v. Field, Leiter & Co., 131 Ill. 398. Martha Young was not in business with them and when she made the assignment to Eleanor Young she was not assigning an interest in the partnership bnt only in that portion of the estate. The court by the making of the order of October 6th, could not compel Martha Young to become liable for the business debts of the executors, and it does not profess to do so. The evidence showing that there is no liability on the part of Martha Young, this judgment must be reversed.

When the appellee took a non-suit against the Young Company it also took leave to amend the declaration in that regard, but no amendment was made. The rule is that a party, after obtaining leave to amend a declaration, is in no wise obliged to exercise the privilege given and make the amendment. Until the amendment is in fact made, the declaration will remain the same as if no leave to amend had been given. Wisconsin Cen. R. R. Co. v. Wieczorek, 151 Ill. 579; Ogden v. Town of Lake View, 121 Ill. 422. It is also a rule of practice in suits begun in a court of record, that in all actions on contract if a recovery be had it must be against all the defendants whose joint liability is charged in the declaration, unless a defense is interposed by some defendant personal to himself such as coverture, infancy, bankruptcy, etc., or the cause of action is governed by some statute such as the statute concerning negotiable instruments. Felsenthal v. Durand, 86 Ill. 230; Byers v. 1st Nat. Bank of Vincennes, 85 Ill. 423; Fish v. Farwell, 160 Ill. 236; Stein v. Stein, 44 Ill. App. 107; Beidler v. Richardson, 107 Ill. App. 536.

This suit having been begun in a court of record and the declaration being against the Young Company, Martha Young and others and there being a non-suit as to the Young Company and the proof showing there was no cause of action against Martha Young, the judgment should be in favor of all the defendants unless the declaration is amended to comply with the rules of practice in courts of record.

The judgment is reversed and the cause remanded.

Reversed and remanded.