text:
    William Trimble, Appellant, v. Louis Hunt, Appellee.
    1. Execution—when levy establishes lien. If a levy is made it is not necessary that the officer shall remove the property levied upon but it is sufficient if he assumes dominion over it with the express purpose of holding it under the writ.
    2. Sales—what void as against third persons. A sale of chattels where possession remains with the vendor is fraudulent per se and void as to creditors and subsequent purchasers. There is however an exception to the rule requiring actual delivery in a case where the property when sold is in the possession of the bailee or custodian of the vendor.
    Replevin. Appeal from the County Court of Wabash county; the Hon. John A. Lopf, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed April 12, 1912.
    George P. Ramsey, for appellant.
    E. B. Green and Theo. G. Risley, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

In an action in replevin for the recovery of a piano originating before a justice of the peace, the county court on appeal found the right of property in appellee, entered a judgment against appellant for a return of the property, and ordered a writ of retorno habendo.

Appellee was a constable and it was stipulated by the parties that the piano was levied upon by him by virtue of a writ of attachment, and that possession of the property was left with a Mrs.'Zimmerman to hold for appellee, the constable serving the writ, and that it continuously remained with her until demanded by appellant of appellee and until replevied by appellant, when it was still left with Mrs. Zimmerman for appellant.

It appears from the evidence the piano belonged to one Mrs. Nellie McCormick, and while she was the owner it was placed by her in the possession of Mr. and Mrs. Zimmerman as bailees, sometime prior to the levy of the attachment. The attachment writ ran against the owner, Mrs. McCormick, and when appellee levied it, the piano was not removed bnt was left where he found it in the house of the Zimmermans, and as recited in the stipulation it was left with Mrs. Zimmerman to hold for appellee. The officer did not leave the property in the possession of the attachment debtor but placed it in the custody of Mrs. Zimmerman to hold for him as custodian. The evidence shows the piano was before the levy in the possession of Mr. and Mrs. Zimmerman as bailees of the debtor, Mrs. McCormick. It is stipulated there was a levy made, and it was not necessary the officer should have removed the piano but it was sufficient he assumed dominion over it with the express purpose of holding it under the writ. Gaines v. Becker, 7th Brad. 315; Herman on Executions, Sec. 161.

Where the officer does not reduce the property to possession or exercise any control over it but simply sees it and leaves it where he found it, this is wholly insufficient to affect the rights of third persons. Havely v. Lowry, 30 Ill. 446. But if he takes it into his possession by placing a custodian over it this is notice to the world that the levy has been made and is sufficient. (Ibid.) “The officer may if he desires entrust the property levied upon to the keeping of a custodian without thereby abandoning the levy.” Am. & Eng. Ency. 2nd ed. Vol. 11, page 660; Smith v. Hughes, 24 Ill. 270.

Appellant conceded appellee had possession by virtue of his writ by making demand upon him for the property, and by this suit in replevin. The levy of the writ was valid and unless appellant as purchaser is entitled to the property as against the valid levy of the writ he could not recover.

Turning to the question of appellant’s claim to the property which he claims to have bought before the levy as against the right of appellee under the writ, the evidence shows that appellant never took actual possession of the property but it remained with the Zimmermans. The attachment writ was levied on February 3,1911. Appellant testified that early in December, 1910, he purchased the piano from Mrs. McCormick for $100. At that time the piano was at the home of the Zimmermans where it had been taken for Mrs. McCormick in June or July, 1910. He further states that after his purchase in December he saw Mrs. Zimmerman in town at a bakery and asked her if she had learned to play the piano and she said no; that he told her she could keep it until the first of the year and then he would let her know whether she could keep it longer or not and she said all right.

Assuming appellant purchased the piano from Mrs. McCormick as he claims, and that such sale was in good faith, still unless there was a delivery of the property to him, such sale was fraudulent as to creditors and passed no title as to them. Mrs. McCormick was the owner of the property and appellant could not acquire a title to it by purchase from her as against her creditors without a change of possession, either actual or constructive.

A sale of chattels where possession remains with the vendor is fraudulent per se and void as to creditors and subsequent purchasers. Thornton v. Davenport, 1 Scam. 296; Thompson v. Wilhite, 81 Ill. 356; Lefever v. Mires, ibid, 456; Johnson v. Holloway, 82 Ill. 334; Gillette v. Stoddart, 30 Ill. App. 231. “An absolute sale of personal property which is capable of removal but which is not removed from the possession of the vendor is fraudulent as against creditors and subsequent purchasers although made in good faith and for an adequate consideration.” Harts v. Jones, 21 Ill. App. 150; Wood v. Loomis, ibid, 604. And such sales without delivery are void even as to creditors with notice. Hewitt v. Griswold, 43 Ill. App. 43. There may be a constructive delivery of property not capable of removal such as very bulky articles, growing crops, a stock of goods in a building, and the like, but as the piano was not such property but was easily removable, it is unnecessary to consider that class of cases.

There is also an exception to the rule requiring actual delivery in a case where the property when sold is in the possession of a bailee or custodian of the vendor, and as we view this case this is the only question to determine.

In such case it has been held that where the property has been sold by the owner and the bailee notified of such sale and directed to hold it, for the purchaser this operates as a change in the possession, as by such notice the bailee becomes the keeper of the true owner by operation of law, and it is held such transfer of possession is valid against creditors. Hodges v. Hurd, 47 Ill. 363-365. It is further said in that case as a reason for the rule that the object of requiring a change in possession to accompany a sale of personal property is to give notice to the public and when property in the custody of the bailee is sold this object is accomplished by notifying the bailee of the sale, and directing him to hold for the purchaser. The fact of sale would be learned by inquiry from the bailee.

It is claimed by appellant that the conversation with Mrs. Zimmerman at the bakery above detailed, was notice to her that he was the owner. All there was of that conversation was as stated by appellant that he asked her if she had learned to play it, and he told her she could keep it until the first of the year and then he would let her know whether she could keep it longer or not, and she said all right. Mrs. Zimmerman says appellant told her in that conversation she could keep it until the first of the year and he would let her know what to do with it. Mrs. Zimmerman, the custodian, liad no other information concerning the matter of appellant’s claim of ownership than this. She was then the bailee of Mrs. McCormick and the evidence shows when the piano was taken to the house of Zimmerman appellant hauled it there for Mrs. McCormick. Mrs. Zimmerman testified he did not say he was the owner. She did not so understand it as she says he told her he would let her know what to do with it, and she shortly became the custodian of appellee when he made the levy. Appellant did not direct her to hold the piano for him, and as he had hauled the piano there for Mrs. McCormick, Mrs. Zimmerman would naturally suppose he was still acting for her. It is apparent appellant did not say enough to acquaint the custodian he was the owner, so the fact of sale could be learned by inquiry from her. She was not so advised by any information from appellant or from any quarter.

There was no notice to work a change of possession from the Zimmermans as bailee of Mrs. McCormick to appellant or to Mrs. Zimmerman as bailee for him. We are of opinion the property was subject to the attachment and the judgment of the County Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Shirley

license: Public Domain

text:
    Julius Schwartz, Appellee, v. Sandoval Zinc Company, Appellant.
    1. Pleading—effect of absence of replication. If a party goes to trial without a formal issue on a plea he cannot complain and an issue will be presumed as having been formed.
    2. Pleading—when defective declaration cured. If a declaration fail to aver a material fact essential to recovery if proof of such fact is actually made the declaration will be held good after verdict.
    Assumpsit. Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed April 12, 1912.
    Noleman & Smith, for appellant.
    Stein & Wulff and W. J. N. Moyers, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellee recovered a judgment in this cause for the sum of $881.38, as damages for an alleged breach of contract of employment.

The declaration charged that on November 30, 1907, the appellant entered into a contract with appellee whereby appellant agreed to employ him at a salary of $75 per month from November 30, 1907, to March 1, 1908, and for a period of five years thereafter at a salary of $1,000, together with fuel, water and rent as compensation for his services to be rendered to appellant. It was further alleged that appellant without reasonable cause refused to keep appellee in its employ but wrongfully discharged him, whereby he was damaged, etc.

A plea of the general issue was filed; also a second plea of the Statute of Frauds in which it was averred there was no contract in writing signed according to the statute, and also a plea of former recovery. There was no evidence to support the last plea. There was no replication to the second plea, and no issue thereon. Appellant might have had a rule on appellee to file a replication but not having done so and proceeding to trial without a formal issue on the plea he cannot now complain. Barnett v. Graff, 52 Ill. 170; Seavy v. Rogers, 69 id. 534.

Appellee offered in evidence the following written agreement:

“This is an agreement entered into between Julius Schwartz and The Sandoval Zinc Company. Party of the first part is to perforin his full duty in the brass department for the present, later on whatever the Company desires him to do, at a salary of $75.00 per month up to the first day of March, 1908, and from March, 1908, to March 1,1913, his salary to be $1,000 per year one-half to be paid 'monthly, and the balance of the money due him to be paid to him after the expiration of the contract; party of the second part will furnish him with free coal, light and rent during said term.

It is fully understood that party of the first part must perform his full duty and devote all his time to the welfare of the Company. This contract has been duly entered into this 30th day of November, 1907.

(Signed) Julius Schwartz.

Sandoval Zinc Company,

M. Weill, President.

Witness: I. L. Maas.”

Appellant objected to the introduction of the contract in evidence on the ground of a variance between the contract and the declaration. The objection was overruled and the contract admitted. This is said to have been error. It is argued there was no averment in the declaration showing a consideration for the contract. There is no direct averment that appellee agreed to serve in consideration of the employment, and in this regard the declaration was subject to challenge by demurrer. The defect was one of substance yet the issue joined by the plea of the general issue was such that proof of the fact omitted was necessarily required and without which it is not to be presumed the court would have rendered a verdict. In such case the omission is cured. Keegan v. Kinnare, 123 Ill. 280.

It is further argued there was no averment that appellee had performed on his part. The acts to be performed under the contract were mutual and appellee should have averred performance and his readiness to perform and that he was discharged from his performance. This defect, however, was cured after verdict under the same rule announced above. Chit. on Pl. Vol. 1, 327. The contract in evidence showed appellee’s salary was to be paid one-half monthly and the remainder at the expiration of his term of service and further showed he was to have “free coal, light and rent. ’ ’ The declaration did not aver how he was to be paid, and did aver he was to have “free fnel, water and rent.” There were variances between the averments and the proof in these instances but we think they were such defects and omissions as were cured by the verdict. The declaration did not state a defective cause of action, but stated a cause of action defectively.

Appellee went to work under the agreement and so continued until September 5, 1908, when his employment ceased. He claims he was discharged without cause. ■ He testified he worked under his contract as foreman of the brass department and worked seven days in the weekthat Mr. Weill, the president of appellant, came to Sandoval on September 5, 1908, and said to him the metal was low, and he couldn’t run the brass department and he would shut down; that he wanted the key and that he (appellee) gave it to him, and he closed it up; that afterwards Weill came to his house and told him he was sorry to discharge him but he couldn’t help it as metal was so low he could make no money out of it, and that next day he received a letter to move out of the building, off the plant. Appellee’s testimony that Weill asked for the keys and closed up the department because he could not afford to run it was corroborated by Jacob Weiss.

Weill testified appellee couldn’t get along with the other workmen at the plant; that he said he was tired of the job and couldn’t quit any too soon and that he (Weill) told him that the best thing he could do if he didn’t want to work was to close up the shop which he did. Weill further said he .didn’t have the conversations with him to which he testified. A witness Badkers testified to a number of circumstances showing that appellee frequently threatened to quit; that he had trouble with the other employes; that he was dissatisfied and after he ceased to work there, when asked what the trouble was he said “Nothing, I quit. I go away. I don’t want to stay any longer in Sandoval.”

In this state of the testimony it was a question for the trial judge who heard and saw the witnesses to determine whether appellee was discharged without sufficient cause.

Appellee has elected to sue for a breach of the contract and recover all his damages for the breach, or the wrongful discharge. The evidence showed that at the time of the bringing of this suit two years, after he claims to have been discharged he had been able to secure employment during that time for three months and had earned about $119. If he had been suing for his wages due he would have been entitled to recover $1,000 less what he had earned, and this was the basis no doubt upon which the court founded its judgment, as appellee offered no evidence of any other or future damages. As this judgment includes in this suit all damages that can be recovered under this contract, and as they are warranted by the evidence in the case, they are not excessive, and there can be no ground of complaint on that score.

We have examined the rulings of the court on the admissibility of evidence and find none excluded to which appellant was entitled. No propositions of law were presented and the judgment being supported by the evidence, it is affirmed.

Affirmed.


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    Nellie Bryan, Appellee, v. Brotherhood of American Yeomen, Appellant.
    Appeals and errors—when transcript strik'n. A transcript filed on review purporting to contain a bill of exceptions will be eliminated from the record upon a correct transcript being filed which by the certificate of the clerk shows that the bill of exceptions contained in the original transcript was never, in fact, filed.
    Assumpsit. Appeal from the City Court of Granite City; the Hon. James E. Dunnegan, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Thomas Stallings, for appellant; E. C. Corry, of counsel.
    M. R. and D. J. Sullivan, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Upon motion of appellee and over the objection of appellant, leave was given her to file in this court a corrected transcript of the record of the trial court. The motion for such leave was supported by the affidavit of the clerk of the trial court to the effect that the purported bill of exceptions attached to the record had never been filed in his office nor deposited as part of the files; that his certificate contained a correct statement if attached to the correct copy of the records and proceedings of said cause in his office, but that the said bill of exceptions included in the original transcript of the record filed in this court, was placed therein without his knowledge or consent, and that at the time he signed the certificate to the record it was not attached to the said purported bill of exceptions. The affidavit further states that after he certified to the transcript of the record which did not contain the bill of exceptions the latter without his knowledge or consent was placed in the transcript of the record and then filed in this court, and that the same is not a true and correct copy of the transcript of the record in said cause in the trial court. The affidavit did not impeach the certificate of the clerk attached to the original transcript, and the motion for. leave to file the corrected transcript was properly allowed.

The corrected transcript of the record filed in pursuance of such leave contains no bill of exceptions, and the certificate of the clerk thereto recites that no bill of exceptions was ever filed or deposited or left in his office for filing. No errors are assigned on the record proper, but only such as are based upon matters contained in the original transcript which is eliminated by the corrected transcript filed.

In this state of the record there is no question before this court for review and the judgment of the City Court of Granite City is affirmed. Jackson v. Bateman, 180 Ill. 359; Gillespie v. The People, 176 id. 238; Nester v. Carney Bros. Co., 98 Ill. App. 630; Chicago Tire and Spring Co. v. Grunow, 88 Ill. App. 360.

Affirmed.


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    Sarah Stephens, Appellee, v. I. N. Elkins, Executor, etc., Appellant.
    Instructions—when as to right to reject testimony erroneous. An instruction on this subject is erroneous which tells the jury that they have the right to believe all the testimony oí a witness or to believe it in part or they may reject it altogether if they find from a consideration of all the evidence that such evidence is untrue or unreliable.
    Assumpsit. Appeal from the Circuit Court of Johnson county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Spann & Spann, Cowan & Huffman and Mansfield, Cowan & Boulware, for appellant.
    O. R. Morgan, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellee in an action in assumpsit recovered a judgment against appellant as executor of the estate of Joshua Elkins, deceased, for the sum of nine hundred dollars.

Appellee’s claim was based on an alleged express contract with the testator to pay her one thousand dollars for services for taking care of him prior to his death, one hundred dollars of which she admitted had been paid. The testator for some time prior to his death was old, in feeble health, and required care and attention. He had no member of his family living with him. He had children but they were grown and living to themselves. Appellee was his granddaughter and was employed at St. Louis. On June 1, 1900, in response to a letter written by direction of the testator, she came to his home and nursed him until his death the following October. The evidence of a contract with the testator to pay appellee one thousand dollars for her services as claimed by her was in sharp conflict and as the case must be reversed and remanded for errors in law, we express no opinion as to the weight of the evidence.

The errors assigned question the ruling of the trial court upon the admissibility of evidence and the giving and refusing instructions.

A witness, Dolph Dunn, testified that prior to the testator’s death he heard a conversation between the testator and appellant, I. N. Elkins, in which the testator said to I. 1ST. Elkins that he, the testator, owed appellee thirteen hundred dollars or fourteen hundred dollars, that they had got all their property except her and that he wanted I. N. to see that she got her pay after he died. In rebuttal of this testimony I. N. Elkins testified that no such conversation occurred between the testator and himself. The court on motion of appellee excluded this testimony of Elkins to which there was exception. The witness was competent and the evidence excluded was competent and material. We think its exclusion was prejudicial to appellant. Complaint is made of the conduct of appellee’s counsel in repeatedly offering the evidence of appellee in denial of the testimony of witnesses who testified to conversations in her presence after the court had ruled her testimony was incompetent. The court’s ruling was right and the offers were improper and if it is seen the jury is influenced by such offers it would be reversible error.

A witness, Alice Elkins, testified that shortly before the death of the testator he said to her that he never had any agreement with appellee. It was not sufficiently shown that the statement was made in the hearing of appellee. Complaint is made that the court excluded this testimony. The ruling was right. The declaration of the testator was not against interest but was self-serving and was not admissible.

It is also complained the court erred in admitting the testimony of Caroline Chapman, E. M. McCall, Thos. Isom, Victoria White, Simeon White and Dolph Dunn. The testimony of all these witnesses was relevant, tended in some degree to prove the issue and the weight of it was for the jury.

We have examined the instructions and as a series we think they fairly state the law except the third instruction given for appellee. It tells the jury they have the right to believe all the testimony of a witness or believe it in part or they may reject it altogether if they find from a consideration of all the evidence that such evidence is untrue or unreliable.

We regard the instruction as wrong. The jury have no right to reject or disregard the entire testimony of a witness except where he has wilfully sworn falsely as to a material fact and is not corroborated by other credible evidence. Pollard v. The People, 69 Ill. 148. “It is the corrupt motive or the giving of false testimony knowing it to be false, that authorizes a jury to disregard the testimony of a witness and the court to so instruct them.” Overtoom v. C. & E. I. R. R. Co., 181 id. 323.

For the errors above pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.


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    W. S. Hale, Appellee, v. Thomas Hale et al., Appellants.
    1. Verdicts—when not disturbed as against the evidence. A verdict willl not be set aside as against the evidence unless clearly and manifestly so.
    2. Appeals and errors—what essential to preserve propriety of arguments of counsel. A party can only complain of such conduct when he has objected and obtained a ruling and excepted to it or excepted to a refusal of the court to rule.
    3. Appeals and errors—how arguments of counselt preserved. Objectionable arguments must be shown by a bill of exceptions and -not by ex parte affidavits on a motion for new trial.
    4. Evidence—when permitting additional cross-examination not improper. It is within the discretion of the court to permit a witness to be called for further cross-examination and the action of the court in that regard will not constitute error unless an abuse of discretion appears.
    5. Instructions—when failure to limit'cross-examination not error. The court may in its discretion give extended latitude to a cross-examination and in the absence of an abuse of discretion error will not result.

      6. -Instructions—when erroneous will not reverse. Erroneous instructions will not reverse unless harm has resulted therefrom.
    Assumpsit. Appeal from the County Court of Payette county; the Hon. J. H. Webb, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    F. M. Guinn, for appellants.
    Albert & Matheny, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

The County Court of Fayette county rendered a judgment on a verdict against appellants in a suit by appellee to recover commissions for the sale of a farm to one Clow and a small store account.

The alleged errors relied on for a reversal of the judgment are, first, that the verdict was contrary to the evidence. Appellee and appellant, Thomas Hale, were brothers. Mary Hale, the other appellant, was the wife of Thomas. Thomas and his wife owned a farm of one hundred and seventy-six acres not as tenants in common, but the former owned eighty acres of the farm and his wife ninety-six acres of it.

Appellee claimed they employed him as their agent to make a sale of the farm and agreed to pay him a commission of one dollar per acre, which appellants denied and claimed he agreed to do what he did without compensation. The farm was sold and conveyed to Clow.

The testimony of each is flatly denied by the other and each party is corroborated by members of their respective families and by other facts and circumstances. To undertake to set forth the testimony in detail would answer no good purpose and would unduly lengthen this opinion. The jury heard and saw the witnesses and after going over the testimony in the record we find the verdict is not so against the weight of the evidence both as to commissions and the store account as to justify this court in disturbing it on that ground.

Second: It is contended the arguments of counsel for appellee were improper and calculated to unduly prejudice and influence the jury. A party can only complain of such conduct when he has objected and obtained a ruling and excepted to it, or excepted to a refusal of the court to act. City of Salem v. Webster, 192 Ill. 369; Peterson v. Pusey, 237 id. 210. If such objectionable arguments are made, they must be shown by a proper recital in the bill of exceptions and not by ex parte affidavits on a motion for a new trial. Mayes v. The People, 106 Ill. 306; Snyder v. Wavers, 45 Ill. App. 254. In this case no 'objection to the argument, or exception thereto appears in the bill of exceptions, but the objectionable matter is sought to be presented by affidavit, and it is not before us for review.

Third: It is urged there was no evidence of joint liability of appellants, on the ground that one of the appellants owned eighty acres and the other ninety-six acres of the farm. The liability did not arise out of the ownership of the land but arose if at all, out of a joint contract to pay commissions for the sale of the whole farm. If they jointly employed appellee to sell the farm and agreed to pay him one dollar per acre commissions, they are both liable and the fact they were not tenants in common but owned each a portion of it in severalty, is immaterial. There was evidence to the effect that they both employed appellee to make the sale.

Fourth: It is insisted that the court improperly permitted a witness, Winnie Hale, introduced by appellant to be cross-examined about matters which had not been the subject of her examination in chief.

After the close of the evidence on both sides appellee asked permission to recall the witness for further cross-examination which the court in its discretion properly admitted. The witness, who was the daughter of appellants, had testified in chief that appellee came to their house before he went to see Clow about selling the farm, and her father talked to appellee about going, and he said he would go and not charge a cent if her father would furnish him a horse.

Without going into the details it appears the questions asked the witness were about a subsequent state.ment she should have made to Mrs. Hedrick in the presence of Sylvia Hale that she did not know what price was agreed to be paid appellee for selling the land. She denied making the statement to Mrs. Hedrick, and the latter and Sylvia Hale were called and testified she did make it.

If the witness, Winnie Hale, made the statement to Mrs. Hedrick, evidence of it tended to impeach and discredit her testimony that appellee said he would charge nothing for his services and it was competent evidence after laying the foundation. In this connection it is complained that the witnesses called to impeach Winnie Hale testified that appellant, Mary Hale, said in the same conversation that there was money enough to pay appellee and she didn’t see why it'was not paid. Mary Hale being a party to the suit, the evidence was competent against her as a declaration by a party, and appellants had the right to meet it if they had offered to do so, even if the evidence had been concluded. The court in its discretion may permit the introduction of evidence out of the regular order, giving the other party the right to introduce evidence to meet it.

Fifth: It is lastly contended that three instructions given for appellee did not require the jury to found their belief upon the evidence. The instructions are faulty in this regard hut we think the jury could not have been misled to go outside of the evidence. Other instructions told the jury appellee must prove his case by a preponderance of the evidence; that the burden of proof was upon him, and that the issue between the parties could only be proved in law by a preponderance of the evidence, and if appellee had failed to prove a just claim against appellants by a preponderance of the evidence the jury should find for the appellants.

We think the omission in the instructions complained of was harmless. Heffernan v. Bail, 109 Ill. App. 231. “The instructions must be taken as a series and where there are other instructions in the series that fully cover the error complained of it is cured.” Hampton v. Lackens, 72 Ill. App. 442; Village of Mansfield v. Moore, 124 Ill. 133; Spies v. The People, 122 id. 1.

Perceiving no error in the case warranting a reversal of the judgment, it is affirmed.

Affirmed.


text:
    Arthur Staudt, Appellee, v. Murphysboro Electric Railway, Light, Heat & Power Company, Appellant.

      Damages—how determined in action for injury to reversionary interest. In an action by the owner of the fee to real estate to recover damages for injury thereto the amount of damages suffered by the owner of the life estate should be eliminated.
    Appeal from the Circuit Court of Jackson county; the Hon. W. E. Ellis, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    R. J. McElvain and Otis P. Glenn, for appellant.
    George W. Andrews and Charles E. Feirich, for appellee.
   Mr. Justice Shirley

delivered the opinion of the ■ court.

Appellee recovered a judgment of four hundred dollars damages alleged to have resulted to his property from the excavation of a street.

It was charged in the declaration that appellant wrongfully and negligently cut down and excavated Walnut Street in the city of Murphysboro, in front of the property of appellee, and constructed an iron fence along the sidewalk to the damage 'of appellee.

It appeared from the evidence on the trial that the premises of appellant described as lot one and the east half of lot two in block four, Logan’s Second Addition to the city of Murphysboro, fronted on Walnut street, and that appellee excavated the street along there to a depth of from three to ten feet, walled the sides with concrete and constructed within the excavation a street railroad track. Prior to the work of excavation the street was accessible to the premises of appellee to drive to and from the house but not so afterwards.

. The evidence of witnesses introduced by appellee of the damages resulting to the property in depriving it of its accessibility to the street, varied from eight hundred dollars to two thousand dollars, while a number of witnesses testified on behalf of appellant that there was no depreciation in value caused by the excavation. The jury by agreement viewed the premises and after hearing the evidence returned a verdict in favor of appellee and assessed the damages at the suin of four hundred dollars upon which judgment was entered.

It is contended here that the trial court erred in ruling upon the admissibility of evidence, and in refusing to instruct the jury that the recovery of appellee should be limited to the damages resulting to his interest in the property. It appeared from the evidence that appellee’s father was the owner in fee of the premises and that he died in 1909 leaving appellee his only heir at law and also leaving a widow. The widow and appellee- occupied the property as a homestead at the time of the father’s death and so continued to occupy it. This evidence was sufficient in the absence of evidence to the contrary to show that the father died intestate, that the widow had a life estate in the property of homestead and dower, and that appellee was by inheritance the owner in fee subject to the life estate of the widow.

Appellee asked a witness what damage the construction of the cut would have on the value of the property. Appellant objected on the ground the widow had an estate of dower and homestead and the amount of damages to appellee should be confined to his interest in the property. The court overruled the objection and the witness answered the property was damaged one half, two thousand dollars. The court also refused to instruct the jury on behalf of appellant that the jury could not return a verdict for the full amount of depreciation in market value but only for the depreciation of his interest in the premises. If damages resulted to the premises from the excavation in the street the life estate of the widow was affected as well as the interest of appellee but in different degree. “ A life interest or a term of years may be carved out of the fee. In such case the tenant for life or lessee as well as the remainderman or lessor is entitled to compensation for that interest. Every person having any interest partial or temporary or permanent and absolute is entitled to damages proportioned to the injury to that interest. The division of ownership, however, cannot operate to subject the condemning party to payment of greater damages than if one person had a complete and perfect title.” Suth. on Dam. Vol. 3, p. 447. This is the rule in taking property for public use and is the rule here.

In estimating damages to appellee’s reversionary interest, the life estate of the widow should have been considered in determining what proportion of the damages to the whole estate was suffered by the widow and what proportion by appellee. The court erred in overruling the objection to the evidence referred to and in refusing appellant’s instruction. The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Montpelier Cup & Metal Works, Appellant, v. J. E. Dilsaver et al., Appellees.
    Receiver ship—right of receiver to appeal. A receiver is not entitled to appeal from an order which merely discharges him. If, however, the order in question fails to protect him with respect to disbursements made by him which are properly chargeable upon the property he has the right to obtain a review of such order.
    Mechanic’s lien. Appeal from the Circuit Court of Perry county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1911.
    Modified and affirmed.
    Opinion filed March 21, 1912.
    B. W. Pope and W. O. Edwards, for appellant.
    Sprigg & Gilster and A. R. Dry, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

At the May term of the Perry County Circuit Court appellant filed a bill for a mechanic’s lien against J. E. and Margaret Dilsaver, owners of the premises against which the lien was claimed, also making certain mortgagees of the premises parties defendant. A decree was entered directing a sale of the premises in default of payment of the amount found by the decree to be due, and Samuel R. Haines was appointed receiver to manage and operate a flour mill located on the premises, until the property should he redeemed, or until the further order of the court.

The property was sold under the decree on September 24,1910. On July 25,1911, appellee J. E. Dilsaver, filed a sworn petition alleging there was no need for a receiver and praying for his removal. To this petition the receiver filed his sworn answer and the cause was heard upon the petition and answer. The court granted the prayer of the petition and entered an order discharging the receiver and ordering him to let the petitioner Dilsaver into possession of the premises. The court further decreed that the report of the receiver be reserved for the future consideration of the court. From this order the receiver, Samuel E. Haines, prayed and perfected an appeal.

A motion has been made in this court to dismiss the appeal which-has been taken with the case for disposition.

It appears from the averments of the petition and answer that at the sale of the property it was sold to the complainants in the original bill for the debt, interest and costs found to be due under the decree, from which sale the petitioner Dilsaver would be entitled to redeem. It further appears that after the receiver was appointed he took possession of a flour mill located on the premises and managed, controlled and operated it until his discharge and that during the period of his receivership he expended considerable sums in the way of repairs and improvements which he claims were necessary in its operation and which he claims he was under the decree appointing him authorized to expend and that he is entitled to be repaid. It further appears from the answer that Dilsaver is insolvent with no means to redeem from the sale and that the entire value of the mill and the premises does not exceed the sum due under the decree together with the sums expended for repairs and improvements. The receiver asks for a reversal of the order discharging him and ordering him to put Dilsaver in possession, so that he may continue to operate the mill and repay himself for the amount due bim for said expenditures and, in addition, for his compensation as receiver.

On the motion of Dilsaver to dismiss the appeal, it is contended by appellees it is not a final order from which the receiver can prosecute an appeal. The order was not a final order in so far as it settled his right to be repaid any sums which might be due him for repairs, improvements and compensation. The order discharging him reserves all such questions for the future consideration of the court and was not final, as it did not settle his accounts and no appeal would lie from that portion of the order. Nor could the receiver appeal from an order of the court discharging him as receiver.

Being merely an officer of the court without any right or interest in the litigation, the court had the right to discharge him at any time and he could not appeal from the order. High on Receivers, 3rd Ed. 836. Such an order is interlocutory and there can be no appeal from it. Farson et al. v. Gorham, 117 Ill. 137; Chicago Steel Works v. Ill. Steel Co., 153 id. 9; French, Receiver, v. Genoa Junction Ice Co., 82 Ill. App. page 318. We are of opinion, however, that the failure of the court to make any provision in its order for the protection of the receiver for the payment out of the property of any amount found due him, properly chargeable against the property, gave him the right to appeal. It may be the property will become chargeable with the compensation of the receiver and for his proper expenditures, and for his protection the court should by its order have kept it under control or should have declared a lien upon it for that purpose.

“When it becomes the duty of a court of equity to take property under its own charge through a receiver, the property becomes chargeable with the necessary expenses incurred in taking care of and saving it, including the allowance to the receiver for his services. He is the officer and agent of the court and not of the parties, and it is a right of the court essential to its own efficiency in the protection of things, so situated to keep them under its control until such allowances are paid or secured to be paid.” Knickerbocker v. McKindley Coal Co., 172 Ill. 535. To the same effect is High on Receivers, sec. 796.

The motion to dismiss the appeal is denied. Aside from the want of appellant’s right to appeal from the order discharging him as receiver, we are of opinion there was no further need of a receiver and the order of discharge was right, but the order was erroneous in not declaring a lien upon the property to secure the receiver. The decree is therefore modified and affirmed so as to give Samuel R. Haines, receiver, a lien upon the property described in the decree to secure him in his proper charges and compensation as receiver which he may hereafter be found entitled to receive. In all other respects the decree is affirmed.

Decree modified and affirmed.


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    Lewis E. Stevens et al., Appellees, v. W. E. Morenous et al., Appellants.
    1. Nuisances—what not. Theatres conducted, properly and so located as not seriously to annoy the neighborhood are not nuisances ' per se at common law, and only become nuisances when they are used for the exhibition of immoral and vicious plays or when they call together disorderly and vicious people.
    2. Injunctions—when restraining theatrical performance on Sunday erroneous. Held, under the evidence, that it did not appear that the proposed play was improper or immoral and that the restraining of its production upon the Sabbath day was not justified either upon the ground that it was a nuisance or that it would disturb the public peace.

      Bill in equity. Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed March 21, 1912.
    Parker & Crowley and Parker & Eagleton, for appellants.
    M. E. Cox, George W. Jones, Bradbury & Gaines and J. A. MacHatton, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellees, citizens and property owners residing in the city of Robinson, filed their bill in equity for an injunction against appellants in which it was charged that the Opera House was located in a populous portion of said city, and was used for public shows and entertainments; that it was under the control of appellant Morenous who had engaged with appellants Powell & Cohan Stock Company that the latter give, and that they intended to give a public show on the stage of said Opera House on the forthcoming Sunday, January 29; that said show was of a comic, frivolous and unsavory character, unfit for public exhibition on a Sunday; that it would disturb the peace and good order of society, was unfit to be seen or listened to by young men and women, and would debauch the public morals. The bill prayed a writ of injunction restraining appellants from exhibiting the said show, or any other show or amusement which would disturb or tend to disturb, the peace and good order of society in said city.

A temporary writ of injunction was issued as prayed after which there was an amendment to the bill in which it was further charged that such exhibition would be a public and private nuisance, and would deprecíate the value of the property of appellees and other citizens of said city. Answers being filed denying the material averments of the bill, the cause was heard by the chancellor upon the testimony of witnesses examined before him.

The court found the equities with appellees and found that if the show had been given on Sunday, January 29, it would have been a nuisance; would have caused great financial damage to complainants, and would have greatly depreciated the value of property in said city. The decree perpetually enjoined appellants from exhibiting said show on any Sunday within said city, or any other show or performance, on any Sunday in said city, which would create a nuisance or depreciate the value of complainants’ property.

In turning to the transcript of the testimony contained in the record for evidence of the threatened nuisance it was alleged would result from the acts of appellants, we find that the city of Robinson was a progressive growing city in the oil regions, and contained about six thousand inhabitants; that it had an Opera House where exhibitions and shows were given for the amusement and diversion of such of the public as wished to patronize them; that appellant Morenous, who was the manager of the Opera House, gave out by advertisements that he would present to the public on Sunday evening January 29th, at the Opera House, a performance called “Yankee Doodle Boy” charged in the bill as being a frivolous and immoral show which would disturb the peace and good order of society and would debauch the public morals.

From the testimony of appellees’ witnesses we are unable to find out anything whatever about the proposed performance, none of them ever having seen it. From the witnesses introduced by appellants, it appears the show had singing, dancing and chorus, singing of the latest popular songs, and described the dresses of the females of the troupe as coming below the knees, the limbs being exposed to some extent above the ankles. All the witnesses who had seen the performance testified there was nothing obscene, vulgar or immoral about it. Theatres conducted properly and so located as not to seriously annoy the neighborhood are not nuisances per se at common law, and only become nuisances when they are used for the exhibition of immoral and vicious plays or when they call together disorderly and vicious people. Wood on Nuisances, Par. 52. There was no evidence in the case tending to show the play itself was of the character that could be termed a nuisance.

It is the contention of appellees that such performance on the Sabbath day if it depreciates the value of property in the city is a nuisance which a court of equity has power to restrain.

Secular amusements on the Sabbath day are not in themselves unlawful except the good order and peace of society are disturbed thereby. Hurd’s Stat. Chap. 58, sec. 261; Eden v. The People, 161 Ill. 296.

Whether the peace and good order of society would have been disturbed by the intended performance of the “Yankee Doodle Boy” on Sunday evening is left in uncertainty as there was no performance.

If it can be said that the gathering of persons about the office and the sale of tickets on Sunday was a part of and connected with the show, there is some evidence of a gathering of persons there and that some of the witnesses regarded it as unseemly, and a desecration of the Sabbath day.

There was no gathering of noisy crowds; no disorder ; no disturbance of the peace, and the only effect was that it was not agreeable to some of those who passed, and who disliked any secular amusements or occupations on the Sabbath day. This we think was not sufficient to show that the peace and good order of society were disturbed, nor is the evidence sufficient to show that if the Sunday evening performance had taken place it would have been of such nature as to violate the statute.

Any sort of secular occupations and amusements on Sunday are offensive to many people who believe in “remembering the Sabbath day,” and many people without religious scruples abstain from them out of respect for the feelings of those who object to them, but there are many others who devote the day to amusements and diversions. The law does not undertake to regulate them in this regard, but permits them the widest liberty in seeking their amusements and enjoying them, so long as they do not violate the law or offend against the peace and good order of society. We are of opinion the evidence was not sufficient to show that there was or would have been any violation of the statute.

Even if the evidence showed that the performance would be vicious and immoral or that there would be a violation of the statute the evidence in this record fails to show there would be any injury to property rights. If the mere speculative opinions of witnesses that property would be depreciated are of any value, the manifest weight of the evidence is there would be none. There was no evidence that any one left the city or would leave it on account of such a show on Sunday. There was no fact stated upon which to base any opinion that the price of property would be thereby depreciated.

It is a fundamental principle that the subject-matter of the jurisdiction of equity is the protection of private property and civil rights. Its courts will not punish or prevent criminal or immoral acts if they do not violate private rights, nor will they restrain the commission of crimes or enforce moral obligations or duties in the absence of injury to property rights. In all such cases there is an ample remedy at law and courts of equity will not interfere. High on Injunctions, Par. 20; Cope v. Dist. Fair Assn., 99 Ill. 489; Harding v. Am. Glucose Co., 182 id. 551.

We are of opinion the evidence in the case furnished no ground for relief in a court of equity and the decree of the Circuit Court will be reversed and remanded with directions to dismiss the bill and dissolve the injunction.

Reversed and remanded with directions.


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    The People of the State of Illinois, Appellees, v. James W. Templeman et al., Appellants.
    1. Bonds—burden of proof to show fraud by public official. If it is alleged that a public official has by fraud obtained money which he has not earned the burden to establish such fraud is upon the plaintiff.
    2. Evidence—when rule that plaintiff not required to prove negative allegation does not apply. While the rule is that the plaintiff is not required to prove a negative allegation where the knowledge of it lies peculiarly within the knowledge of the other party yet such rule does not apply where the allegation is that the public official obtained money by making a representation that he had rendered services where he had not in fact done so.
    Action of debt. Appeal from the Circuit Court of Wayne county; the Hon. William H. Green, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    D. G. Thompson, for appellants.
    B. E. Thomas and H. S. Burgess, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

This was an action of debt against appellant Temple-man and the sureties on his official bond executed by him as superintendent of schools in Wayne county to which office he was elected and qualified in November, 1902. He served until the expiration of his term in December, 1906.

The breach alleged in the declaration was that Templeman did not faithfully discharge the duties of his office according to law, but that he made false reports to the county board to the number of 622 days he spent in visiting schools, and thereby induced the board to audit fraudulent bills in his favor for that amount for expenses, which the county clerk certified to the auditor of public accounts for payment, and that the auditor issued his warrants to Templeman in the sum of $622, all of which were fraudulent, and that said Templeman had not visited the schools any of the 622 days for which he was paid. Several pleas were filed among which were pleas of performance and non damnificatus. The cause was tried by a jury and resulted in a verdict and judgment against appellants for the sum of $622 damages, from which this appeal is prosecuted.

On the part of appellee the evidence disclosed that during his term requisitions were made by Templeman from time to time upon the auditor of public accounts for divers sums for expenses claimed by Templeman to have been earned by him in visiting schools, amounting in the aggregate to the sum of $642. These requisitions were approved by the county board of supervisors and warrants were issued by the auditor to Templeman and he received the money.

It was and is claimed by appellee in support of the breach alleged in the declaration, that Templeman during his term visited the schools but 20 days; and that $622 of the moneys received by him were not earned but were obtained by him by false and fraudulent reports to the county board upon which the claims were audited by the board and certified by the county clerk.

Templeman was sworn and testified that a book shown him was one of the books kept by him for school visitation in Wayne county; that the book was a memorandum of his visits to the schools; that he kept other memorandum books of the kind until he made his annual reports to the county board, and after they were passed on by the board they were destroyed because of some personal things contained in them about teachers; that the book shown him was only one of the books in which he made memoranda and did not contain all the visits he made. This book shows twenty visits and is the only book or memoranda of Templeman showing visits appearing in the evidence; none other having been found by his successor. When asked by his successor in office for the record which would correspond with his reports of visits, Templeman said the one memorandum book above mentioned was the only one he had. It appears from the testimony of members of the county board that Templeman made quarterly reports of the number of visits without specifying the particular schools which were sworn to by him, approved by the claims committee, and allowed by the board, and at one time he was requested to go before the board to make a statement concerning the number of days he had visited schools which he did, but presented no book containing an account of his visits and his report was partially approved.

It is apparent the county board was satisfied with his reports to the extent they were approved and allowed.

Appellee introduced the memorandum book of Templeman which shows a number of visits of particular schools, during his term, and there is undisputed evidence that he visited enough other schools to credit him with at least fifty or sixty days of visits including the number shown by the book introduced by appellees.

Templeman did not make such reports to the board as the law required but this circumstance is not of itself sufficient to show his reports were false. It was his duty to make such reports and the board should have required them, but this of itself is not sufficient proof the reports he did make and which were allowed were false and fraudulent. Neither is the additional fact that he kept no book of his visits in the nature of a record, as the law did not require him to keep such book. In this action where fraud is charged the burden is upon appellee to prove that averment. The law does not in this case require of appellants that they prove visits charged by Temple-man, but the burden is cast upon appellee to prove the breach alleged that he did not make the visits.

It is the rule that in suits upon official bonds if it .is shown that public moneys have come to the hands of the principal which he has not accounted for or turned over to his successor, the burden of showing why he has not accounted for it or turned it over is upon the principal and sureties on the bond. Estate of Ramsey v. The People, 97 Ill. App. 283. It is the rule also that the plaintiff is not required to prove a negative allegation where the knowledge of it lies peculiarly within the knówledge of the other party but the burden of proof is in such case upon the defendant. We are of opinion this rule of evidence does not apply here and that the burden is upon appellee to prove the fraud charged in the declaration. Greenleaf on Ev., Vol. 1, 9th ed., Sec. 80.

The evidence fails to show how many of such visits he failed to make but does show affirmatively as far as it goes that he was so employed more than twenty days which the verdict allowed him out of a total of six hundred and forty-two.

The evidence shows there were one hundred and sixty schools with one hundred and ninety-five teachers in the county, less than one-third of whom testified concerning Templeman’s visits. As to how many days he was employed, if any, in visiting’ the other schools the evidence is silent. The evidence also shows it was possible for him to have made the visits for which he charged during his term. For such as he made he would be entitled to pay at the rate of one dollar per day. If he has been paid more, either through fraud or mistake, the appellee has the right to recover it back, but the evidence in this record does not support the verdict and judgment, and the court erred in not allowing appellants’ motion for a new trial.

It is not necessary to consider the other errors assigned.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Ferdinand Grannemann, Plaintiff in Error, v. Louis Meyer et al., Defendants in Error.
    1. Evidence—when of revocation incompetent. A letter containing an alleged revocation of a license is not competent unless relied upon in the pleadings.
    2. Appeals and errors—xohen admission of erroneous evidence waived by instructions. If a letter be improperly admitted because not relied upon in the pleadings such error is waived by the asking of an instruction which treated the pleadings as sufficient to raise the issue.
    3. Statute op Frauds—when license within. Held, that a parol license authorizing the erection of a telephone pole was within the Statute of Frauds and was revocable at the will of the licensor.
    4. Instructions'—submitting questions of law. An instruction which leaves to the jury the determination as to what are material allegations is erroneous.
    5. Instructions—ignoring issues. An instruction directing a verdict must not ignore a material element in evidence but must contain all the elements authorizing the verdict.

      Trespass. Error to the Circuit Court of Randolph county; the Hon. L. Bernreuter, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Sprigg & Gilster, for plaintiff in error.
    A. E. Crisler and A. G. Gordon, for defendant in error.
   Mr. Justice Shirley

delivered the opinion of the court.

This was an action of trespass to real property brought by plaintiff in error, Crannemann, hereinafter called the plaintiff, against the defendants* in error, hereinafter called the defendants. The verdict and judgment were in favor of defendants.

The declaration charged the defendants with wrongfully breaking and entering the lands of plaintiff and with digging holes therein, erecting telephone poles and stringing wires thereon without the permission of plaintiff. There was a plea of the general issue and a special plea that defendants entered the premises by the leave and license of plaintiff.

It appeared plaintiff was the owner of the fee of a tract of land over which there was located á highway. Defendants dug holes along the north side of the highway and placed poles therein upon which they strung wires to use as an extension of a telephone system owned by them. There is some conflict in the evidence whether the holes were dug and poles set by the permission of the plaintiff.

About four months after the telephone line was erected and before this suit was brought, plaintiff’s attorneys sent a letter to one of the defendants in which he was advised the defendants had erected and were maintaining two sets of telephone lines in the road without plaintiff’s consent or authority, and he proposed that if they would remove the line on the north side of the road he would let the other one stand, if not he, plaintiff, proposed to take action under the law to have his rights adjusted. This letter was brought before a meeting of the owners of the line but no action was ever taken by them. This letter was offered to show a revocation by plaintiff of the parol license set up in the special plea. Defendants objected on the ground it was not admissible under the pleadings. The court overruled the objections and admitted the letter in evidence. The ruling was wrong. No replication setting up a revocation was filed to the special plea and the court should have sustained the objection. The defendants, however, having asked an instruction upon a revocation and thus treated the issue as properly formed, cannot now complain that the question was not in issue and that the letter was not properly admitted in evidence. Kinney v. Bauer, 6 Ill. App. 267.

Assuming defendants had a parol license to place the line in the road the letter was in our judgment sufficient evidence of an express revocation of the license by notice. If there was a license it was by parol and was indefinite and uncertain.

Such license is within the Statute of Frauds, cannot be granted by parol, and is void and revocable at the will of the licensor. Ragain v. Stout, 182 Ill. 645; Streator Independent T. Co. v. Interstate T. Co., 142 Ill. App. 183. Even if the defendants’ entry was at first lawful, remaining in possession after revocation makes them trespassers. Ragain v. Stout, supra; Erstwhile v. Henke, 211 Ill. 273.

The first instruction given for defendants was erroneous. It told the jury the plaintiff must prove the material allegations of his declaration, without advisr ing the jury in any instruction what the material allegations were, submitting to them a question of law. Such instruction without such advice has been often condemned. The third, fourth and fifth instructions were all erroneous. They direct a verdict ignoring the material question of the revocation of the license.

An instruction directing a verdict must not ignore a material element in evidence but must contain all the elements authorizing the verdict. Partridge v. Cutler, 168 Ill. 504. That there were other instructions on the question of a revocation does not cure the error in these instructions. Ill. Linen Co. v. Hough, 91 Ill. 63.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Anna Morton, Appellee, v. Fora Robinson, Adm’r etc., Appellant.
    1. Contracts—when services presumed gratuitous. Services rendered by one relative to another are in the first instance presumed to have been gratuitous.
    2. Negotiable instruments—when purported consideration overcome. A consideration which a note purports is overcome by showing that the services rendered by the payee who was a relative of the maker were such that there could be no liability in the absence of an express or implied promise to pay therefor, and upon such a showing the burden of proof shifts to show that there was a liability independently of the note.
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed April 12, 1912.
    Kagy & Vandervort and Albert & Matheny, for appellant.
    Noleman & Smith and Charles H. Holt, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

The Circuit Court of Marion county oh appeal from the Probate Court, allowed a claim in favor of appellee against the estate of J. S. Morton, deceased, for the sum of $12,854.32, and rendered a judgment that the same be paid as a claim of the seventh class. The administrator has appealed to this court. The claim was allowed on a note which reads as follows:

“$10,000.00 Vernon, Illinois, Jan. 3, 1907.

One year after date, we, or either of ns, promise to pay tó the order of Ansa Morton, Ten Thousand.... ......1-00 Dollars for value received, with interest at the rate of seven per cent, per annum, payable annually from date.

In case default is made in the payment of this note, or the interest thereon, according to tenor and effect thereof, the whole amount shall become due, and if suit is brought on this note, then an attorney’s fee of ten dollars, when said payment is one hundred dollars or less, or of ten per cent, on the whole of said amount, when the said amount exceeds one hundred dollars shall be taxed as a part of the costs in the court where said suit may be brought.

Signed J. S. Morton. (L. S.)

This, I consider is her part for the help she has given me during twenty years of assistance.

J. S. Morton.”

The maker of the note, J. S. Morton, died May 18, 1910, and appellant qualified as the administrator of his estate. The main contention of appellant is that the finding and judgment was contrary to the law and the evidence, and also that the court erred in including an attorney’s fee of $1,239.

The execution of the note by the deceased is not disputed, but it is insisted the evidence in the case shows that the note was executed without any consideration to support it; that it was a gift and to be paid after the death of the maker, and was intended as a testamentary gift and not enforcible. If there was any consideration for the note, it was for services.

There was no conflict in the evidence. Anna Morton, the payee in the note, was the sister of the intestate, J. S. Morton. At the time of the date of the note Anna was about thirty-four years of age. The age of J. S. does not appear but he was a bachelor until December, 1907, when he married, and at the time of his death in May, 1910, left his widow surviving him. He was a physician and had been practicing medicine a number of years. The father of Anna and J. S. was also a physician and lived at Vernon many years. He died there in 1906. His first wife, the mother of Anna and J. S., died many years ago and the father remarried in 1877 and had by his second wife two children, one of whom, a daughter Daisy, still survives. The second wife separate^ and went away from the father in 1901, and she and the daughter afterwards lived away. There were two other children by the first wife: Lyda, who married one Binnion and left the family home in 1891, and Bryant who left soon after. During all their lives and up to the execution of the note, Anna and J. S. lived in the family home of the father in no different relation from the ordinary family living together, the father, stepmother, stepsister, Anna and J. S. living as members of one. family usually live, each doing his or her part in the family relation. For a number of years before his death, the father was afflicted with rheumatism and chronic diarrhea and the stepmother while she lived there and Anna cared for, and waited upon him. After his death Anna and J. S. were the remnant of the family, and they continued in the same relation to reside there. Anna looked after and cared for the household and answered the telephone calls for J. S., looked after his office, and no doubt was greatly interested in him and in his professional labors. She did all she could to promote his welfare and happiness, and the evidence shows that J. S. was appreciative of her kindness, and sincerely attached to her. Anna did not live there at any time in any capacity except that of a kind and affectionate daughter and sister in the family in which she did her part well. No inference can he drawn from the testimony of this family relationship alone, that tends to show any contract either expressed or implied between Anna and her brother to pay Anna for services. The presumption of law arising out of such relationship is that the services are gratuitous and rendered because of the relation. Scully v. Scully, 28 Iowa, 548; Ayres v. Hull, 5 Kan. 251; Sherman v. Whiteside, 190 Ill. 576; Chapman v. Chapman, 87 Ill. App. 427.

In this case the note itself imports or presumes a consideration and the burden of proof was cast on appellant to overcome this presumption. This was done when it was shown the consideration if any was for alleged services, and that the relationship was such that there could be no liability for such services in the absence of an express or implied agreement to pay for them. This showing was sufficient to meet the prima facie case made by the note, and to entitle appellant to judgment if no more evidence had been heard, and the burden shifted to appellee to prove there was such agreement to pay for services.

“The question as to the onus of proof is only a rule for deciding on whom the obligation rests of going further if he wishes to win.” Jones on Ev., par. 174; see also Am. & Eng. Ency. of Law, 2nd ed., vol. 5, p. 22, entitled “Burden of Proof.”

There was no evidence of any express agreement to pay appellee for services, and it was incumbent on her to prove facts from which an inference of such an agreement arose, and such facts must be sufficient to justify the conclusion that the parties were dealing on the footing of a contract, and that both parties expected the services to he paid for. Sherman v. Whiteside, supra; Switzer v. Kee, 146 Ill. 577. We have already said no promise could be implied in this case from the relationship. The relation of the parties excludes the inference they were dealing with each other on the footing of contract, and in such case the evidence must show that when the services were rendered both parties expected them to be paid for. Byers, Jr. v. Thompson, 66 Ill. 421; Heffron v. Brown, 155 id. 322. “The implied contract may be proven by facts and circumstances which show that both parties at the time the services were performed contemplated or intended pecuniary recompense other than such as naturally arises out of the relation.” Neish v. Gannon, 198 Ill. 219; Sherman v. Whiteside, supra.

It is earnestly contended by appellee that an express contract is established by the note, and that the evidence overcomes the presumption that the services of appellee were rendered gratuitously, and show an implied contract entitling her to recompense even without the note. As already said there is no evidence of an express contract and we think the recital in the note tends rather to show there was not, and it remains to determine whether all the facts show that at the time the services were rendered both parties contemplated or intended they should be paid for.

The note itself is for a very large sum and out of all proportion to the value of appellee’s services. At the time it was given it represented in amount a. greater part of all her brother’s property. The amount of the note being in round numbers ten thousand dollars and so out of proportion to the services, it is a strong circumstance the parties were not dealing, and had not dealt on the footing of a contract. We think the other circumstances in evidence in addition to this, not only do not establish that at the time the services were rendered both parties expected them to be paid for, but that they tend strongly to show the contrary, and that the execution and delivery of the note was a voluntary gift without any such expectation, and intended to operate as a testamentary disposition and cannot be enforced. Blanchard v. Williamson, 70 Ill. 647. The note was made about a year before the brother’s marriage and so far as'the evidence shows before he anticipated that event. He expressed himself as having no confidence in disposing of property by devise, and talked of the ease with which wills were broken, and set at naught, and that he wanted to take care of Anna, and dispose of his property in a way that it would pass in law, and that he thought a note and mortgage would be a better way than a will. He expressed hostility to some of his relatives who would inherit from him, and that he expected to fix things so that when he died they would not get a dollar of his estate. On Monday before his death when told he should do something for Anna he said he had done that long ago. Anna was his favorite, he wanted to provide for her as he had told his •father he would when his father asked bim to provide for her during his life and after his death. The recital in the note is that it is given as “her part” for her help and assistance. In connection with this recital the evidence shows that the note was secretly kept until the brother’s marriage when Anna gave it to her sister where it was secretly kept until his death. No interest was* ever paid or any part of the principal though long past due. Anna herself said of it after her brother’s death that she looked upon the note as a token of her brother’s appreciation of her more than anything else. We think the recital in the note is a strong circumstance that in view of all she had done for him that the note was her part of his estate, and in view of all the evidence which we have carefully considered we can reach no other conclusion than that when the services were rendered the parties did not expect them to be paid for; that Anna had no legal claim against her brother for services, and that the note was a mere gift without a legal consideration to support it. We have also considered the authorities cited by counsel for appellee, but we are of opinion the authorities cited in this opinion are in harmony with the conclusions reached by us.

The finding of the Circuit Court was against the evidence and the judgment is reversed and the cause remanded with directions to enter an order disallowing appellee’s claim and to certify the cause and order' back to the Probate Court with like directions.

It is not necessary to pass upon the error assigned upon the allowance of attorney’s fees.

Reversed and remanded with directions.


text:
    William Hudleson, Appellant, v. George W. Boston, Appellee.

      Partnership—when does not exist as to third persons. Persons are not liable as partners to third persons unless they are in fact partners inter se or have held themselves out as partners under such circumstances as to estop them from denying that they were partners.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Clemens, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed March 21, 1912.
    Pillow, Smith & Stone, for appellant.
    Neely, Gallimore, Cook & Potter, for appellee.
   Mr. Justice Shirley

delivered the opinion- of the court.

This cause was tried in the Circuit Court on an appeal from a justice, and resulted in a verdict and judgment for appellee who was the plaintiff below. The main question in.the case arises upon the claim of appellee that appellant is liable as a co-partner for the alleged negligent act of one Powell, and if there was no such relation between them as to third parties it will not be necessary to pass upon other questions raised by appellant in his assignment of errors. The evidence upon this question shows the following undisputed state of facts. Appellant was the owner of an automobile. About a month prior to the day of the accident out of which this suit arose, appellant let Powell take the machine to run and use exclusively during the season, upon the further agreement that Powell pay him one-half he made out of it. On the day of the accident Powell was running the machine along the highway and had with him appellant and two others who were passengers for hire. At that time Powell was running the machine under his agreement with appellant, and appellant was riding with him as an invited guest, and was taking no part in running it. Appellant calls his agreement with Powell a leasing or renting of the machine. There is no evidence - that appellant was to share any of the expense or any losses if any resulted.

There is no evidence that appellant was held out to the public as a partner either by himself or Powell, and the question of liability arising therefrom even where the parties are not partners inter sese does not arise here.

It may be safely assumed we think that there was no partnership as between the parties themselves, and this case must depend upon whether the agreement above set forth in law constitutes a partnership as to third parties, so as to make appellant liable for the tort of Powell in the management of the machine.

The question whether a share in the profits alone makes a party liable as a partner to third parties, has been a fruitful subject of discussion by courts and text writers, and it would be futile to attempt by citation of authorities, to harmonize the apparently conflicting rules and principles to he found.

Kent in his Commentaries Vol. 3, page 33, says: “A person may be allowed in special cases to receive part of the profits of the business without becoming’ a legal or responsible partner. Thus a party may by agreement receive by way of rent a portion of the profits of a farm or tavern without becoming a partner.”

Many of the older text and opinion writers seem to be in conflict with this principle, and they hold that any sharing of the profits subjected the parties to liability as partners to third persons. It is said in the text of the Am. and Eng. Ency. of Law (2d ed.) Vol. 22, page 20, that this doctrine has undergone a change, and that the modern rule is, that persons are not liable as partners to third persons unless they are in fact partners inter se, or have held themselves out as partners under such circumstances as to estop them from denying they were partners.

This text is there said to be supported by the citation of many state authorities, and by the leading English case of Cox v. Hickman, 8 H. L. 268, which it is said was the beginning of the modern doctrine.

In commenting on the case of Cox v. Hickman and other cases cited, it is said in Fougner v. First National Bank of Chicago, 141 Ill. 124, that all the contrary decisions are reconcilable on the distinction, that in the class of cases where a party has been held liable as a partner on account of receiving a share of the profits, there was a proprietary interest in the business. While in the class of cases where he was not so held it was a mere hiring of services, property or money to be paid for out of the profits of the business in which it was engaged. The opinion in this case also quotes Shaw v. Galt, I. R. 16, C. L. 375, as follows: “A partnership even as to third parties is not constituted by the mere fact of two or more persons participating in or being interested in the net profits of a business, but that the existence of such partnership implies also the existence of such a relation between such persons as that each of them is a principal and each an agent for the other.” It is further said in the opinion (on page 128): "Sharing in the profits is the test. That however is also subject to the qualification, that it must be a sharing in the profits, as distinguished from merely making the profits the measure of compensation for services, or for the use of property or money in the business.” The trend of authority in' this state is in harmony with the principles above quoted.

In Smith v. Knight et al., 71 Ill. 148, the case was between the alleged partners and a third party. In that case Knight Baker & Co. agreed to advance to Hennersheets money to aid him in a commission business which Hennersheets was to repay with interest and to divide the commissions made in the business after the payment of expenses. It was held that Knight Baker & Co. were not partners and not being held out as partners they were not liable to third parties. The court in this case cites Adams v. Funk, 53 Ill. 219, where it was held, that where one party was to furnish the money, the other to purchase cattle with it, and the party furnishing the money was to have it returned with interest together with one-half the profits on the sale of the cattle, they were not partners.

In Parker v. Fergus, 43 Ill. 437, it was held that where a party received part of the profits of the business as a mode of paying rent he was not a partner.

Chicago Die and Electric Co. v. Nathan, 141 Ill. App. 171, involved the liability of alleged partners to third persons. In that case Nathan purchased a one-half interest in an invention of Feldman to make cigar tags. The latter was to manufacture twenty-five thousand tags. Nathan was to sell them, the proceeds to be used in paying the expense of procuring the patent and manufacturing the tags, and the remainder of the profits to be divided equally between them. It was held no liability of Nathan to third parties arose out of the agreement, in the absence of any holding out to others that they were partners.

The evidence in this case in our opinion shows nothing more than a letting of the machine by appellant to Powell for the summer for one-half the profits earned by him as compensation for its use. There was no community of interest in the property, no sharing of losses, no control over the business by appellant, and neither was the agent of the other in the enterprise. In the lig’ht of the authorities cited which we hold to be correct rule, there could be no liability of appellant as a partner for the wrong complained of.

The judgment is reversed.

Reversed.

We find as an ultimate fact that appellant was not a partner of Powell and was not liable for the injury complained of in the declaration.


text:
    People ex rel. Frank J. Barnett et al., Plaintiffs in Error, v. Charles A. Bartlett, Defendant in Error.
    1. Municipal corporations—what does not affect eligibility of alderman. A conviction of the crime of using the mails for lottery schemes does not render an incumbent ineligible to hold the office of alderman.
    2. Municipal corporations—what essential that conviction shall affect eligibility of aldermen.. Held, that a statute which renders an alderman ineligible if convicted ‘ ‘ of malfeasance, bribery or other corrupt practice or crime” etc., should be restricted to those enumerated offenses committed within the territorial and political jurisdiction of the state and cannot be extended to embrace such offenses committed in violation of the laws of other states or of the United States.
    3. Statutes—how affecting rights of citizenship construed. A statute which excludes a citizen from exercising rights of citizenship is to be strictly construed.

      Quo warranto. Error to the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    J. F. Gillham, for plaintiffs in error; Eaton & Eeck, of counsel.
    Early & Williamson and Terry & Gueltig, for defendant in error.
   Mr. Justice Shirley

delivered the opinion of the court.

Plaintiffs in error filed an amended information in the nature of a quo warranto informing the court that defendant in error unlawfully held and executed without warrant, right or lawful authority, the office of alderman of the city of Edwardsville, and had usurped said office. The information prayed process and the answer of defendant in error, by what warrant he held and executed the office.

Defendant in error interposed two pleas, in the first of which all the material facts necessary to show how he was elected and qualified to hold the office were averred except that he did not aver that he had not been convicted of malfeasance, bribery or other corrupt practice or crimes, but averred he had not been so convicted “under the laws of the State of Illinois.” The second plea contained the same averments as the first and in addition thereto contained the following averment to-wit: “Nor has he ever been convicted of malfeasance, bribery or other corrupt practice or crimes.” To the first of the pleas plaintiffs in error demurred, and the court overruling the demurrer, the plaintiffs in error abided by it. To the -second plea plaintiffs replied that defendant was convicted on February 1,1905, in the District Court of the United States in and for the Southern District of Illinois, on an indictment charging him with using the mails for lottery schemes; that judgment was rendered thereon, and he was sentenced to pay a fine. ‘ ‘Wherefore he had forfeited his qualifications for, and was ineligible to hold the office of alderman in the city of Edwards-ville.” Defendant in error interposed a demurrer to this replication which was sustained, and upon plaintiffs abiding by the replication, the court entered judgment in bar of the action on the first plea and in bar of the action on the replication.

The errors assigned question the ruling of the court in entering said judgment, and the record presents two questions to be determined.

The replication to the second plea presents the question whether using the United States mails for lottery schemes and a conviction therefor operated to make defendant in error ineligible to hold the office of aider-man of a city organized under the general law of this State entitled “Cities, Villages and Towns.” Paragraph 5, Art. 3, of said statute reads as follows: “No person shall be eligible to the office of alderman * * * if he shall have been convicted of malfeasance, bribery or other corrupt practices or crimes.”

It is claimed by plaintiff in error that the words ‘ ‘ other corrupt practices or crimes ’ ’ mean any corrupt practices or crimes of which defendant in error was convicted while defendant in error insists that in the interpretation of the statute the rule of ejusdem generis applies and only such corrupt practices or crimes as are of the same class as malfeasance or bribery, were intended to be included in the language of the act. The crime averred in the replication with which defendant in error is charged is not of the same class as the crimes of malfeasance and bribery.

The rule which usually obtains in cases where a citizen is excluded from exercising rights of citizenship is, that such statutes should have a strict construction. It is also a well settled rule of interpretation that “if general words follow an enumeration of particular cases such general words are held to apply only to cases of the same kind as those which are expressly mentioned, unless there is something to show a wider sense was intended.” Town of Stites v. Wiggins Ferry Co., 97 Ill. App. 157. See also Potters Dwarris, 247-248; Sherk v. The People, 121 Ill. 61. “When the language of the act itself points to the associated words as interpreting the more general ones the application of the rule is obvious. * * * They take as it were their color from each other; that is, the more general is restricted to a sense analogous to the less general.” Endlich Int. of Stat. 400.

Testing the statute before us by these rules, we think its language comes clearly within the rule ejusdem generis, and that the words other corrupt practices or crimes were intended by the lawmaker to mean such corrupt practices or crimes as were of the same class as bribery and malfeasance as they relate to the evil conduct of public officers.

“Where general words follow particular ones, the rule is to construe the former as applicable to persons or things ejusdem generis. This rule has been stated as to the word ‘other’ thus: Where a statute * * * enumerates several classes of persons or things and immediately following and classed with such enumeration, the clause embraces other persons or things the word ‘other’ will generally be read as ‘other such like’ so that persons or things therein comprised may be read as ejusdem generis with, and not of a quality superior to, or different from these specifically enumerated.” Am. & Eng. Ency. of Law, 2nd Ed., 1012; Misch v. Russell, 136 Ill. 22. While this rule of construction is not inflexible and is one of intention only, we are quite clear it should be invoked in this case.

We think the alleged offense charged against defendant in error in the replication not being of the same class as bribery and malfeasance the court properly sustained the demurrer thereto.

Under the averment of the first plea that defendant in error had not been convicted of malfeasance, bribery or other corrupt practices or crimes under the laws of the State of Illinois, the other question is presented whether it is necessary to make him ineligible that he should be so convicted under the laws of this state, or whether such conviction under the laws of some other state or country or of the United States would be sufficient.

We have not been referred by counsel to any decision directly decisive of the question, nor have we in our investigations been able to find one. The case of Hildreth v. Heath et al., 1 Ill. App. 82, cited by counsel for defendant in error, was one where the remedy by mandamus had been invoked to compel the city council to admit a member, and it was held the remedy would not lie, as the power to judge of the qualifications of its members, involved the exercise of the judgment and discretion of the council, and their determination in that respect, could not be revised by mandamus.

While it was not necessary to the decision of that case, Justice Bailey, the writer of the opinion, said the court was inclined to hold that the section of the city charter which declared a person to be ineligible to the office of alderman, who had been convicted of malfeasance, bribery or other corrupt practices or crimes, should be limited by construction to convictions under the laws of the State of Illinois, and that a conviction in the courts of the United States of an offense created by act of Congress could not be held to be a disqualification. While this expression of opinion appears to be an obiter dictum we think it stated a correct principle. It is a rule of interpretation that in the absence of an intention expressed or inferred, the presumption is that the legislature does not intend a statute to operate beyond the territorial limits of its jurisdiction. Am. & Eng. Ency. of Law, 2nd ed., Vol. 26, 643, and cases cited. Nor do we think it can be intended to operate beyond its political jurisdiction.

"Generally all laws are coextensive and only coextensive with the political jurisdiction of the law-making power.” McCarthy v. C. R. I. & P. Ry., 18 Kan. 46. We think by the language of the statute above recited, it should be restricted to those enumerated offenses committed within the territorial and political jurisdiction of the state and cannot be extended to embrace such offenses committed in violation of the laws of other states or of the United States.

The plea presented a good defense to the information and the demurrer to the plea was properly overruled.

Perceiving no error the judgment of the circuit court is affirmed.

Affirmed.