author: Mr. Justice McSurely

text:
    Simon T. Sutton, Administrator, Plaintiff in Error, v. Arrow Transfer Company, Defendant in Error.
    Gen. No. 18,318.
    1. Negligence, § 96—degree of care required of eJUld. A child is not required to exercise the same degree of care as an adult, but only such care as a child of its age, intelligence, experience and capacity would ordinarily exercise.
    2. Negligence, § 230

      —when giving of instruction as to contributory negligence of child not misleading. In an action for the death of a child, the giving of instructions upon the contributory negligence of the child, omitting any reference to her age, intelligence, experience and capacity, held not reversible error where other instructions given correctly stated the rule as to the degree of care required of a child.
    3. Negligence, § 228

      -—when instruction not limiting contributory negligence to just before and at time of accident not misleading., The giving of an instruction as to contributory negligence of a child which did not refer to the time of the negligence as “just before and at the time of the accident,” held not misleading where the only conduct of the child which was in question was that immediately before and at the time of the accident.
    Error to the Superior Court of Cook county; the Hon. Arthub H. CHETLAirr, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    John C. King and James D. Power, for plaintiff in error.
    Miller, Gorham & Wales and Willis G. Shookey, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

This was an action to recover for the death of plaintiff’s intestate, a child nine years of age, who was run over by a wagon belonging to the defendant. Upon the trial the jury found the defendant not guilty.

Plaintiff claims that the child was crossing the street some distance ahead of the horses and wagon; that she was knocked down and trampled upon by the horses, the wagon passing over her. The defendant claims that the team was proceeding at a walk; that the child, who was on the street, with her back to the wagon, turned suddenly and ran directly into the middle of the wagon.

We shall not undertake to state the more or less conflicting stories of the witnesses testifying to the occurrence. It is sufficient to say that we are of the opinion that the greater weight of the evidence tended to establish defendant’s theory of the accident, and that the verdict was fully justified.

Complaint is made of certain instructions given at the request of the defendant, touching contributory negligence of plaintiff’s intestate, which omitted any reference to her age, intelligence, experience and capacity. It is said that while these instructions might correetly state the law were the plaintiff’s intestate an adult, yet it was reversible error to give them in this case, where plaintiff’s intestate was an infant of tender years. A child is not required to exercise the same degree of care as an adult, but only such care as a child of its age, intelligence, experience and capacity would ordinarily exercise. Illinois Iron & Metal Co. v. Weber, 196 Ill. 526; Lahe Erie & W. R. Co. v. Klinkrath, 227 Ill. 439. In the present case, by the first instruction this rule as to the degree of care required of a child was correctly given to the jury. There was nothing in any other instruction which negatived this rule. The fact that in other instructions touching due care for her own safety there was not repeated the full statement of the degree of care required of a child, could not reasonably mislead the jury into thinking that this degree of care was any different from that stated in the first instruction.

We might further say that the instructions complained of correctly stated the law, and would be objectionable only by reason of the absence of any defining or explanatory instruction which might be necessary in a close case on the facts to prevent possible misapprehension. This explanatory instruction is present.

It is argued that the jury were improperly instructed that any negligence of the child, though remotely contributing to the accident, would bar a recovery. In one of the instructions of which complaint is made the point of negligence is particularly placed at “just before and at the time of the accident in question”; however, the only conduct of the child which was in question was that immediately before and at the time of the accident. The issue of fact was whether she was walking in front of the team, as plaintiff claims, or walked into the side of the wagon, as defendant claims. We think the jury could not have considered the instructions to refer to any point of time other than that involved in her conduct immediately relating to this issue.

Under the evidence no other verdict could stand, and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Arthur S. Welch, Defendant in Error, v. Garrett Biblical Institute, Plaintiff in Error.
    Gen. No. 19,043.
    1. Brokers, § 62

      —right to commissions when acting as agent for both parties. An agent cannot recover for services rendered in securing an exchange of real estate where he acted for both seller and purchaser, and failed to show that defendant knew he was acting as the agent of the opposite party and had given his consent that he should so act.
    2. Brokers, § 62

      —when agent acting as agent for both parties not entitled to commissions. Where an agent in procuring an exchange of real estate acted as agent for both parties and received compensation from one, held in an action brought against the other for commissions that he was not entitled to recover, the evidence being insufficient to show that the defendant knew that he was employed by and received a commission from the other party, and consented thereto.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in this court at the March term, 1913.
    Reversed with finding of fact.
    Opinion filed May 4, 1914.
    Rehearing denied May 18, 1914.
    N. M. Jones, for plaintiff in error.
    E. F. Masterson, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

This is a case in which the court found for the plaintiff, Welch, in a suit for compensation for services rendered by plaintiff in procuring a purchaser for defendant's property pursuant, as plaintiff claims, to a special contract made between him and Henry H. Gage, the manager of defendant’s real estate.

It is admitted that plaintiff brought to defendant a party named Erwin, and that defendant and Erwin exchanged their properties. Plaintiff received from Erwin $1,200, which is two and one-half per cent, of $48,000, the value placed on Erwin’s property in the exchange, and this suit is for two and one-half per cent, on $25,000, the value placed on defendant’s property in the exchange. The difference of $23,000 is represented by a mortgage on Erwin’s property which defendant assumed. Plaintiff testified that the $1,200 paid to him by Erwin was a present which Erwin paid to hurry the deal to a consummation. The name is not important, for it is manifest that this money was given to plaintiff as compensation for his services.

The rule of law is that “an agent could not recover for services rendered in securing an exchange of real estate where he acted as the agent for both seller and purchaser, and failed to show that defendant knew he was acting as the agent of the opposite party and had given his consent that he should so act.” Bunn v. Keach, 214 Ill. 259 (265).

Plaintiff claims that the defendant, through its agent, Gage, knew of this payment by Erwin to plaintiff and consented thereto. As a bald statement of fact this is true, for Gage himself testifies that he knew that Erwin was paying plaintiff, but his testimony on this point should be considered in connection with his entire testimony. His story, in brief, is that he never promised to pay plaintiff anything for his services; that plaintiff represented Erwin; and that plaintiff told trim, Gage, that he would get his commission from Erwin, and that in dealing with plaintiff Gage understood that plaintiff was acting on behalf of Erwin, while he, Gage, represented the defendant. This is not the kind of knowledge and consent by a defendant which, when shown, avoids the operation of the rule above quoted. The knowledge and consent contemplated in that rule must be exercised with reference to some conduct contrary to defendant’s interest and to which he would have the right to object. Upon Cage’s understanding that plaintiff represented Erwin in the deal, whatever Erwin and plaintiff might agree upon as compensation for plaintiff’s services was of no concern to Cage, and his knowledge or consent thereto was not material.

Something is suggested concerning the knowledge by Judge Horton of the payment by Erwin to plaintiff, but however this may be, such knowledge cannot bind the defendant, as Judge Horton ceased to have any official connection with the defendant some time before the transaction in question.

We find no evidence that the witness Crandon, defendant’s treasurer, lmew anything about the matter until after the exchange had been made.

Turning to the testimony of the plaintiff, concerning' knowledge of the defendant, and consent to plaintiff’s receiving compensation from Erwin, we find only this statement: “I told Mr. Cage he (Erwin) was willing to pay something on this thing if they could get it through, and Mr. Cage acknowledged it and said, all right we will see what we can do.” Even should we accept plaintiff’s theory that he was employed by defendant, this bit of rather indefinite testimony is not sufficient to prove that Cage knew plaintiff was also employed by and receiving a commission from Erwin, and consented thereto. Before plaintiff can recover he must establish that he was employed by the defendant to represent it, and that defendant consented that he should also represent the opposite side. In any view of the evidence plaintiff has failed to prove the existence of such facts. Under the law he cannot recover, and the judgment is reversed without remanding.

Reversed with finding of fact.

Finding of Fact: The court finds that plaintiff did not prove that he was employed by the defendant and at the same time was employed by Erwin with the knowledge and consent of the defendant.


text:
    Chicago Iron & Metal Company, Plaintiff in Error, v. Jacob Berkson and Myer Berkson, trading as Berkson Bros., Defendants in Error.
    Gen. No. 19,098.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Gooditow, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    Statement of the Case.
    Replevin by Chicago Iron & Metal Company, a corporation, against Jacob Berkson and Myer Berkson, trading as Berkson Bros., to recover possession of certain scrap iron. To reverse a judgment in favor of defendant, plaintiff brings error.
    Bernard Margolis, for plaintiff in error; J. S. McClure, of counsel.
    Samuel J. Andalman, for defendants in error; Jacob Cohen, of counsel.
    Abstract of the Decision.
    Sales, § 361

      —when vendee cannot maintain replevin for goods," In replevin for scrap iron claimed to have been purchased of defendant, where plaintiff paid a certain sum on the contract and proceeded to remové the iron from defendant’s yards until he had removed a quantity which at the agreed price would have amounted to the sum paid, when he was stopped by the defendant from re-, moving any more iron, held that a verdict and judgment for defendant was proper, it appearing that the sale was a "spot cash” sale and that no goods were to be removed until paid for.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    C. A. Bergh v. Charles P. Crosby. Swan Nelson (Intervenor), Defendant in Error, v. Orville D. Eastman (Garnishee), Plaintiff in Error.
    Gen. No. 19,160.
    1. Judgment, § 642

      —when Municipal Court has jurisdiction to strike from files an assignment purporting to satisfy a judgment. The Municipal Court may upon motion strike from the files an, assignment and satisfaction piece purporting to satisfy a judgment in that court, where the facts are simple and easy to ascertain.
    2. Garnishment, § 105

      —when judgment against garnishee may he entered in the name of nominal plaintiff. In a garnishment! proceeding commenced by attachment where the attachment plaintiff pending an appeal by him assigned his claim to a third party, and the garnishee was notified of the assignment, held that the assignee was not a stranger to the matter and that a judgment entered against the garnishee in the name of the attachment plaintiff had the same force and effect as if it stood of record in his name.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    George H. Masoh, for plaintiff in error Orville D. Eastman.
    Eistar C. Howard, for defendant in error Swan Nelson.

      See Illinois Notes Digest, Vols, XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

We are asked to reverse an order entered in the Municipal Court upon motion of Swan Nelson, defendant in error, to strike from the files a certain assignment and satisfaction piece purporting to satisfy a certain judgment in that court.

On January 26, 1909, C. A. Bergh commenced an attachment suit in the Municipal Court against Charles P. Crosby. The plaintiff in error, Orville D. Eastman, was summoned as garnishee. After hearing, judgment was entered against Bergh for costs. He brought the case to the Appellate Court by writ of error, and while it was so pending he, by written assignment on September 21,1909, transferred his claim to Swan Nelson, and Eastman was notified of this assignment. Nelson prosecuted the suit with success in the Appellate Court (162 Ill. App. 536), and upon the remanding order being filed the Municipal Court entered judgment against Eastman as garnishee for $204.40. Nelson did not have the name of the plaintiff changed and the judgment ran in favor of C. A. Bergh, the nominal plaintiff, Nelson being the real party in interest.

Eastman also bought from the heirs of Emily C. Harrington, deceased, the real estate owned by her at the time of her death, subject to claims allowed against her estate, among which was a claim by C. A. Bergh, which had also been assigned to Nelson.

In the meantime, Bergh had filed his petition in bankruptcy, and was adjudicated a bankrupt on August 26, 1910, Frank M. McKey being duly appointed trustee. Thereafter McKey filed his account in the United States District Court and was subsequently discharged as trustee. In the schedule filed in the United States Court Bergh did not schedule either his claim against Eastman or his claim against the estate of Emily Harrington, deceased, these claims having been already assigned to Nelson.

Afterwards, E. B. G-oldsmith, the agent and attorney of Eastman, and who had notice of the aforesaid assignments to Swan Nelson, negotiated with McKey, the trustee in bankruptcy, to vacate the order of discharge of McKey, on the ground of newly discovered assets. Said order of discharge was vacated, and an order entered authorizing McKey to sell the claims against Eastman and also against the Harrington estate, which latter claim amounted to $120 and was a lien upon the real estate which had been purchased by Eastman. At the sale of these claims Goldsmith, acting as agent for Eastman, bid for both of said claims, aggregating about $365, the sum of $145, such offer being on condition that should Bergh appear to have made a bona fide assignment of either judgment or claim prior to his adjudication as a bankrupt, then the money paid should- be returned. Neither Nelson nor his attorney, nor the attorney for the administrator of the estate of Harrington, nor the administrator, was notified of this sale, and had no knowledge of it until some time after it was made.

These facts show clearly that, in justice, the court was right in entering the order which was entered. So far as Eastman and his attorney were concerned, the judgment against Eastman had all the force and effect as if it stood of record in the name of Nelson. No subsequent dealings of Eastman with Bergh or his trustee could affect the rights of Nelson. We see no reason why the court did not have jurisdiction for the purpose of entering the order. The order did not affect the subject-matter of the case nor change the judgment; it simply struck from the files something which had no right to be there. Nelson cannot be called a stranger to the matter, for both Eastman and his attorney knew that he was the real owner of the judgment. While Nelson might under the present statute have sued in his own name, yet he could, if he so wished, proceed to judgment in his assignor’s name.

While in certain eases, where there are many conflicting claims and questions to be determined, it may be desirable to resort to a court of equity, as in the case of Barrett v. Lingle, 33 Ill. App. 650, in the present case the facts were so simple and easy to ascertain that the court properly undertook to act. The following cases hold that such a matter may be brought before the court by motion: Day v. Graham, 6 Ill. (1 Gilman), 435; Coffey v. Coffey, 16 Ill. 141; Jenkins v. Merriweather, 109 Ill. 647; International Packing Co. v. Cichowicz, 114 Ill. App. 121; Parker v. Crilly, 113 Ill. App. 309; People v. Parker, 231 Ill. 478.

The order is affirmed.

'Affirmed.


text:
    Frank A. Krasa, Defendant in Error, v. Nett W. Robbins, Plaintiff in Error.
    Gen. No. 19,205.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    Statement of the Case.
    Action by Frank A. Krasa against Nett W. Bobbins to recover commissions claimed to be earned by plaintiff in procuring a purchaser of defendant’s property. Upon a trial a jury returned a verdict for the plaintiff. To reverse a judgment entered on the verdict, defendant brings error.
    Gustav E. Beerly, for plaintiff in error; Lewis Binakee, of counsel.
    George H. Mason, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarter!', same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court,

Abstract of the Decision.

1. Brokers, § 48 —when entitled to commissions for procuring purchaser of real estate. In an action for commissions for procuring a purchaser for defendant’s real estate, a verdict for plaintiff held sustained by the evidence, it appearing that plaintiff procured a purchaser at the price he was authorized to sell and that defendant refused to sell at that price or at an increased price and then told plaintiff the property was not for sale, but subsequently sold the property to the purchaser at a greater price.

2. Evidence, § 476 —when weight of evidence does not depend on number of witnesses. The testimony of two or more witnesses does not necessarily have greater weight than the testimony of a single opposing witness.


text:
    W. L. Elder, Appellee, v. The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    Gen No. 19,285.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in this court at the March term, 1913.
    Reversed with finding of fact.
    Opinion filed May 4, 1914.
    Statement of the Case.
    Action by W. L. Elder against The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company to recover damages to an automobile owned by plaintiff and struck by an engine belonging to defendant at a street crossing. From a judgment in favor of plaintiff for four hundred and sixty-five dollars, defendant appeals.
    Loesch, Scofield & Loesch, for apppellant.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Railroads, § 738 —when judgment for damages to automobile cannot be sustained. In an action against a railroad company for damages to plaintiff’s automobile by being struck by an engine at a street crossing, the evidence showed that servants of plaintiff attempted to drive the automobile over the crossing on a dark night without looking to see if a train was approaching and that there was nothing to prevent them from seeing the approaching locomotive with its headlight burning had they looked. Held that a judgment for plaintiff could not be sustained for the reason that plaintiff, through his agents, was guilty of contributory negligence.

2. Railroads, § 668 —when driver of automobile approaching railroad crossing guilty of contributory negligence. A person driving an automobile on a dark night upon a railroad track, where it is known that trains are frequently passing, without the slightest concern whether or not a train is approaching is guilty of contributory negligence barring a recovery.


text:
    In re Estate of Catherine Welch, deceased. On Appeal of John H. O’Brien, Appellant, v. Margaret Welch, Appellee.
    Gen. No. 19,315.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 4, 1914.
    Statement of the Case.
    Proceeding by Margaret Welch, administratrix of the estate of Catherine Welch, deceased, against John H. 0 ’Brien by citation in the Probate Court under section 81 of the act relating to “Administration of Estates,” J. & A. ¶ 130. The Probate Court entered an order directing defendant to pay a certain sum found in his possession to the administratrix. On defendant’s appeal to the Circuit Court a like order was entered. From the order of the Circuit Court, defendant appeals.
    Francis A. McDonnell, for appellant.
    George E. Brannan, for appellee.
    Abstract of the Decision.
    1. Executors and administrators, § 95

      —when objections to affidavit waived. Objection to the sufficiency of an affidavit filed by an administratrix in pursuance of section 81 of the statute relating to “Administration of Estates,” J. & A. ¶ 130, is waived by the party appearing and going to trial.
    2. Executors and administrators, § 94

      —necessary parties in proceeding by citation. It is not necessary to make the beneficiaries of an estate parties to a proceeding by citation under section 81 of the statute relating to the “Administration of Estates,” J. & A. 1f 130.
    3. Gifts, § 29

      —when evidence insufficient to establish gift inter vivos in trust. In a proceeding by citation under section 81 of the statute relating to “Administration of Estates,” where the person cited claimed that certain property was given him by the intestate to hold in trust for the benefit of certain persons, held that the evidence was insufficient to establish a gift inter vivos in trust, it appearing that defendant was the intestate’s agent with -reference to the sale of certain real estate and collected the money therefrom which he retained, of which the fund in question was a part, and that the money was considered as belonging to the intestate to he disposed of in whatever manner she saw fit during her lifetime, without any intention of parting with its control

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Michael Czelusnik and Mary Czelusnik, Appellees, v. Stanislaus Wantroba and Mary Wantroba, Appellants.
    Gen. No. 19,821.
    1. Vendor and purchaser, § 260

      —when right to vendors lien is waived. Where a vendor accepts a promissory note of a third person as part of the purchase money, the right to a vendor’s lien is waived.
    2. Vendor and purchaser, § 273

      —when evidence insitfficient to show right to vendor’s lien. On bill filed for a vendor’s lien upon certain real estate sold by complainants to defendants, complainants alleged that a certain paper was handed them by the defendants with the understanding that it meant that the unpaid balance of the purchase money would be paid in cash in a few days but that complainants afterward ascertained that it was a promissory note of a third party who was insolvent. Held that the evidence was insufficient to show, that complainants were entitled to a vendor’s lien, that by accepting the note for the unpaid balance they waived the right to such lien, and that the claim that they understood the paper to be an assurance that they would receive the balance of the purchase money in cash in a few days was inconsistent with their conduct after the transfer was made.
    Appeal from the Superior Court of Cook Qounty; the Hon. Theodore Bbentano, Judge, presiding.
    Heard in this court at the March term, 1913.
    Reversed and remanded with directions.
    Opinion filed May 4, 1914.
    Rehearing denied May 18, 1914.
    Jones, Keener & Posvic, for appellants.
    Charles A. Churan, for appellees.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

This is a proceeding in chancery to establish a vend- or’s lien upon certain real estate which appellees had sold to appellants. Bill, answer and replication were filed and hearing had before the chancellor and a decree entered establishing a vendor’s lien, from which decree this appeal is taken.. . .

The bill alleges that on July 9, 1910, appellees were the owners of certain real estate which was incumbered for $2,000; that on that day they conveyed the real estate to appellants for $3,200, appellants assuming the $2,000 incumbrance and were to pay the balance of $1,200 in cash; that they paid $500, and at the same time delivered to appellees a paper in the English language, “of which they were wholly ignorant”; that this paper was handed to them by appellant Stanis-Ians Wantroba, who explained that it meant that appellees would receive the balance $700 in a few days; that appellees afterwards ascertained that the paper was a promissory note signed by one Ida Bahn and “was not a paper in the nature of an assurance by Stanislaus Wantroba and Mary Wantroba that your orators would receive the sum of $700 within a few days.” It was further alleged that appellees were at the time of the filing of the bill, which was in December, 1911, occupying a portion of the premises conveyed as tenants of appellants; that they ceased to pay rent and that appellant Stanislaus Wantroba commenced an action of forcible detainer for possession. It is further alleged that appellees have never been paid anything on said note of Ida Bahn and that she is insolvent; that they received no security for the payment of the balance of $700, and that by reason thereof appellees are entitled to a vendor’s lien.

In their answer to the bill appellants admit the purchase price and the payment of $500 in cash and the assumption by them of the $2,000 incumbrance and the giving of the note for $700 made by Ida Bahn, but they deny that they represented the paper to mean that appellees were to receive the balance of $700 in a few days, and deny that appellees accepted the paper with the assurance or believing that they would receive the said $700 within a few days or from appellants at any time. The answer further sets forth that before the sale of the property Ida Bahn was indebted to appellants in the sum of $700 for money loaned her; that at and before the delivery of the warranty deed from appellees to appellants, appellees stated that they preferred to take part of the said $1,200 in cash and for the balance would accept the promissory note of Ida Bahn payable to their order and payable one year after date, with interest; that thereupon appellants surrendered their note which they held against Ida Bahn, and the same was cancelled; that appellees- received and accepted from Ida Bahn her note for $700 payable as aforesaid, and that it was received and held by appellees as and for the balance of the purchase money; that thereafter they received and accepted from Ida Rahn $25 on account of said note, and have held the note up to date; that afterwards appellees paid rent to appellants for seven months’ possession of part of the premises conveyed, and never made any claim upon appellants for the balance of the purchase money until appellants commenced a suit for possession on the ground of nonpayment of rent, in which suit appellants obtained a judgment for possession.

If it is true that appellees accepted Ida Ralm’s note for $700 as part of the purchase money, then they are not entitled to a vendor’s lien and the bill should be dismissed for want of equity. It was so held in the early case of Conover v. Warren, 6 Ill. (1 Gilm.) 498, where the Court said: “The lien is also discharged by the taking of any independent security, such as a deposit of stock, a pledge of goods, a mortgage on real or personal estate, or the responsibility of a third person. ’ ’

In Blomstrom v. Dux, 175 Ill. 435, the Court said:

“A vendor’s lien is not recognized by our statute. It is a creature of the courts of equity. It does not grow out of any agreement, but is created in equity without an express' agreement of the parties. It is an implied agreement, existing between the vendor and vendee, that the former shall hold a lien on the land for the payment of purchase money. If the vendor does not rely on the lien, such implied agreement is done away with, and a court of equity will hold that the lien has been waived. A vendor’s lien is waived, if the vendor takes other security for the purchase money. It has been held, that any act, manifestly declaring an intention not to rely on the lien, may defeat it, or prevent it from attaching. ’ ’

And in Cowl v. Varnum, 37 Ill. 181, the Court said of a vendor’s lien, “this lien arises from principles of equity alone, and it is created by courts of equity, independent of any expressed contract, upon the mere supposition of the intention of the parties, and whenever from any circumstance, the court can infer that the vendor did not rely upon the lien for his security, the courts have treated it as waived.” In Andrus v. Coleman, 82 Ill. 27, it is held that the taking of the note of the husband of the vendee to secure the payment of the purchase money was a waiver of a vendor’s lien. To the same effect are Boynton v. Champlin, 42 Ill. 65; Kirkham v. Boston, 67 Ill. 603; Ilett v. Collins, 103 Ill. 74; and in 39 Cyc. 1836, the statement is made: “Where the vendor takes the notes or other obligations of third persons for the purchase money he waives his vendor’s lien”; and this is supported by a large number of authorities.

From examination of the testimony we have concluded that appellants clearly established the allegations of their answer concerning the giving of the Bahn note to appellees. Appellees’ claim that they could not read English may be true, but it does not follow that they did not thoroughly understand the transaction. Their own conduct certainly is inconsistent with their claim that they understood this paper to be an assurance that they would receive the balance of the purchase money in cash in a few days. They took the note' home and put it away in a trunk. About three months afterwards Ida Bahn paid appellee Mary Czelusnik $25 on account of the note, Czelusnik not being in the house. Subsequently Mrs. Bahn came to the house and offered Mary Czelusnik $50 in the presence of several witnesses, but Mary Czelusnik told her she would not take $50 but wanted all the money. It further appeared that at the time of the transfer of the property Ida Bahn had been in the real estate business in the neighborhood where the parties resided for about thirteen years, and that her financial reputation was good. It also appears from the evidence that about two months after the note became due involuntary proceedings in bankruptcy were filed against Ida Bahn and she was adjudged a bankrupt, and that she at that time had fifty or sixty pieces of real estate in Illinois and in New York. It also appears that shortly thereafter appellee Czelusnik came to her and begged her to pay something on the note and said he would take $5. This incident occurred about fifteen months after the conveyance of the property and the acceptance of the note. Ida Eahn did not become a bankrupt until fourteen months after the sale was closed.

Appellees having failed to establish by evidence their right to a vendor’s lien, the decree in their favor was erroneously entered. It will therefore be reversed and the cause remanded with directions to dismiss the bill for want of equity.

Reversed and remanded with directions.


author: Mr. Justice Carnes

text:
    State Bank of Rock Island, Appellee, v. Cecil E. Bryan et al., Appellants.
    Gen. No. 5,722.
    1. Subrogation, § 1

      —when creditor not entitled to surrender of collateral. A creditor cannot be compelled to surrender collateral on the payment of a part only of the debt it secures.
    2. Principal and surety, § 83

      —right of surety to subrogation. Sureties paying part the debt only cannot enforce the right of subrogation in the same way and to the same extent as in cases where the entire debt is paid.
    3. Guaranty, § 31

      —when defense of loss accruing from, care of collateral cannot be availed of. In an action against guarantors on a promissory note where collateral had been pledged to secure such indebtedness and other indebtedness represented by other notes with different sureties, a defense was set up charging loss and misapplication by the plaintiff of several items of collateral and requiring the court to ascertain the rights of the defendants in the collateral not only as between themselves and the plaintiff, but also between themselves and the sureties on the other notes, who were not parties to the action, and to give to the defendants the benefit of whatever might be found to be their share of the loss accruing to all the beneficiaries. Held that the defense could not be allowed for the reason that all the parties interested in the application of the collateral were not before the court.

      Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest and Hon. Frank D. Ramsay, Judges, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 17, 1913.
    Rehearing denied April 21, 1914.
    Searle & Marshall and Harry E. Brown, for appellants.
    J. T. & S. R. Kenworthy, for appellee.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Appellee, State Bank of Bock Island, on December 17, 1906, loaned the Concrete Construction Company $7,000 on its note of that date due March 17, 1907, indorsed with a guaranty of payment signed by the four appellants, Cecil E. Bryan, its president, Harry E. Brown, A. W. Weimer and William Weimer, and also by one J. S. Wilbert, its secretary. Afterwards, February 9,1907, the company being indebted to the Bank on this and other notes, on some of which there were other indorsers not parties to this suit, desired a further accommodation of the Bank and obtained it by depositing collateral security, not only for the new loan but also for all indebtedness of the company and of said Bryan and Wilbert to the Bank (Bryan and Wilbert were indorsers of much of the other paper.)

The collateral so deposited consisted of several items, some of which were owned by the Concrete Construction Company, the principal debtor, and some by Bryan and Wilbert each individually, and after the additional loan was made other items of collateral were deposited with the Bank by the principal debtor, or by Bryan and Wilbert, to secure the same entire indebtedness ; and still another item belonging to the principal debtor, known as the Major note, was left with the Bank, but whether as collateral for the same indebtedness is in dispute.

It follows that appellee, the Bank, held all this collateral except the Major note, charged with a duty to appellants as guarantors of payment of the note in question, to use ordinary care in its control and management so that should appellants be compelled to answer on their contract of guaranty, they might, with the other sureties, be subrogated to the rights of the Bank in such collateral; and as to the Major note, the Bank was under the same duty to appellants if it should be established on a trial that it was in fact deposited as a security for the same indebtedness. But it was not to appellants alone that the Bank owed this duty, it was also bound to the sureties or guarantors on the other notes secured by the same collateral. It was in a sense a trustee of said collateral, owing a duty to every surety on a note that the collateral secured. Each surety may be said to be a beneficiary of the trust, and loss or misapplication of the collateral by the creditor might result in injury to each and every such surety. It might develop on an investigation that appellants, sureties on the note in question, were not harmed if the collateral was lost, because it might appear that had it been preserved and collected the proceeds should have been applied to the payment of another of the notes it secured, or it might develop that appellants would have been entitled to the whole proceeds had the collateral been preserved and collected by the Bank; all depending upon the law of application of payment applied to the facts as they might be determined on a hearing with all parties interested before the court. In short, appellee, Bank, owed appellants, sureties, and other persons not parties to this suit, a duty which unperformed would result in loss and damage to appellants and such other persons, in what proportion could only be ascertained by an investigation of all the facts. Had appellants paid the note and the collateral had been pledged to secure that note alone, they would have been subrogated to the rights of the creditor in the collateral; but that was not the case. A creditor cannot be compelled to surrender collateral on the payment of a part only of the debt it secures, and it is quite clear that sureties paying a part of the debt only cannot enforce the right of subrogation in the same way and to the same extent as in cases where the entire debt is paid.

The Bank, on December 27,1907, brought this action of assumpsit against said five guarantors of payment. Wilbert did not defend. Appellants filed pleas (in a part of which Bryan did not join) charging loss and misapplication by appellee Bank of several items of said collateral, averring as to some of said items that they were the property of the principal debtor and therefore defendants were discharged to the extent in value of the collateral so lost, and as to others of said items that they were the property of Wilbert and therefore the other defendants were discharged to the extent in value that Wilbert would have been bound to contribute (one-fifth) and as to others that they were the property of Bryan and therefore the other defendants were discharged as to one-fifth, etc. The pleas contained other allegations of insolvency of parties, etc., that would have made them good if the collateral had been pledged for this note alone, but they contained allegations that the collateral was pledged for this and other indebtedness, and no allegation that the other indebtedness was paid.

Appellee filed numerous replications to these pleas, concluding to the country, they covered a denial of practically every allegation of fact, and some of the replications aver that certain of the collateral had been collected and applied to items of said indebtedness for which it was pledged other than the note in suit. A jury trial began J anuary 22, 1912, and continued until February 9th, much of the time being consumed in passing upon pleadings that were filed during the trial; then after the evidence had been in part heard, because of the sickness of the presiding judge, the trial was suspended until February 27th, when it was by agreement of parties taken up by another judge of the circuit and proceeded to a close, resulting March 8th in a verdict for the plaintiff of $9,448.65, and thereafter to judgment on the verdict, from which this appeal is taken.

The pleadings are not all included in the record, and those that are found there are so numerous that it is difficult to tell from the abstract, or the record itself, what questions of pleading were passed on by the trial court. It may be sufficient to say that under the issues framed evidence was heard on the question whether the Major note was deposited as collateral for all the indebtedness; whether it was wrongfully surrendered by the Bank; whether if it did secure all the indebtedness there were other notes less well secured than the one in suit, to which the proceeds would have been applicable had it been collected; whether other items of collateral had been lost; and whether still others had been realized on and the proceeds applied by the creditor Bank to other notes secured by the same collateral. In short it was attempted in this suit to ascertain the rights of the defendants in the collateral, not only as between themselves and the plaintiff, but also between themselves and the sureties on other notes, who were not parties to this action, and then give the defendants the benefit by way of defense of whatever might be found to be their share of the loss accruing to all beneficiaries by negligence or misconduct of the plaintiff in caring for collateral in which they were all interested.

Appellants were liable to appellee on their unconditional written promise to pay the debt unless they had some valid defense. If the Bank had collateral to secure only the note on which they were liable, and collected or negligently lost that collateral, they could no doubt defend on that ground in this action at law, whether the collateral was received by the creditor at the time of their undertaking or thereafter. Kirkpatrick v. Howk, 80 Ill. 122; Rogers v. School Trustees, 46 Ill. 428; 32 Cyc. 217; Pomeroy’s Equity Jurisprudence, sec. 1419. It is an equitable defense permitted in actions at law, well established and well settled. It has always been recognized in the courts of this State and is discussed in standard works on equity jurisprudence under the titles of “Marshaling of Securities” and ‘ Marshaling of Assets. ’ ’ But the defense attempted in this case, and permitted by the court, was not that the plaintiff owed the defendants a duty that was unperformed, but that the plaintiff owed the defendants and other persons, not parties to the action, a duty that was neglected to the damage of the defendants and said other persons; and the court without these other persons before it undertook not only to determine whether there was a breach of trust, but also if there was one in what proportion the defendants and the other beneficiaries were entitled to be compensated, and that being ascertained, to allow these defendants in this suit the benefit by way of defense of what they might as beneficiaries of the trust be entitled to on an accounting and marshaling of securities.

We are of the opinion that the defense should not have been allowed. The only authority cited by counsel on that question is Bank of Monroe v. Gifford, 79 Iowa 300. Counsel for appellants say they find no other case dealing with that question, and there is some ground for citing that case as authority for appellant’s position that the court should entirely disregard- the fact that there are other persons, not before the court, interested in the collateral in question. It is a matter of common knowledge that banks often take what is termed “blanket collateral,” and it would seem that similar controversies might often have arisen and found their way into text-books and reported cases. We have, however, been able to find no direct authority on the question: We do not find the case of Bank of Monroe v. Gifford, supra, cited on that point in any later case or text-book, and the decision rests on no cited authority.

All other cases that we have examined where sureties were permitted at law to interpose the equitable defense of loss or misapplication of collateral by the creditor are those in which all parties interested in the application of the collateral were before the court. It is in the cases and text-books oft repeated that the creditor holds pledges and collateral securities as a trustee for the benefit of all parties concerned. A court of law, in actions by creditors against sureties, permits an inquiry whether such collateral has been collected or negligently lost; and if it has, affords the defendant relief. The defendant is permitted by way of counterclaim to show that the plaintiff has violated a trust in which he, the defendant, was beneficiary and to set off the damages occasioned to him by such violation of trust. Counterclaims and set-offs must be owned by the defendant. No one would plead a set-off of a debt due from the plaintiff to the defendant and some third person; and while the defense attempted in this suit may not be, strictly speaking, a set-off or counterclaim (in Code States it is usually spoken of as a counterclaim), yet it is in the nature of such a defense. The defendants in this action would not in a direct proceeding against the plaintiff Bank be permitted any recovery for any negligence or malfeasance of the Bank in handling this collateral without making parties to the same action all other persons interested in the application of the collateral. If this is true, we do not see by what process of reasoning they can be allowed this defense in the nature of a cross-action.

Appellants say they could not pay the debt for which they were liable and thereby become subrogated to the rights of appellee in the collateral, because it secured not only this but other notes, and they would have been compelled to pay the whole indebtedness for which the collateral was pledged. This may be true; the bank certainly could not have been compelled to part with the collateral until all the notes it secured were paid.

We are of the opinion that the defense was futile even if it be true that the parties voluntarily submitted the questions involved by their pleadings. Suppose that in an ordinary action of assumpsit the debtor pleads a set-off, and it appears from the pleadings or the evidence that the debt sought to be used as a counterclaim is not one to the defendant alone but is due him and another person, not a party to the action. We apprehend it would make no difference if the parties had been through a long trial, without objection, on the question whether it was a valid debt, and if so what part of it belonged to the defendant. The Appellate Court could not review the record of evidence and instructions on that question, but would be compelled to say that the defense was not permissible and thus dispose of the question. We regard the defense in this case as within the same rule for similar reasons.

If in cases of “blanket collateral” securing many different obligations, with different sureties or guarantors, courts were compelled in actions at law to marshal securities in each case there might, and probably would, arise a ridiculous conflict of judgments on the different records. It seems to us, both on principal and authority, that this defense in this action should be denied; and there being no other defense interposed the judgment should be affirmed regardless of any question of error of the trial court in passing on the evidence and instructions.

The judgment is affirmed.

Affirmed.


author: Mr. Justice Dibell

text:
    The People of the State of Illinois, Defendant in Error, v. Romo Frioni, Plaintiff in Error.
    Gen. No. 5,836.
    (Not to be reported in full.)
    Error to the Circuit Court of McHenry county; the Hon. Chables H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 13, 1913.
    Statement of the Case.
    Action by the People of the State of Illinois against Romo Fr¿oni et al. on an indictment charging defendants with fraudulently conspiring with each other with fraudulent and malicious intent to obtain by false pretenses the money of the Citizens ’ State Bank of Crystal Lake and to cheat and defraud said bank of the same. Frioni pleaded not guilty and was tried alone and was convicted and sentenced to imprisonment in the penitentiary and to pay a fine. To reverse the judgment, he prosecutes a writ of error.
    Sass, Nicolai & Hood, for plaintiff in error.
    David R. Joslyn, for defendant in error; E. H. Waite and Paul J. Donovan, of counsel.
    Abstract of the Decision.
    1. False pretenses, § 40

      —when instruction in prosecution for conspiracy to obtain money by false pretenses erroneous. In an action against a defendant indicted for a conspiracy to obtain money by false pretenses, and instruction telling the jury what was sufficient to sustain a charge of conspiracy and entirely omitting the element of false pretenses, held erroneous.
    2. Criminal law, § 293

      —when instruction as to proof of guilt erroneous. An instruction after stating the rule of law that defendant is presumed to be innocent until a verdict is reached finding him guilty, further said: “This rule of law is not meant to prevent you from being convinced, of the guilt of the defendant at any time during the trial when the evidence, if any, is sufficient to so convince you of his guilt, and if you are convinced by the evidence at any time during the trial of the guilt of the defendant in manner and form as charged in the indictment, beyond a reasonable- doubt, and there is no other subsequent evidence which raises in your mind a reasonable doubt of the guilt of the defendant, and you remain so convinced until all of the evidence is in, then you should find the defendant guilty,” held erroneous and injurious to the defendant.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

3. Cbimihal law, § 305 —when instruction as to contradiction of defendant’s testimony by other xoitnesses erroneous. An instruction that the jury may take into consideration the fact, if such is a fact, that defendant has been contradicted by other witnesses, held erroneous as not being made to apply to other witnesses who were contradicted.

4. Cbimlnal law, § 309 —when instruction on reasonable doubt improver. An instruction given for the People, relating to the subject of reasonable doubt, was a stock instruction often approved, except that there was inserted therein the following: “To acquit under the influence of doubts unreasonably created from whatever cause is a virtual violation of the juror’s oath, and an offense of great magnitude against the interests of society,” held improper as being an effort to frighten or drive the jury to a conviction.


author: Per Curiam.

text:
    The People of the State of Illinois, Appellant, v. John L. Witzman et al., Appellees.
    Gen. Nos. 5,856, 5,857.
    (Not to he reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. S. C. Stotjgh, Judge, presiding.
    Heard in this court at the October term, 1913.
    Appeals dismissed.
    Opinion filed November 13, 1913.
    Statement of the Case.
    The two cases above entitled were actions of debt on the official bonds of John L. Witzman as Circuit Clerk of La Salle county covering two terms in said office. In each case all breaches assigned in the declaration were dismissed except the second breach, which related to naturalization fees. In each case the defendants demurred to the second breach and the demurrer was sustained. The plaintiff elected to abide by said demurrer and judgment was entered against him for costs. From the judgment, plaintiff appeals.
    W. E. Redmon and W. I. Hibbs, for appellant.
    Duncan, Doyle & O’Conor, for appellees.
    Abstract of the Decision.
    1. Appeal and error, § 284

      —what essential to a final judgment. In order for judgments to he final, the order should adjudge “that the plaintiff take nothing by his suit, and that the defendants go hence without day.”
    2. Appeal and error, § 267

      —right of Appellate Oourt to decide on merits when judgment appealed from is not final. On appeal from a judgment which is not final, the Appellate Court cannot ignore the defect and decide the merits for, if it should affirm the action of the trial court, the judgment of the Appellate' Court would be treated as void by the Supreme Court.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Per Curiam.


text:
    The People of the State of Illinois ex rel. Charles Agnew, Plaintiff in Error, v. Edward Graham et al., Defendants in Error.
    Gen. No. 5,887.
    (Not to be reported in full.)
    Error to the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the October term, 1913.
    Appeal dismissed.
    Opinion filed November 13, 1913.
    Statement of the Case.
    Information in the nature of a quo warranto filed by the People of the State of Illinois on the relation of Charles Agnew against Edward Graham, F. E. Blakeslee and P. J. Cruise charging that defendants were unlawfully holding and executing the positions of mayor and alderman of the city of Earlville, and the positions of president, secretary and member of the board of local improvements of said city, and prayed that they be required to answer by what warrant they and each of them claimed to hold and execute said offices. Respondents filed a plea setting up their title to said offices. A general and special demurrer was interposed to said plea, and the demurrer was overruled and the People elected to abide by its demurrer. The court entered a rule on the People to reply instanter, defaulted the People for want of a reply, found the respondents not guilty, and entered a judgment that the defendant recover from the People, on the relation of Charles Agnew, their costs, with execution therefor.
    From the order, plaintiff prosecutes an appeal.
    L. B. Olmstead, Butters & Armstrong and George S. Wiley, for plaintiff in error.
    John Faissler, for defendants in error.
    Abstract of the Decision.
    1. Appeal and eerob, § 284

      —form of final judgment. A final judgment after a demurrer to a plea had been overruled and the plaintiff had elected to abide by the demurrer should be “that the plaintiff take nothing by its suit and that the defendants go hence without day,” followed by a judgment for costs.
    2. Appeal and error, § 278

      —when judgment entered on overruling a demurrer not a final judgment. Where plaintiff’s demurrer to a plea has been overruled and the plaintiff has elected to abide by its demurrer, it is improper for the court to enter a rule upon plaintiff to reply and to default plaintiff and enter a finding on his failure to reply; and on appeal from the order such matters appearing in the record are surplusage and the appeal will be dismissed for want of a final judgment.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Per Curiam.

3. Quo warranto, § 58 —when execution should not he awarded against People for costs. On information filed by the People on the relation of a person, a judgment for costs should not award an execution therefor against the People, although it may be awarded against the relator.


author: Mr. Presiding Justice Whitney

text:
    J. F. Hessling, Defendant in Error, v. Frank Petillion et al., Plaintiffs in Error.
    Gen. No. 5,826.
    Mortgages, § 409

      —when defense of fraud and want of consideration not sustained hy the evidence. On bill to foreclose a mortgage given by the defendants to the complainant in a transaction for an exchange of lands, the defendants filed an answer setting up fraud and want of consideration and claimed that the mortgage was executed for a loan, while the complainant claimed that it was executed as part of the consideration for the trade. Held that a decree of foreclosure was sustained by the evidence, there being no evidence of fraud and it appearing from the contract for the exchange that the mortgage entered into the consideration for the trade.
    Error to the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Carl E. Sheldon, for plaintiffs in error.
    R. W. E. Mitchell and Brooks & Brooks, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, samp topic and section number,

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

This was a proceeding in the court below commenced by J. F. Hessling, defendant in error, hereinafter styled the defendant, against Frank Petillion and Grace M. Petillion, plaintiffs in error, hereinafter styled plaintiffs, to foreclose a mortgage for $2,187.62 on Lot 4, Block 31, west of Broadway in the city of Sterling, Illinois, which mortgage was dated August 27, 1907. The plaintiffs (defendants in the court below) filed an answer to the bill setting up as a defense to the foreclosure of the mortgage, fraud and want of consideration. Issue was joined and the cause referred to the master to take proofs and report same together with his findings, which he did. Objections were made before the master and exceptions filed in the Circuit Court and overruled and a decree of foreclosure entered, on which this writ of error is prosecuted.

It appears that prior to August 20, 1907, plaintiffs were the owners of a farm of about 91.25 acres situated about one mile north of the city of Sterling, and defendant was the owner of said Lot 4. Negotiations were had between said parties for an exchange of the properties, and on August 20, 1907, a contract between the defendant and plaintiffs was drawn up by the defendant, who was a real estate dealer, by which the plaintiffs agreed to convey to defendant their farm, subject to certain mortgages aggregating about $5,840, which defendant was to assume and by which defendant agreed to convey to plaintiffs said Lot 4, and on which they were to give a first mortgage of $2,000 to defendant. Plaintiffs claim that defendant agreed to make them a loan of $2,000 on said Lot 4 and defendant claims that the $2,000 mortgage was given as a part of the consideration for the exchange. On the 27th day of August, 1907, the parties met at defendant’s office, which was also the office of one Ferguson, a lawyer. Respective deeds were drawn and executed and the mortgage on Lot 4 for $2,000 was drawn by Ferguson and signed by the plaintiffs.

From the evidence taken before the master and reported to the court, it appears that on the one hand is the contract in question signed by the parties thereto and the mortgage and note for $2,000. The oral testimony is conflicting, the plaintiffs testifying to one state of facts in regard to the contract and the defendant to another.

By the contract the defendant, who was the party of the second part therein, agreed to pay for the farm as follows: “To assume a certain mortgage of $5,000.00 and one of $840.00 and interest from December 8,1907, and the taxes or amount of taxes that exceeds the amount on Lot 4, Block 31, west of Broadway, Sterling, Illinois; that said second party agrees to deed to the •first party, and the said first party agrees to give a first mortgage of $2,000.00 to second party on Lot 4, Block 31, west of Broadway, Sterling, Illinois, for five years, due on or before five years after date, at six per cent, of interest payable monthly.”

The only reasonable construction that can be given this contract is that the parties traded their respective holdings of real estate; the defendant was to assume the $5,840 mortgage on the farm and plaintiffs were to give a first mortgage of $2,000 to defendant on Lot 4, Block 31, all entering into the consideration for the trade. So much for the construction of the language in the contract itself. It is shown that both of the plaintiffs could read and write and understand the English language, in which this contract was drawn up. Over their signature appears the language above quoted. They must be presumed to have understood the language of that contract, unless there appears in the record evidence of fraud and circumvention in obtaining their signatures, or unless it appears that they did not read or hear read the contract when it was made and executed. It would appear from the evidence that plaintiffs are probably less versed in business ways than the defendant. It also appears that immediately after the execution of the note and mortgage they took immediate steps to avoid the effect of what they had done. It appears expressly from the evidence that no threats or intimidation was used to or against either of the plaintiffs at the time the contract was signed or the note and mortgage given, although plaintiffs testify that they were threatened that if they did not sign the note and mortgage, proceedings would be commenced against them to compel them to carry out the contract. It is expressly denied by defendant that anything was said about threatening the plaintiffs to proceed against them if they did not sign the note and mortgage, nor was anything ever said by the defendant about loaning $2,000 to plaintiffs, nor does it appear anywhere in the evidence that the defendant resorted to any active fraudulent methods in procuring the signatures to either contract, or to the note and mortgage. If fraud exists it would have to be presumed, which the l'aw does not permit. The deed of the farm from plaintiffs to the defendant did not by its terms require the defendant to assume and pay the mortgages, although he had done so by the terms of the contract. There is much in the evidence of the defendant which throws doubt around the transaction and which tends to show that plaintiffs were in fact overreached on the question of values of the respective properties. The man Ferguson died during the taking of the testimony and his testimony does not appear in the record. From what plaintiffs say of his conversation and conduct, it is possible he may have been aiding the defendant to get the contract throug*h, or he may have been entirely honest in what he said to the plaintiffs; but plaintiffs are hardly in a position to urge anything in defense of this foreclosure proceeding unless it may be lack of consideration for the note, and on that point there is much doubt. The evidence of the defendant in that respect is corroborated by the contract itself, signed by the parties. No cross-bill was filed in this proceeding asking a cancellation of the contract or reformation of it, but to the contrary on September 2, 1907, over three years before this bill of foreclosure was filed, plaintiffs commenced a suit by filing a bill in the Circuit Court seeking to have their deed of the farm to defendant cancelled and offering to reconvey Lot 4 to defendant. Subsequently the plaintiffs changed their form of action, transferred the case from the chancery to the law side and sued the defendant for the $2,000 which they claimed they were entitled to by virtue of the mortgage they had given defendant, and this case is still pending and undetermined.

The master had the witnesses before him and found that the mortgage should be foreclosed. The Circuit Court on hearing the exceptions to the master’s report agreed with the master. Under all the circumstances we cannot come to any other conclusion than that the decree of foreclosure should be affirmed. Decree affirmed.

Affirmed.


text:
    Mary E. Quick, Plaintiff in Error, v. Clayton Patterson, Executor, Defendant in Error.
    Gen. No. 5,829.
    (Not to be reported in full.)
    Error to the Circuit Court of DeKalh county; the Hon. Mazzini Slusser, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Petition by Mary E. Quick in the County Court in the matter of the estate of Henry Patterson, deceased, for the allowance of a child’s award. The County Court denied the prayer of the petition. An appeal was taken to the Circuit Court and heard with the same result. To reverse the judgment of the Circuit Court, the petitioner brings error.

      F. E. Brower, H. T. Smith and W. C. DeWolf, for plaintiff in error.
    George Brown, G. E. Stott and Jones & Rogers, for defendant in error.
    Abstract of the Decision.
    Executors and administrators, § 175

      —when married daughter not entitled, to a child’s award. Under section 77 of the statute relating to “Administration of Estates,” J. & A. f 126, a married daughter of a deceased householder is not entitled to a child’s award because of the fact she lived with her father while teaching school where her husband resided in another place and she visited him on Sundays and their relations as husband and wife were in no way adverse. In such case her residence is that of her husband.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Myrtle Pope, Appellee, v. Fred Jensson, Appellant.
    Gen. No. 5,837.
    (Not to be reported in full.)
    Appeal from the County Court of Lee county; the Hon. Robert H. Scott, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Prosecution for bastardy by the People of the State of Illinois on the relation of Myrtle Pope against Fred Jensson. There was a verdict of a jury finding defendant guilty and judgment was entered on the verdict. From the judgment, defendant appeals.
    Brooks & Brooks, for appellant.
    Harry Edwards, for appellee.

      Abstract of the Decision.
    1. Bastards, § 22

      —when finding of guilty sustained by the evidence. On prosecution for bastardy, a verdict of guilty held sustained by the evidence.
    2. Appeal and error, § 1561

      —when refusal of requested instructions not error. Refusal of appellant’s requested instructions which were substantially covered by others given for the appellant, held not error.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    Theodore Trouth, Conservator, Appellee, v. Henry Brown, Executor, Appellant.
    Gen. No. 5,840.
    1. Guardian and ward, § 76

      —when estate of conservator not entitled to compensation for care and support of ward. Where an executor filed a report concerning the condition of accounts of the deceased as conservator of his feeble-minded stepdaughter and the report sought to charge the estate of the ward with board and clothing, care and doctor bills while she was living with the deceased, held that a judgment disallowing such charges was proper, it appearing that the ward did much of the housework and there was no evidence to show that deceased ever intended to charge her for care and support.
    2. Contracts, § 25

      —obligation to pay for services and support of person living in family relation. Where a person lives in the family as if a member thereof and renders services and receives support, the services and support are all contributions to the family relation, and neither party can recover from the other therefor unless there was an express contract that compensation should be paid, or unless the circumstances are such that it will be a reasonable inference therefrom that a contract did exist or that compensation was mutually intended.
    Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    A. A. Woleersperger, for appellant.
    N. G. Van Sant and Robert W. Besse, for appellee.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

This is an appeal from, a judgment of the court helow which, according to the recitals in the appeal bond given by appellant, is from a judgment of the Circuit Court for costs of suit, although in fact the judgment' of the Circuit Court is one disallowing appellant’s claim of a balance due him as executor, set forth in a report made by him as executor of the will of Christian Hartman, deceased, wherein he purported to show the condition of the accounts of said Christian Hartman from a certain date up to his death as conservator of said Louisa Kirscher, and while numerous errors are assigned, no question is raised or suggested in the argument except that of disallowing appellant’s claim at his costs.

In 1866, when the said Louisa Kirscher was about six years old, her widowed mother married said Christian Hartman and Hartman went to live on the farm which had been the property of the father of Louisa Kirscher until his death. Louisa Kirscher was feeble-minded. They lived on the farm about nineteen years after the marriage and then moved into Sterling. At some time, not shown in the evidence, Christian Hartman was appointed conservator of the estate of Louisa Kirscher. He died in 1912, leaving a will which was probated, and in and by his will he gave to his wife his real and personal property to have, to use and enjoy so long as she should live, and at the death of his wife he gave the same property to said Louisa Kirscher to have, to use and enjoy so long as she should live, and at her death to certain persons named in the will in fee. His executor filed, in the matter of the conservatorship of Louisa Kirscher, a report covering the conservatorship of Hartman from March 1, 1901, to March 1, 1912. He charged Christian Hartman with $2,400 as the amount of the estate at the date of the last report, March 1, 1901, and with interest on that sum from March 1, 1901, to May 1, 1912, at five per cent., making a total of $3,720; however, there is nothing in the record from which we can determine what any report made by Christian Hartman in his lifetime as conservator showed either as to debits or credits. He then sought to charge Louisa Kirscher with board and clothing, care and doctor bills from March 1, 1901 to March 1, 1912, at $5 per week. No receipts or vouchers were filed with this report, although the report purported to be “as per vouchers herewith submitted,” nor was there any order of any court authorizing the payment of any sums for board and clothing, care and doctor bills. On the hearing on tliis report, the County Court allowed the claim in favor of Christian Hartman’s estate for board and clothing, care and doctor bills in the exact amount of the interest which the report confessed. Each party appealed from that decision to the Circuit Court and perfected an appeal. The case was tried without a jury in the Circuit Court and the court entered an order disallowing the claim of the executor for the support of Louisa Kirscher and dismissed the claim at the costs of claimant, said costs to be paid in due course of administration, and the recitals in the appeal bond given by the executor are as above stated.

Appellant argues that the real question is whether a conservator can charge for the support and necessaries of life of his ward and spend the fund of his ward therefor without an order of court, and whether he can charge his feeble-minded stepdaughter for necessaries and support. That, however, is not the question really presented by this record. There is nothing to show that Hartman ever did charge his ward for her board and clothing, care and medical attendance, or that he ever did any act or said anything that indicated that he had any intention of making any such charge. It is the executor who made the charge in that behalf after Hartman’s death. Hartman married Mrs. Kirscher, the mother of Louisa Kirscher, and went to live with her on the farm which had been her deceased husband’s and lived there with them for nineteen years. Whether this was then the farm of Louisa Kirscher or her mother we are not informed. After nineteen years they moved into Sterling and obtained a home there. From some source at some time Louisa Kirscher became the owner of a farm, and in 1901, at the report preceding the one now in question, the conservator had charged himself with the balance of $2,400 belonging to his ward. We do not know when Hartman was appointed conservator. Early in this trial the appellant objected to the introduction of any evidence that showed the condition of things between the conservator and his ward prior to 1901, the date of the last report, and the court sustained the objections of appellant and thereby the inquiry was limited to what had occurred since the last report. We must assume that if on the former report Hartman had asked for an allowance for clothing, board, care and medical attendance of the ward, appellant would have shown that fact and would not have objected to going back of 1901. From the time of the marriage until Hartman died, a period of forty-six years, this feeble-minded girl and woman lived in the family of Hartman. According to the evidence offered in behalf of Louisa Kirscher, she was capable of doing much work in the household and did do much work of all kinds that women would perform, and much of the time when there was no other servant in the house and considerable of the time when the mother was ill.

According to the evidence introduced by the appellant, she was so feeble-minded that she was incompetent to do anything that was of any value. Upon an examination of the testimony we think that offered in behalf of Louisa Kirscher comes from sources likely to be the best informed and the court was warranted in finding that she did all kinds of housework; that she cooked the dinner on Sunday while the rest of the family were at church, and many other times when they were absent from home, and that she did other household work.

In Heffron v. Brown, 155 Ill. 322, the rule is laid down that where a person lives in the family as if a member thereof and renders services and receives support, that the services and support were all contributions to the family relation and neither party can recover from the other therefor unless there was an express contract that compensation should be paid, or unless the circumstances are such that it will be a reasonable inference therefrom that a contract did exist or that compensation was mutually intended.

It does appear from the evidence that Hartman said he had sometimes nsed a little of Louisa’s interest when he needed it, but that he had paid it all back. It is also in evidence that he said, “I don’t know what I would do if it wasn’t for Louisa. I don’t know how we would get the work done, because when her mother wasn’t well Louisa had to do it all.” It is also in evidence that Louisa called Hartman, “father.”

From all this evidence it is clear to us that Hartman did not intend to use any of Louisa’s money, principal or interest, or charge her for her care and support. There is nothing in the evidence from which any intention to charge her could be found. The court below properly allowed nothing for this care.

Judgment affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Charles A. Johnson et al., Appellee, v. John Bushell et al., Appellants.
    Gen. No. 5,845.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.

      Statement of the Case.
    Bill by the People of the State of Illinois on the relation of Charles A. Johnson and others against John Bushell and others to enjoin defendants from operating an’ asphalt factory in a residence district of the village of Averyville, Illinois, in a manner to cause dense clouds of smoke, dirt and other substances to issue therefrom, or to permit any noxious or offensive smell to emanate from said factories to the danger of the health of individuals and the public. A preliminary injunction was issued and on a hearing upon answer and replications filed a decree was entered making the injunction perpetual.
    From the decree, defendants appeal.
    Richard H. Radley, for appellants.
    C. E. McNemar, for appellee.
    Abstract of the Decision.
    Nuisance, § 21

      —when operation of asphalt factory may he enjoined. On bill to enjoin the defendants from operating, an asphalt factory in a residence district in a manner to cause clouds of smoke, dirt and other substances and noxious odors to issue therefrom to the danger of the health of individuals and the public, held that a decree granting a perpetual injunction was proper under the evidence, though it had not been first established at law that, the factory was a nuisance, there being no substantial dispute in the evidence but that the plant was a nuisance and that the relators were injured.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same ¿epic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    Roy Forney, Appellee, v. Crawford Locomotive & Car Company, Appellant.
    Gen. No. 5,848.
    (Not to be reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldridge, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by Boy Forney against Crawford Locomotive & Car Company, a corporation, to recover a balance claimed to be due for wages. Suit was first commenced before a justice of the peace where plaintiff recovered a judgment. On appeal to the Circuit Court he also recovered a judgment. To reverse the judgment of the Circuit Court, defendant appeals.
    Robert E. Larkin, for appellant.
    No appearance for appellee.
    Abstract of the Decision.
    1. Master and servant, § 84

      —when judgment for wages cannot he sustained. In an action for wages, the facts showed that plaintiff hired to work at piece work and not by the day, and when he came to be paid he found that he had made only seventy cents a day, and after working one day longer, quit. Beld that a judgment for plaintiff coula not be sustained for the reason that he" had contracted to work by the piece, was paid by the piece and accepted the pay.
    2. Appeal and error, § 1802

      —when judgment may he reversed without remandment. On appeal from a judgment for wages, where the judgment cannot be sustained and it appeared as to a part of plaintiff’s claim for which he might recover that the suit was prematurely brought, held that the judgment could be reversed without remanding the cause to enable the plaintiff to recover for such part of his claim.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    H. C. Forney, Appellee, v. Crawford Locomotive & Car Company, Appellant.
    Glen. No. 5,849.
    (Not to he reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldbidge, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by H. C. Forney against Crawford Locomotive & Car Company, a corporation, to recover a balance claimed to be dne for wages. The plaintiff was a brother of the plaintiff in the case of Forney v. Crawford Locomotive & Car Co., ante, p. 231, and hired ont at the same time and each testified for the other substantially to the. same facts as in that case. This case is practically and substantially the same as that case and the decision rendered therein held controlling.
    Robert E. Larkin, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    T. D. Murdock et al., Appellants, v. The Calgary Colonization Company, Appellee.
    Glen. No. 5,850.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Warren county; the Hon. Robert J. Gbieb, Judge, presiding.
    Heard in this court at the April term, 1914.
    Appeal dismissed.
    Opinion filed April 15, 1914.

      Statement of the Case.
    Action by T. D. Murdock and E. V. Field against The Calgary Colonization Company to recover on a contract for commissions on the sale of land, which contract was oral. There was a plea of the statute of limitations of the State of Manitoba, where the contract was made, and a demurrer thereto which was overruled. Thereafter defendant withdrew its plea of the general issue and plaintiffs elected to stand by their demurrer. Thereupon a judgment for costs was entered in favor of defendant against the plaintiffs. From the judgment, plaintiffs appeal.
    E. P. Field and Safford & Graham, for appellants.
    Brown & Soule, for appellee.
    Abstract of the Decision. Appeal and ebbob, § 278

      —when judgment -for costs on overruling a demurrer is not final. A judgment against plaintiffs for costs, where the court overruled plaintiffs’ demurrer to a plea and the plaintiffs elected to stand by their demurrer, held not a final judgment where it did not adjudge that “plaintiffs take nothing by their suit and that defendants go hence without day.”

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    George H. Molner, Appellee, v. Anna Molner, Appellant.
    Gen. No. 5,859.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Will county; the Hon. Dobbance Dibell, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.

      Statement of the Case.
    Bill by George H. Molner against Anna Molner for. a divorce charging adultery. An answer denying the charge was filed and also a replication, and the case was heard by the court without a jury. From a decree finding the defendant guilty of adultery, defendant appeals.
    Q. J. Chott, for appellant.
    Edward R. Nadelhoffer, for appellee.
    Abstract of the Decision.
    1. Divorce, § 45

      —sufficiency of the evidence to prove cause of divorce. Section 8 of the divorce statute, J. & A. j[ 4223, requiring, that the cause of divorce be fully proven by reliable witnesses, does not apply when a trial is had and issues joined by bill, answer and replication. In such case the ordinary chancery rules apply and the weight of the testimony is the thing to be considered even though that question may be decided in favor of a party having but one witness.
    2. Divorce, § 46

      —proof sufficient to sustain charge of adultery. Decree of divorce finding wife guilty of adultery, held sustained by the testimony of the paramour, where the wife denies what the paramour says and is discredited in her testimony by the fact that she denies other circumstances tending to incriminate her that are sworn to by other witnesses in corroboration of the paramour, and there is also testimony of other witnesses of her acts tending to show an adulterous disposition.
    3. Appeal and error, § 1713

      —when errors not argued are deemed waived. Where numerous errors are assigned on the record but no reference is made in the argument to any of the errors assigned, except that the decree is not warranted by the evidence, all other errors will be deemed waived.
    Dibbll, J., took no part in this decision.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    Western Bottle Manufacturing Company, Appellee, v. William V. Dufner, Appellant.
    Gen. No. 5,868.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthington, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by Western Bottle Manufacturing Company, a corporation, against William V. Dufner to recover the purchase price of certain bottles. The defense interposed'. was that the bottles were not lettered as ordered. Judgment was entered in favor of plaintiff for $43.52, and from the judgment defendant appeals.
    The errors assigned and argued all go in effect to the claim that the verdict is not supported by the law and the evidence, and that the court erred in admitting the testimony of an expert witness.
    Clarence W. Heyl, for appellant.
    Kirk & Shurtleff, for appellee.
    Abstract of the Decision.
    1. Sales, § 156

      —when buyer bound to pay for goods by partial acceptance. In an action for the purchase price of bottles, a defense was interposed that the bottles were not lettered as ordered. There was a conflict in the evidence on that question and the defense was met by evidence, though disputed, that defendant accepted a part of the bottles. The court ruled the law to be that defendant was bound to pay for the whole shipment if it accepted a part. Held that ruling was a correct statement of the law.
    2. Evidence, § 424

      —when expert evidence as to typewriting admissible. In an action for the purchase price of bottles, where there was a question whether defendant accepted a part of the bottles, and such .acceptance depended upon whether a postscript on a letter written by defendant was a forgery, held that the admission of the testimony of a witness familiar with typewriting, to the effect that the postscript was written by the same machine with which the body of the letter was written, was not improper^

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.


text:
    Moritz Roth, Appellant, v. Galva State Bank et al., Appellees.
    Gen. No. 5,876.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Henry county; the Hon. Fbank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Bill by Moritz Both against Galva State Bank, Olof C. Anderson, Selma Anderson, S. P. Samuels on and Charles C. Wilson, executor of the last will and testament of Charles C. Wilson, deceased, to have reviewed, reversed and set aside a certain deficiency decree entered against the complainant in a foreclosure proceeding, wherein the Galva State Bank was complainant and the said Andersons, Both and Wilson were defendants. The Galva State Bank demurred to the bill and the demurrer was sustained and the bill of review dismissed. Prom the decree, complainant appeals.
    James H. Andrews and Nels P. Anderson, for appellant.
    Albert E. Bergland, for appellees.

       See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

Abstract of the Decision.

1. Mortgages, § 645 —when hill of review to set aside a deficiency decree properly dismissed. A deficiency decree in a foreclosure proceeding was entered against a grantee of the mortgaged premises, who assumed the mortgage, and such grantee filed a hill to review the decree claiming that no deficiency decree could he entered against him in chancery for the reason that he did not own the premises when the bill for foreclosure was filed, and that he was not a proper party defendant to the hill in the absence of such an allegation. Held that the bill for review was properly dismissed for the reason that he had a complete remedy in the foreclosure proceeding if his contention was correct, first, by demurring to the foreclosure hill; second, by appealing from the deficiency decree entered against him; or third, by taking a writ of error and reviewing the whole proceeding for failure to find his ownership of the land, it also appearing that he could have answered the original bill setting up his conveyance, and it further appearing that he still had a right to prosecute a writ of error from the entire proceeding.

2. Mortgages, § 635 —against whom a deficiency decree may he entered. Where a grantee of mortgaged premises assumed the mortgage and later conveyed the premises to another before bill for foreclosure was filed, held that he was a proper party defendant to a bill for foreclosure and that a deficiency decree could be entered against him.

3. Equity, § 554 —when hill is a hill of review and also in the nature of a hill of review. Where complainant in a bill to review a deficiency decree against him in a foreclosure proceeding alleged as an affirmative fact, not appearing in the record sought to be reviewed, that before the hill for foreclosure was filed he had conveyed the mortgaged premises to another, held that the bill was a bill for review and also a bill in the nature of a bill of review.


text:
    Peoria & Pekin Union Railway Company, Appellant, v. Corning & Company, Appellee.
    Gen. No. 5,880.
    Carriers, § 204

      —when rate of switching charges fixed hy interstate commerce act does not apply. The rate of switching charges fixed by the interstate commerce act at Peoria does not apply to switching of cars for a distilling company from its distillery to its warehouse within the limits of the city, where the goods were shipped to the warehouse to he held there without any knowledge of where they should he shipped when they should leave the warehouse. I
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbatjgh, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Stevens, Miller & Elliott, for appellant.
    Evans & Evans, for appellee.

       See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Whitney

delivered the opinion of the court.

This is an appeal from the judgment of the Circuit Court in a suit in assumpsit brought by appellant against appellee to recover the sum of $9,484, claimed to be due for certain switching and transportation furnished appellee at its instance and request. The case was tried without a jury and resulted in a judgment of $485.45.

The appellant is a railroad corporation organized under the general railway act of the State of Illinois, and doing a general railway business. Its main lines extended between the cities of Peoria and Pekin and it had extensive switching yards. Aside from the general railroad business, consisting in the carrying of passengers and property, it also transacts an extensive terminal and switching business, doing switching service for most of the roads entering the city of Peoria, and nearly all of said roads extend into other States.

Appellee is a corporation and for many years last past has been engaged in the business of distilling and selling spirits, alcohol and whiskey, and rectifying the same. In the conduct of its business it has erected and owns large and extensive plants, buildings and warehouses in the city of Peoria. Appellee makes shipments to various points throughout the United States and other countries.

The suit was brought to recover from appellee switching charges covering several years at $2 a car, which is the rate fixed under the interstate commerce act for that period at Peoria. A corporation company of which appellee is the successor had a contract many years old with appellant under which appellant was bound to do switching for appellee at a price fixed in the contract at not exceeding $1 a car. The main part of the switching was between the distillery and the warehouse of appellee. One of the buildings was changed in location after the contract was made, but for years appellant went on shipping under the terms of the contract, thereby construing it to be effective notwithstanding, the change in location of the building.

In 1906, appellant construed the interstate commerce act to apply to these charges and that it had no right to longer continue to ship for appellee at a price under the rate fixed by the interstate commerce law. The question arising in this case is whether the interstate commerce act applies to any or all of the business for which the suit was brought to recover. There is no question but that the act of Congress abrogates all contracts made before as well as after the act went into effect in conflict with the provisions of that law as to rates.

The trial court held in substance that switching cars from appellee’s distillery to its warehouse was mere cartage; that when appellant, a common carrier, took goods from the distillery to the warehouse it was engaged in intrastate commerce, and that the interstate commerce act does not apply. It is probable, though not appearing clearly from the record, that the goods were shipped from the distillery to the warehouse to be held in the warehouse for .months and years without any knowledge or intention of where they should be shipped when 'they should leave the warehouse.

It seems to us the transaction does not fall within the rule of cases that hold when a common carrier takes goods from one point to another with the view of transferring to a point out of the State, the first carrier is engaged in interstate commerce. Some of the goods for which charges were made were shipped from the warehouse to lines of railroads to be transported outside the State.

Appellant aided in billing certain of the goods which were to be shipped outside the State, and the trial court apparently held, as to those goods, they were started on an interstate journey when appellant took them from the warehouse, and that therefore the charge was controlled by the interstate commerce law, and as to them the $2 rate was allowed. It is claimed by appellant that a common carrier that is in part engaged in interstate commerce for a customer cannot discriminate in intrastate commerce; that if it could it might do indirectly what it could not do directly, by-giving its customers an advantage in the intrastate business that would induce it to employ the same carrier for interstate business. We do not find such a position rests on any direct authority. It is -also claimed by appellant that the contract is void under the State law. We cannot hold that this is so. We are of the opinion that the trial court reached the right conclusion unless there was some error in the data as to how much interstate commerce there was, and how much intrastate commerce there was, but no suggestion is made that any such mistake occurred in the trial court.

The judgment is affirmed.

Affirmed.