author: Bakeb, J.

text:
    St. Louis, Alton and Terre Haute Railroad Co. v. George W. Hill et al.
    1. Railroad discriminations — Charter granted by State. — The “ right to fix rates of tariff with such discriminations as to it may seem to be most conducive to the interests of its road,” granted to a railroad company in its charter by the State, must be construed as being with an implied limitation or restriction that the railroad shall, in fixing the rates of tariff, make them reasonable, and not extortionate, and that it shall in making discriminations make such only as are reasonable and just.
    2. Discriminations at common law. — At common law all discriminations by common carriers are not forbidden, but only those which are unreasonable and unjust. As they are carriers for hire indifferently for all persons, they are required to serve all who properly apply for transportation in the order of their applications. Authorities differ as to whether the common law rule against unjust and arbitrary discrimination, requires an equality of charge. The weight of American authority, however, is that the common law requires that the charges must be equal to all, for the same service of transportation under like circumstances.
    3. Difference in distance. — There is no requirement of the common law, that when there is a difference of distances in the services performed, the charge of the common carrier shall be proportioned equally to the respective distances; or that when the greater charge is made for the greater distance, it shall bear any given proportion to that made for the shorter distance.

      4. Construction of statute. — The seven specified acts of discrimination in section three of the statute, define the offense of unjust discrimination “such’' as is to “he deemed and taken” as “the unlawful discriminations prohibited by the provisions of the act,” and the clause “This section shall not be construed so as to exclude other evidence tending to show any unjust discrimination in freight and passage rates ” the court regards as treating of the matter only in its evidential aspect a,nd not as intended to expand the definition of the offense so as to include any discrimination in freight or passenger rates that the court or jury may deem unjust. It is the intent of the clause not to confine the plaintiffs to the simple fact which makes the prima facie case, but allow them to introduce “ other evidence tending to show ” the discrimination involved in the prima facie case was unjust.
    5. Discriminations — Difference in distance. — Where the distance from A to B was 14 miles and of 0 to B was 28 miles and the schedule of reasonable maximum, freight rates established by the commissioners for appellant's railroad was $14.22 per car load from A to B and $17.58 from C to B and the railroad .company charged $17.40 per car load for the latter distance and $5.00 for the former. Held, that this was no unjust discrimination within the provisions of the act of 1873.
    6. Unjust discrimination. — Where appellant charged appellees two cents more per hundred pounds per car load for carrying certain wheat from C to B than it charged others for wheat shipped from 0 and consigned' to and delivered in the B elevator in B. Held that this case falls directly within the provisions of the statute. The right of the corporation to compel the shipper, under the penalty of a higher rate of toll, to ship his freights to a particular consignee can not be admitted, and the alleged difference of delivery on the track and delivery into an elevator in detention of cars does not afford a just ground for such discrimination.
    7. Pleading. — When a defendant demurs to a replication to a plea and the demurrer is overruled, and he traverses the replication and goes to the country, he can not raise the legal question presented by the demurrer.
    Error to the Circuit Court of St. Clair county.
    Opinion filed May 16, 1884.
    Mr. E. A. Halbert, for appellant;
    as to extortion, cited C., B. & Q. R. R. Co. v. The People, 77 Ill. 419; C. & A. R. R. Co. v. The People, 67 Ill. 11.
    As to whether at common law the common carrier was bound to charge the same rate for the same services to all customers: Hutchinson on Carriers, §302, note; 2 Redfield on Railways, 5th ed., 95; T. W. & W. Ry. Co. v. Elliott, 76 Ill. 67; Rogan v. Aiken, 9 Am. & Eng. Ry. Cases, 201; Vincent v. C. & A. R. R. Co., 49 Ill. 44; C., B. & Q. R. R. Co. v. Parks, 18 Ill. 464.
    The charter given to the railroad by the State is a contract: 1. C. R. R. Co. v. McLean Co., 17 Ill. 291; Neustadt v. I. C. R. R. Co., 31 Ill. 484; I. C. R. R. Co. v. Goodwin, 94 Ill. 262; C., B. & Q. R. R. Co. v. Iowa, 94 U. S. 161; C. & A. R. R. Co. v. The People, 67 Ill. 11; Ruggles v. The People, 91 Ill. 256; I. C. R. R. Co. v. The People, 95 Ill. 313.
    Appellant, in making discriminating rates, is protected by its charter against legislative interference: C., etc., R. R. Co. v. Iowa, 94 U. S. 161; Peik v. C., etc., R. R. Co., 94 U. S. 176; Stone v. Mississippi, 101 U. S. 816; Binghampton Bridge Case, 3 Wall. 72; Miller v. State, 15 Wall. 511; Planters Bk. v. Sharp, 6 Howard, 327.
    Messrs. G. & G. A. Koerxer, for appellees;
    that at common law the common carrier was not compelled to treat all persons equally, but he must charge only reasonable rates, cited Directors Great West. Ry. Co. v. Sutton, 4 E. & I. App. (H. L.) 226.
    Competition is no excuse for discrimination: C. & A. R. R. Co. v. The People, 67 Ill. 11.
   Bakeb, J.

The statement, one is a common carrier, ex vi termini imports a duty to the public, and a corresponding legal right in the public; a right common to all.

One of the duties imposed upon the common carrier is, that he is bound to carry for a reasonable remuneration, and is not allowed to make unreasonable and excessive charges. He can not, like a merchant or mechanic, consult his pleasure or caprice* in the conduct of his business, and can not, even by special agreement, receive an excessive and extortionate price for his services.

Another duty imposed on him is to make no unjust, in jurious or arbitrary discriminations between individuals in his dealings with the public. The right to the transportation services of the common carrier is a common right, belonging to every one alike: Sanford v. Railroad Co., 24 Penn. St. 378; Shipper v. Penn. R. R. Co., 47 Id. 338; N. E. Express Co. v. M. C. R. R. Co., 57 Maine, 178; McDuffie v. Railroad, 52 N. H. 430; C. & N. W. Ry. Co. v. The People, 56 Ill. 355.

It is urged by counsel that the provisions of the extortion and unjust discrimination act of 1873, at least so far as it has reference to the subject of discriminations, is inoperative as regards the appellant corporation.

The ground for this claim is, that its charter is a contract between it and the State, and that by that charter it was given the “ right to fix the rates of tariff with such discrimination as to it may seem to be most conducive to the interests of its road.” Does this provision by its express terms, and to the exclusion of any implied qualification, vest the corporation with plenary power to discriminate at will in its rates of toll? In the case of Ruggles v. The People, 91 Ill. 256; it was held that an express grant of power in the charter of a railway company to fix the rates of tolls to be charged, and to alter and change the same, does not confer unlimited power, but only the right to charge reasonable rates; and that what is a reasonable maximum rate may be fixed by statute.

In the case of The Illinois Central R. R. Co. v. The People, 95 Ill. 313, it was held that the act of May 2, 1873, to prevent extortion and unjust discrimination in railroads, is a constitutional enactment, and not in violation of the contract between the State and the railroad companies, growing out of the granting and accepting of their charters, containing power to.establish such rales of toll for the conveyance of persons and property as they shall, from time to time, direct and determine in their by-laws. These decisions have both been affirmed by the Supreme Court of the United States. "We must, in analogy to these cases, hold that the right to'fix rates of tariff with such discriminations as to it seem to be most conducive to the interests of its road, granted appellant in its charter, is with an implied limitation or restriction, that appellant shall, in fixing the rates of tariff, make them reasonable and not extortionate; and that it shall in making discriminations, make such only as are reasonable and just, and not such as are arbitrary, unreasonable and unjust.

The main controversy in this suit is upon the charge of unjust discrimination. The gravamen of the supposed offense, as respects the shipments of flour is, that the distance from Belleville to East St. Louis is fourteen miles, and the distance from New Athens to East St. Louis twenty-eight miles; that from the first day of January, 1876, to the eighth day of December, 1879, appellees shipped over appellant’s railroad from New Athens to East St. Louis, 982 car loads of flour, of 100 barrels each, for which appellant charged $17.40 a car load, which was a greater compensation per car load per mile, than it charged for the transportation of a like quantity of freight of the same class, transported during the same time in the same direction over a same portion of its road of less distance, to wit, from Belleville to East St. Louis, the toll from Belleville to East St. Louis being $5.00 per car load. The schedule established by the railroad and warehouse commissioners for appellant’s road, of reasonable maximum freight rates on flour, from New Athens to East St. Louis, 28 miles, was $17.58 per car load, and from Belleville to East St. Louis, 14 miles, $14.22 per car load. The amount charged appellees was uniformly $17.40, being 18 cents per car load less than the rate fixed by the commissioners. The evidence shows that during the period covered by the declaration the rates on flour on appellant’s road from Belleville to East St. Louis fluctuated greatly, and ranged from $5 to $10 per car load.

The grounds claimed by appellant to justify the discriminations made by it in favor of west bound freights from Belleville are, in brief, that Belleville was a large distributing and consuming point for. goods shipped from East St. Louis, and that having the empty cars there it could do a return business from Belleville, without the ordinary expense incident to an out "business from a small station, and could get loads and pay both ways; that the grades from Hew Athens to Belleville were long and heavy, while from the latter place to East St. Louis a train would run almost of its own momentum, and that consequently from ten to twenty loaded cars could be taken by an engine from Belleville, additional to those hauled from Hew Athens, and at no appreciable additional expense; and that there being three competing lines of railway between Belleville and East St. Louis, and there being, during- the time covered by appellees’ shipments, a war, primarily between the Illinois & St. Louis and the southeastern companies, in rates on flour, bran and grain, appellant was compelled, in order to accommodate and retain its customers, to haul from Belleville at the current and fluctuating cut rates, although they were not remunerative.

There is some conflict in the authorities as to the extent to which the common law rule goes in prohibiting discriminations by common carriers. They all agree, that all discriminations are not forbidden, but only those which are unreasonable and unjust. They also all agree, that as they are carriers for hire indifferently for all persons, there are some discriminations they may not make, and they are required to serve all who properly apply for transportation, and in the order of their applications. The point of friction in the authorities is, as to whether the common law ¡rule against unjust and arbitrary discriminations requires an equality of charge. Some of the courts hold, in substance, that all have the right to the same carriage and at a reasonable price for the service performed, but that the commonness of the duty to carry for all, does not involve a commonness or equality of compensation or charge; and that all the shipper can ask the carrier is that he shall charge him no more than a reasonable sum. Fitchburg R. R. Co. v. Gage, 12 Gray, 393; Johnson v. P. & P. R. Railroad Co., 16 Fla. 623.

The English authorities are to the effect that at common law the common carrier is not bound to carry at equal' rates for all customers in like condition; and the English cases to the contrary, cited by the appellees, are based either upon some general or special statute. However, the decided weight of American authority holds that the common law reqnire.4 that the charges must be equal to all for the same service of transportation under like circumstances. Sanford v. R. R. Co. ante; Shipper v. Penn. Co. ante; McDuffie v. R. R. ante; Rogan v. Aiken, 9 Am. & Eng. Ry. Cases, 201; Messenger v. Penn. R. R. Co., 36 N. J. L. 407; Vincent v. C. & A. R. R, Co., 49 Ill 33; C. & N. W. Ry. v. The People, 56 Id. 365; C. & A. R. R. Co. v. The People, 67 Id. 11.

The common law rule as announced in these cases is an inhibition of a different compensation from various persons for the same or an identical service under identical conditions. In Smith’s Leading Oases p. 174, the rule is stated by him to be that the hire charged must be no more than a reasonable remuneration to the carrier, and, consequently, not more to one than to another for the same service. In the case of the Chicago & Alton Road v. The People, the doctrine of the common law as to prohibited discriminations was broadly stated, and it was held to apply as between different communities or localities as well as between different individuals of the same town, and to include the case of the same or a greater charge for the shorter of two given distances, the shorter distance being a part of the greater distance; and it would seem the rules necessarily include this, as it is mathematically true both that the whole includes the part and that the part is not equal to the whole. But we know of no decided case that holds or suggests that, from the standpoint of the common law and that only, a greater charge for the greater distance is unjust discrimination, upon the ground, the proportionate charge per mile is greater for the longer distance than it is for the shorter. The charging of a less price for the same or a greater service creates a presumption that the person who is charged the greater sum for the same or a less service has paid more than a fair and reasonable rate. But, from the fact the greater price is paid for the greater distance, there is no presumption that more than a fair and reasonable rate is paid, even though the rate per mile is more; and this because there is an element that enters into the consideration for the greater amount so paid that does not enter into the consideration for the smaller amount paid for the shorter distance. There is nothing with which to compare this element of consideration, and thereby ascertain whether or not the discrimination in average rate per mile is arbitrary and unreasonable. There is, then, no requirement of the common law that the carrier’s tolls for different services, and where the greater toll is for the greater service, shall be proportioned, or at a given rate per mile.

The second section of the act of 1873 prohibits “ any unjust discrimination in rates or charges of toll or compensation;” and the third section of the act states seven specified acts of discrimination as respects rates or charges, and then provides that “ all such discriminating rates, charges, collections, or receipts, whether made directly or by means of any rebate, drawback or other shift or evasion, shall be deemed and taken, against such railroad corporation, as prima facie evidence of the unjust discriminations prohibited by the provisions of this act.” There can be no just or even plausible claim that the discriminations made by the appellant in its charges on flour are included in any of the specified acts of discrimination designated in this section three.

The prohibition of section one of the act, is as general and comprehensive against the receipt of more than a fair and reasonable rate of toll, as the prohibition of section two is against any unjust discrimination in rates of toll. And the language of section three as regards the specified acts of discrimination, is identical with that used in section eight in respect to the schedule of reasonable maximum rates of charge, i. e., that both “shall be deemed and taken’ as prima facie evidence.” In the case of C., B. & Q. R. R. Co. v. The People, 77 Ill. 443, it was held that a disregard of the schedule is a necessary element of the offense of extortion against which the statute is directed, and that the schedule is something more than evidence and is a fact upon which the action rests. As sections three and eight are, as respects the point in question, the same in their phraseology, and as section three performs a like function for section two, as section eight does for section one, it must needs follow that the specifications found in section three are something more than evidence, and are the facts upon one or another of which, the action under the statute for unjust discrimination must rest. We conclude then from the logic of the case cited, that the seven specified acts of discrimination in section three define the offense of unjust discrimination “ such ” as is to “ be deemed and taken ” as ”. “ the unlawful discriminations prohibited by the provisions of the act.”

In fact, the Supreme Court in their opinion say: “ The statute defines, in section three in respect to unjust discrimination, as it provides in section eight in respect to reasonable rates, what shall be deemed and taken as prima facie evidence of the unjust discriminations prohibited by the act.” And in the dissenting opinion it is said, “We hold that the averments contained in the 20th count show a violation of the sécond and ■third sections of the act, and that it is good. Those sections define the offense of unjust discrimination, and the averments show that the offense was committed.” We understand these as plain intimations that the offense inhibited by these sections and against which the heavy penalties of the statute are denounced, is one that falls within one or another of the cases mentioned in section three.

This section three not only defines and fixes the boundaries of the statutory offense, but provides what shall be prima facie evidence of its commission, and makes the fact itself of “ such ” discrimination, such prima facie evidence. Then, after a provision regarding an excuse or justification by the corporation on the ground of competition, follows the clause, “ This section shall not be construed so as to exclude other evidence tending to show any unjust discrimination in freight and passage rates.” This clause we regard as treating of the matter only in its evidential aspect and not as intended to expand the definition of the offense so as to include any discrimination in freight or passenger rates that the court or jury may deem unjust. Th e prima facie case, made by proof of one or another of the discriminations specified in the section, is of course subject to rebuttal, not only by denial of the fact of the discrimination charged, but by showing the discrimination was not unjust; and so, it is the intent of this clause, not to confine the people or the plaintiffs to the simple fact which makes the prima, facie case, but allow them to introduce “other evidence tending to show” the discrimination involved .in the prima facie case, was unjust. And so, also, in furtherance of this object, section eight provides that the schedules of reasonable maximum rates of charges made by the commissioners shall, in all suits wherein is in any way involved the question of unjust discrimination in relation to charges for transportation, be deemed and taken as prima facie evidence of what are reasonable maximum rates. The schedules would have no tendency to prove the particular act of discrimination charged, but only a tendency to show the act was unjust, as being based on a charge in excess of a maximum reasonable rate.

The inhibition of this clause is not against the exclusion of evidence tending to show any other unjust discrimination, but against the exclusion of any other evidence tending to show any unjust discrimination, i. e., other evidence, cumulative to that afforded by the prima facie case, to demonstrate any discrimination alleged and within the definition of the offense was in truth uwjust. We can not suppose the legislative intention was, by the general language used either in section two or in this clause of section three, to give full and plenary power to the courts by judicial legislation to say what is and what is not an unjust discrimination as respects charges for freight. There would be too wide a latitude afforded for differences of opinion and of conclusion, and the hazard to important rights and large'property interests would be extreme. The magnitude both of the public and the private interests involved in the issue, and the heavy penalties, fines and forfeitures imposed by the statute,'alike forbid it to be judicially considered that these general and vague expressions have such expansive and ill-defined effect,.

By section two the scope of the statute, as respects discriminations, is expressly limited to -discriminations in rates or charges of toll, or compensation. Even if it be true, that either by force of section two or of the clause in section three, ail discriminations in charges of toll that are by the common law unjust and illegal are embraced and brought within the statute, yet, as we have seen, the sole and only rule of the common law in that behalf is the same service to all and for the same service the same reasonable compensation.

This doctrine has been applied in cases where there were special contracts to carry for one to the exclusion of others, and in cases where there was an inequality of charge for the same service. If the rule be extended to its utmost limit, and so as to include all cases falling within the principle upon which it is founded, it would seem such cases are all included in the prima facie cases stated in section three. There is no mandate of the common law, that when there is a difference of distances in the services performed, the charges of the common carrier shall be proportioned equally to the respective distances and at a uniform rate per mile; or that when the greater charge is made for the greater distance, it shall bear any given proportion to that made for the shorter distance.

If we go beyond that which we have stated as the common law rule, and beyond the cases designated in the statute, where is the line to be drawn? The charge per car load having been lowered a certain sum from Belleville to East St. Louis, what reduction did the law require appellant to make in its tolls for west bound freights from stations east of Belle-ville? Was the rate per mile per car the test? Or, was the charge to be lowered the same sum from all other stations? Or, was the rate to be lowered for all longer distances in accordance with the sliding scale of the railroad commissioners? Or, was the reasonable cost of the transportation beyond Belleville to be added to the Belleville charge? A difference in amount of toll from any named station to any two given stations involves necessarily the fact of a discrimination. But where, in the absence of an equality of service, and also of an express statutory enactment, does the domain of unjust discrimination begin? The answers to these several questions might be as numerous and as variant as the courts or juries before whom they might arise. As was suggested by the Supreme Court in the Chicago, Burlington & Quincy case, there would be no certainty of the railroad companies being able to conform to the law, and they would be left in a state of uncertainty and danger, and exposed to injustice.

Our conclusion then is, that the facts disclosed by the record show no unjust discrimination within the provisions of the act of 1873, in the amounts collected from appellees for the transportation of the 982 car loads of flour from New Athens to East St. Louis.

The charge of unjust discrimination in the transportation of one hundred and forty-nine car loads of bran and mill stuff, stands substantially on the same footing.

The charge of unjust discrimination as respects wheat is? that the appellant corporation charged appellees two cents more per hundred pounds, per car load, for carrying two millions eighty-three thousand two hundred and twenty-three pounds of wheat from New Athens to East St. Louis, than it charged others for wheat shipped from New Athens and consigned to, and delivered in the East St. Louis elevator. One of the specifications of unjust discrimination in section three of the act, is where the railroad company shall charge, collect or receive from any person or persons, for the transportation of any freight upon its railroad, a higher or greater rate of toll or compensation than it shall, at the same time charge, collect or receive from any other person or persons, for the transportation of the like quantity of freight of the same class, being transported from the same point, in the same direction, over equal distances of the same railroad. The case, as regards the shipments of wheat, would seem to fall directly within this provision of the statute. The right of the corporation to compel the shipper, under the penalty of a higher rate of toll, to ship his freights to a particular consignee, can not be admitted. The alleged difference of delivery on the track and delivery into an elevator in detention of cars, does not afford a just ground for such discrimination. The usual time allowed to unload a car is twenty-four hours from the date of notice of arrival, and the rule is to charge §5.00 per day for a car if not unloaded in this twenty-four hours.

This demurrage charge of $5.00 a day for delay is made alike to all consignees, and whether the delivery is on track or in elevator; and must be presumed to be the fair and reasonable compensation for such delay. If two car loads of wheat are delivered, the one to a consignee on the track and the other to an elevator, and there is a delay of one day in unloading, as to each of these cars, the justice of imposing upon the one a penalty of $5.00 and two cents in addition for each hundred pounds of wheat, and upon the other the penalty of $5.00, and that only, is not perceived; and if each of the two consignees unloads his car within the reasonable time allowed for such service, and with equal promptness, it is manifestly an arbitrary discrimination to say the shipper to the one consignee shall pay two cents more per hundred pounds for his car load of wheat than the shipper to the other pays. According to appellant’s mode of conducting its business in this behalf, even were the car on the track unloaded within one hour after arrival, and the car at the elevator not unloaded within twenty hours thereafter, yet there would be a heavy charge for delay to the first and no charge whatever for delay to the latter. If the railroad company has not sufficient tracks accessible for teams for the prompt delivery of all the car loads of freight it may carry, then it is its duty to provide such tracks; or, at all events, it must not charge the shipper or consignee for damage and delay caused by its own want of proper facilities to do with promptness the business it undertakes to do. The two cents additional charge on each one hundred pounds of wheat seems only ostensibly a charge for delay of cars, and in reality an unjust discrimination in rates of toll, to force appellees to make their shipments to a particular consignee or class of consignees.

There are several counts in Itbe declaration for extortion. The rates on bran and on wheat collected by appellant were in excess of the reasonable maximum rates of charges permitted by the schedule prepared for appellant’s road by the railroad and warehouse commissioners. And we find no evidence in the record to overcome the prima facie case thus made out.

Appellant insists the replication to its plea of the Statute of Limitations is bad in law. The question is not properly before us for decision. When a defendant demurs to a replication to a plea and the demurrer is overruled, and he traverses the replication and goes to the country, he can not raise the legal questions presented by the demurrer. It may be doubted, however, if the evidence sufficiently sustains the replication, such as it is.

The judgment of the circuit court was in favor of appellees for $12,500, and this was greatly in excess of the amount they were entitled to recover. The rulings of the circuit court upon the instructions and otherwise, so far as they conflict with the views herein expressed, we hold to be erroneous.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Wall, P. J. took no part in the decision of this case.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
    John Thomlinson et al. v. Emanuel Earnshaw et al.
    1. Interest, when due on accounts. — Under our statute, interest is recoverable on money due on the settlement of accounts from the day of liquidating accounts between the parties and ascertaining the balance.
    2. Liquidation op account — Statements.—Where an account consisted of a number of items of both- debits and credits, running through several months, 'and statements of the amount of material delivered as per contract to defendants were furnished defendants by plaintiffs at intervals, while the contract was being performed, and such statements were retained by the defendants without objection, but in none of the statements were any payments credited. Held, that the fact that defendants made no objection to the several statements is perhaps evidence of an implied admission of their correctness; but this only furnishes proof of the items composing the debit side of the account, and has no tendency to show a liquidation of the entire account and ascertainment of the balance.
    8. Practice. — 'Where the only error in the record was as to the interest, the amount of which was easily separable from the residue of the judgment. Held, that there is no necessity for reversing the judgment in tota: Practice Act, § 83. Plaintiffs offer to remit the interest in case this court holds interest is not recoverable, and the case is reversed at their costs, with directions to court below, upon a remittitur being made, to enter judgment for the principal.

      Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Opinion filed April 15, 1884.
    Mr. Allan C. Stoky, for appellants;
    as to the allowance of interest, cited Sammis v. Clark, 13 Ill. 544; Clement v. McConnell, 14 Ill. 154; Davis v. Kenaga, 51 Ill. 170; W. Chicago A. Works v. Sheer, 104 Ill. 586.
    It is error for a court to allow the ad damnum to be increased after verdict: Brown v. Smith, 24 Ill. 197; Fourneir v. Faggott, 3 Scam. 347; Stevens v. Sweeney, 2 Gilm. 375; Russell v. Chicago, 22 Ill. 283.
    Mr. W. W. Gurley, for appellees;
    that' the fact that appellants made no objection to the statement of the account and subsequently made partial payments thereon, clearly amounts to a liquidation of the account, and that the claim draws interest from the time of liquidation, cited Casey v. Carver, 42 Ill. 225; Ditch v. Vollhardt, 82 Ill. 134; Driver v. Ford, 90 Ill. 599; Stern v. The People, 102 Ill. 540; Cooper v. Coates, 21 Wallace, 105.
    Appellants can not raise the question as to the ad damwvwn, because they, in the court below, made no objection to the amendment of the ad damnum, and in their written grounds for a new trial did not assign this amendment; and this question can not be raised under the general assignment of error, that the court below erred in overruling the motion for a new trial: Ottawa, etc., R. R. Co. v. McMath, 91 Ill. 104; Shaw v. The People, 81 Ill. 150; C. R. I. & P. Ry. Co. v. N. I. C. & I. Co., 36 Ill. 60.
   Bailey, J.

This was an action of assumpsit, brought by Emanuel Earnshaw and others against John Thomlinson and others, on an account for stone furnished by the plaintiffs from their quarry, in pursuance of an oral contract with the defendants, to be used by the defendants in erecting a court house at Washington, Indiana. The declaration contained only the common counts, to which the defendants pleaded non assumpsit, and also a plea of set-off, claiming damages of the plaintiffs in consequence of the inferior quality of the stone furnished under the contract. The evidence shows that the stone was delivered from time to time, from April 27, 1877, to November 9th of the same year, as needed in the erection of the building, and amounted in all, according to the contract price, to $7,974.75, and that the defendants paid the plaintiffs various sums on account, amounting to $7,216.39, leaving a balance unpaid of $768.36. The jury at the trial found against the defendants on their plea of set-off, and rendered a verdict for the plaintiffs for the balance of the account with interest, amounting to $1,009.27. \

As to the defense of set-off, the evidence was conflicting, and we can not say that the jury were not warranted in finding for the plaintiffs on that issue. We think, however, that the evidence did not warrant the allowance of interest on the plaintiff’s account, and that, to that extent, the verdict and judgment are erroneous.

Under our statute, interest is recoverable “on money due on the settlement of account, from the day of liquidating, accounts between the parties and ascertaining the balance.” It is clear that the present case is not brought within this provision of the statute. The account consists of a considerable number of items of both debits and credits, running through several months, and there is no evidence that it was ever liquidated between the parties. It seems that statements or memoranda of the amount of stone delivered to the defendants were furnished them by the plaintiffs at intervals, while the contract was being performed, and so far as appears, such statements were retained by the defendants without objection; hut this has no tendency to show a liquidation of the entire account and an ascertainment of the balance. The fact that the defendants made no objection to the several statements is perhaps evidence of an implied admission of their correctness'; hut this only furnishes proof of the items composing the debit side of the account. In none of those memorandums were any payments credited, nor can they in any sense be regarded as supplying the place of a general statement of the account, showing and ascertaining the balance due.

The only error in the record being as to the interest, the amount of which is easily separable from the residue of the judgment, there seems to be no necessity for reversing the judgment in toto so as to subject the parties to the trouble and expense of a new trial. In cases of this character, ample authority is given by the eighty-first section of the Practice Act, to enter the proper judgment in this court, or to remand the cause to the court below, with directions to that court to enter judgment for the proper amount. The plaintiffs, moreover, offer to remit the amount of the interest in case we hold that interest is not recoverable, and content themselves with a judgment for the principal only. We think they' are entitled to a judgment for that amount, and in case they voluntarily remit the interest, they should not be compelled to retry the case. A proper practice, in cases of this kind, is clearlyindicated in the West Chicago Alcohol Works v. Sheer, 104 Ill. 586. In conformity with the practice .there laid down, the judgment of the Superior Court will be reversed, at the costs of the plaintiffs below, with directions to that court, upon a remittitur being made by the plain'tiffs, of $280.91, to enter judgment in their favor on the verdict for the residue, viz.: $768.36 and costs. In case of a failure tt> make such remittitur within thirty days after the re-instatement of this cause in the court below, that court is directed to award the-defendants a new trial.

Judgment reversed.


author: Per Curiam.

text:
    Carrie J. Lewis v. S. S. Hawkins.
    Puefondekance oe evidence. — The court is of opinion that the clear preponderance of the evidence is in favor of appellant, viz.: that appellee was guilty of negligence and unskillfulness in manufacturing a dress for appellant, and therefore the judgment is reversed so that the cause may be submitted to another jury.

      Appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Opinion filed April 15, 1884.
   Per Curiam.

This suit was brought by the appellant against the appellee before a justice of the peace, to recover damages for the negligence and unskillfulness of the appellee, a dressmaker, in manufacturing for the appellant a dress of a certain style, out of material furnished by the appellant, by means whereof said materials were spoiled and rendered of little or no value. In the justice’s court judgment was rendered for the appellant, for $45.25 and costs, but on appeal to the circuit court a trial was had before the court and a jury, resulting in a verdict and judgment for the appellee.

The fact that the appellant furnished the materials and employed the appellee to make the dress is conceded, and there seems to be no substantial dispute as to the style of dress agreed upon, and the manner in which it was to be made. The appellant alleges that, when made up and delivered to her, the dress was of a different style from the one ordered, was improperly :made and wholly failed to fit, and that, as the material was cut, it was impossible to so change it or make it over as to make it fit properly. As to these matters there is considerable conflict in the evidence, but after carefully examining the whole record, we are of the opinion that the clear preponderance of the evidence is with the appellant. We, therefore, feel compelled to reverse the judgment so that the cause may be submitted to another jury.

The judgment will be reversed and the cause remanded for a new trial.

Judgment reversed.


author: Wilsou, J.

text:
    Charles W. Pardridge et al. v. Patrick F. Ryan.
    1. Granting a new trial — Appellee worked for appellants for a stated salary, and a certain share of the profits. Every six months inventories were taken and the profits averaged $6,000. Prom March to October, 1880, the inventory showed the profits to be $20,000; no good reason was shown for this extraordinary increase. Upon a motion for a new trial, appellants showed that by a mistake of their book-keeper in the final statements, charges for merchandise on the debit side to the amount of nearly $15,000 were omitted; they also g'ave a reasonable excuse for their failure to show these and other facts of the same import at the trial. Held, that the judgment must be reversed and the cause remanded for a new trial. 1
    2. Partnership. — As to the question of a partnership between the parties and of the specific terms of the contract upon which the evidence was conflicting, it was the province of the jury to pass upon.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Opinion filed April 15, 1884.
    Messrs. Swept, Haskell & Gbosscup, for appellants;
    as to when a new trial should be granted, in cases of surprise and fraud, cited 2 Bouv. Law Dic. 293; Wilson v. Brandon, 8 Ga. 136; Arthur v. Mitchell, 18 Miss. 326; Farbrilius v. Cook, 3 Burrow, 1771; Thurtell v. Beaumont, 1 Bingham, 339; Morrell v. Kimball, 1 Greenleaf, 322; 1 Graham & W. N. Tr. 178; Martyn v. Podger, 5 Burr. 2,631; Peagram v. King, 2 Hawks, 605; Houston v. Smith, 6 Ired. Eq. 264; Burgess v. Lovengood, 2 Jones Eq. 457; McNorton v. Robertson, 9 Ired. Eq. 256.
    Messrs. Hynes, English & Dunne, for appellee;
    that the verdict should not he disturbed, cited Rogers v. The People, 98 Ill. 581; Bishop v. Busse, 69 Ill. 403; Hubbard v. Rankin, 71 Ill. 129; C., B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; S. W. & W. R. R. Co. v. Moore, 77 Ill. 217; Wiggins Ferry Co. v. Higgins, 72 Ill. 517; Simons v. Waldron, 70 Ill. 281; Connolly v. The People, 81 Ill. 379; Chapman v. Burt, 77 Ill. 337; Howitt v. Estelle, 92 Ill. 218; Lewis v. Lewis, 92 Ill. 237; Wright v. Gould, 73 Ill. 56; Edgmon v. Ashelby, 76 Ill. 161; Bowen v. Rutherford, 60 Ill. 41; R. R. I. & St. L. R. R. Co. v. Rose, 72 Ill. 183.
   Wilsou, J.

This case grows out of a controversy between the parties as to the amount which appellee, the plaintiff below, is entitled to as his compensation for services rendered by him as manager of appellant’s store, known as the New York store, in the city of Chicago. His claim is that he was made manager of the store in February, 1875, on a designated weekly salary, but with an agreement that as soon as the stock of goods on hand should have been paid for out of the profits of the business he should have a third of the net profits for his compensation; that no rent was to be charged, the building in which the store was located being owned by the Pardridges; that in the summer of 1878 a question arose between the parties as to the extent of Ryan’s share of the profits, he claiming it was to be one third, the Pardridges that it was to be one fourth; that they finally agreed to call it one fourth of the profits and $25 a week; and appellee claims that this was to apply from the time the stock was paid for, under the terms of the original agreement, down to October 11, 1880, when his connection with the business ceased.

Appellants claim that rent, at the rate of $4,000, was to be charged for the store, and that appellee’s weekly salary was to come out of his share of the profits.

The evidence tends to show that, as the business proceeded, inventories were taken from time to time, showing the accumulation of more or less profits, down to October 11, 1880, when appellee left, and subsequently brought the present suit, in which he recovered a verdict and judgment for $11,450. The defendants moved the court for a new trial, which being denied, they appealed to this court.

Aside from the amount of the verdict, we find no material errors in the record. As to the question of partnership, and the specific terms of the contract between the parties, there was conflicting evidence, which it was the province of the jury to pass upon. But as to the amount of the verdict, we can not, by any calculation which we are able to make, find any sufficient evidence upon which to base it, except upon the hypothesis that the profits of the store from March 11, 1880, to October 11, 1880, amounted to the sum of $20,000, or thereabouts.

It appears that they were in the habit of taking an account of stock, and making a statement of the results of the business, at the end of each six months, and that the half yearly profits for the two years next immediately preceding the period between March and October, 1880, averaged in round numbers, about $6,000. Mo sufficient cause is shown for so large and sudden an increase in the profits, as that claimed by appellee from March to October, especially as it does not appear that the amount of goods sold was materially larger than former stocks, nor that there had been any change in the mode of business, or other attending circumstances. It is true the time was seven months instead of six, but this can not be regarded as sufficiently accounting for the extraordinary increase. •

The explanation furnished by appellants is that in making up the final statement, the book-keeper, by mistake, omitted in the debit side of the account, charges for merchandise to the amount of nearly $15,000, which if included in the account would lessen the credit side, and consequently the profits to be divided, by that sum; that this mistake happened by reason of certain outstanding bills for goods purchased by appellee for the store, before the making of the inventory of September 17th, the bills not having then been sent in for payment, and some $8,000 or $10,000 for goods purchased by appellee after September 17tli, the bills of which had been O K-ed by appellee himself, and all of which were paid for by appellants, and were properly chargeable in the store account. These facts, as also a.reasonable excuse for appellants’ failure to show them at the trial, were, we think, sufficiently made to appear on the hearing of appellants’ motion for a new trial, to have required the court to grant such motion. Appellee must be presumed to have known of the purchase of goods bought by himself; and whether he intentionally concealed the fact of such purchase, or otherwise, the effect upon the rights of appellants was the same. "We can not permit a judgment to stand, which, if the showing made by appellants, .in their motion for a new trial, shall be substantiated by proof, would be grossly unjust.

The judgment is reversed and the cause remanded to the court below. ■

Reversed and remanded.


author: Wilson, J.

text:
    J. J. Dunlap v. Allan Gregory, et al.
    1. Setting aside judgment by default. — When a judgment which is plainly unjust has been rendered against a party by default, if a reasonable excuse is shown for not having made a defense, and the party against whom the judgment is rendered exercises reasonable and ordinary diligence in moving to set it aside, it is the duty of the court to exercise its discretion by granting the motion, especially if it be made at the same term at which the judgment is rendered.
    2. Discretion of court. — The discretion vested in the courts to grant or deny motions of this character, is not an absolute, but a legal discretion which is subject to be reviewed. Under the showing as made by plaintiff in error in this case, the court is of opinion that there was not any such lack of diligence on.his part as to debar him, from an opportunity to present his defense upon its merits.
    Error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed April 15, 1884.
    This was an action of assumpsit brought by the defendants in error, in the Superior Court of Cook county, against the plaintiff in error, Dunlap, and his partners, Beale Brothers & Eish. Summons was issued November 3, 1883, against the defendants Beale and Fish, which was returned not found. On the same day a capias ad res. was issued against Dunlap, upon which he was arrested. November 14, 1883, the 'capias, on motion of his attorney, was quashed, and the capias was ordered to stand as a summons. Declaration containing the common counts, filed November 16, 1883; December 6, 1883, judgment against plaintiff in error by default for want of appearance, for $6,153.41.
    Defendant Dunlap moved the court to set aside the judgment and default upon his own affidavit, which was as follows:
    J. J. Dunlap, being duly sworn, says that he is one of the defendants in the above entitled cause; that said action was commenced on the 3d day of November, A. D. 1883, by the issuance of a capias ad respondendum, against the affiant, under which this affiant was arrested and confined in the county jail for ten days; that thereupon this affiant employed one Albion Cate, a regular attorney of this court, to act as his attorney in said cause, and paid to said Cate his retainer of one hundred dollars ($100); that said Cate appeared before this court as the attorney of said affiant, and made a motion to quash said capias, on the fourteenth (14th) day of November, 1883, which said motion was granted and this affiant was discharged from arrest; that thereupon this affiant immediately left for his home at Perry, in the State of Iowa, supposing that said Cate would continue to act for him and protect his interests in said cause, and supposing from the information derived from said Cate, that the quashing of said capias put an end to said litigation; that after he reached home he received a letter, a copy of which this affiant is unable to produce, from said Cate, saying that said cause required further attention, and ashing this affiant to remit to him one hundred dollars ($100) more for his additional services therein; that immediately upon receipt of said letter from said Cate, this affiant wrote to said Cate, stating that his understanding was,- as in fact it was, that said Cate should act for him in the entire litigation for the one hundred dollars ($100) already paid, but if said Cate insisted, he would send him twenty-five dollars ($25) to pay said Cate for securing a continuance and protecting Ms, tMs affiant’s, interests, until he could come to Chicago and arrange for the defense of said suit; and this affiant supposed that arrangement was then made for his' protection in said action, and that said Cate would continue to act for him therein; and this affiant continued in that belief, and supposed that said Cate would act as his attorney therein and make a proper defense therein, until about the 6th day of December, A. D. 1883, when he received another letter from said Cate, refusing to act further in said cause unless he received one hundred dollars ($100); and this affiant further says that upon the receipt of the said first letter from said Cate, this affiant, to arrange beyond peradventure for the making of his said defense in said suit, wrote also to one J. M. Longeneker, another attorney of this court, asking him to see said Cate, and if he, said Cate, did not intend to act for this affiant, to obtain the papers from said Cate, and himself act as his, this affiant’s, attorney therein; that this affiant supposed that he had thus made complete arrangements for the defense of said suit, and did not know such was not the case until he received a letter from said Longeneker, on or about the eighth (8th) day of December last; and in the same or next mail this affiant received a copy of the Drover’s Journal, a newspaper issued at the Stock Yards, in the city of Chicago, stating that judgment in said cause had been rendered against this affiant for the sum of six thousand one hundred and fifty-three dollars and forty-one cents ($6,153.11), by default; that this affiant had also been informed by C. E. Cox, Esq., his attorney at Perry, Iowa, that the capias did not operate as a summons.
    And this affiant further says that he intended in good faith to contest the claim made in said cause, and did not intend to allow judgment to go against him by default; that he has a good defense thereto upon the merits, as to the whole of said claim; that said action is brought against this affiant and the other defendants as partners, under the firm name of Beale Bros., Dunlap-& Fish, for moneys claimed to have been advanced by said plaintiffs to said parties; that the amount of said advances was originally about nine thousand dollars ($9,000), and this affiant understood and claims the fact to be that said advances were made to the defendant, Dennis Beale, and not to said partnership; that the agreement between said partners was that said Dennis Beale was to furnish the capital for said business, and this affiant, so understanding the matter, paid to said Beale his share of the amount of said advances, the same being the amount of his share of the losses of said business; that this affiant is informed by this payment to said Beale and the transfer by him to plaintiffs of said amount, he was enabled to and did reduce the amount of said advances to the amount now claimed by said plaintiffs.
    And this affiant further says, that prior to the commencement of said suit, to wit, on the twenty-fifth (25th) day of October, 1883, the defendants, L. J. Beale, Dennis Beale and Peter Pish, partly out of the funds of said partnership, paid to the said plaintiffs, in settlement and discharge of the plaintiffs’ said claims, the sum of fifty-one hundred dollars ($5,100), and in consideration thereof the plaintiffs on the same day executed and delivered to said Beale and Pish a full discharge and release from all indebtedness due to said plaintiffs from said firm of Beale Bros., Dunlap & Pish, which said release was signed by said plaintiffs and is now in the possession of said defendants; by reason of the premises, this affiant says that he has a good defense to said claims, upon the merits at least, to the extent of said fifty-one hundred dollars ($5,100) so paid thereon by his said partners, and as he is advised by counsel, to the full extent of said claim; and this affiant says that this application is made in good faith, with the intention of vigorously making his defense to said action, and not for the mere purpose of delay, and further this affiant says not.
    (Signed) J. J. Dunlap.
    Sworn to.
    The court refused to vacate the judgment and defendants appealed to this court.
    Henry S. Bobbins, for plaintiff in error.

      Messrs. MoCoy, Pope & McCoy, for defendants in error.
   Wilson, J.

It is the settled rule in this State that motions to set aside defaults are addressed to the sound legal discretion of the court, and unless there has been such an abuse of that discretion as works palpable injustice, appellate tribunals will not review such decisions. The Supreme Court has expressed the rule by varied language in different cases. In some of the earlier cases stronger qualifying terms were used than in more recent cases. In Greenleaf v. Roe, 17 Ill. 474, the language is “ very gross and flagrant abuse”; in Rich v. Hatheway, 18 Ill. 549, “ gross and flagrant abuse ”; in Union Hide and Leather Co. v. Woodley, 75 Ill. 436, “gross abuse”; Hitchcock v. Hersen, 90 Ill. 543, “palpable abuse”; Andrews v. Campbell, 94 Ill. 579, “ unless it appear that the discretion has been abused and injustice done.”

In Mason v. McNamara, 57 Ill. 274, the Supreme Court said: “ As we understand the long and well-settled practice in this State it has always been liberal in setting aside defaults at the term at which they were entered, where it appears by affidavit that the party has a defense to the merits, either as to the whole or a material part of the cause of action; it lias been usual to set aside the default if a reasonable excuse is shown for not having made the defense. In such cases the object is that justice be done between the parties, and not to permit one party to obtain and retain an unjust advantage.”

In Allen v. Hoffman, 12 Bradwell, 576, the court said: “ But he was not bound to show the highest degree of diligence, his motion to set aside the default having been made at the same term at which the default was entered. All he was bound to show was a good and meritorious defense, and the exercise on his part of reasonable and ordinary care and diligence.”

In Waugh v. Suter, 3 Bradwell, 274, it is said: “In applications to set aside default, we regard the point of a meritorious defense as altogether the more important of the two required, and where the judgment is evidently unjust, a certain degree of neglect may, especially as terms can be imposed, be held to be excusable.”

In the light of these eases the rule may be properly stated thus: When a judgment which is plainly unjust has been rendered against a party by default, if a reasonable excuse is shown for not having made a defense, and the party against whom the judgment is rendered exercises reasonable and ordinary diligence in moving to set it aside, it is the duty of the court to exercise its discretion by granting the motion, especially if it be made at the same term at which the judgment is rendered. The discretion vested in the courts to grant or deny motions of this character is not an absolute but a legal discretion, which is subject to be reviewed. Were it otherwise the gravest consequences to the rights of persons and property might result through the mistakes or errors in judgment of inferior tribunals.

Accoi’ding to the showing of the affidavit of Dunlap, which, for the purposes of the motion to vacate, must be taken as true, the plaintiffs’ demand at the time of the trial had been reduced to $1,033.41, if it had not been wholly extinguished, and yet they obtained and are seeking to retain a judgment for six thousand dollars and upward. To permit such a judgment to stand would be a reproach to a court of justice, unless, indeed, the plaintiff in error is chargeable with such a degree of negligence as to leave him no standing in court. This, we think, is not shown. His residence was in Iowa, but being found here he was arrested on the capias issued in the cause and thrown into prison. He employed Albion Cate, Esq., a practicing attorney of Chicago, to assist him in his defense, paying him $100. A motion to quash the capias was made by Cate, which prevailed, and Dunlap was discharged from arrest. Supposing from information derived from Cate, as he swears, that the quashing of the capias put an end to the suit, he returned to his home in Iowa. He subsequently received a letter from Cate, saying the case was not ended, but needed further attention, and demanding an additional $100. He immediately replied by mail, saying he understood the $100 already paid was to secure Cate’s services in the entire litigation, but that if'Cate required it he would send him $25 to pay him for procuring a continuance and pro-tenting his interests until he could .reach Chicago and arrange for his defense. In order to guard against the chances of miscarriage, he also wrote to another Chicago attorney, one Longeneker, asking him to see Cate, and if the latter did not intend to act for him, requesting Longeneker to obtain the papers and act as his attorney in the case. He thus supposed, as he says, that he had made complete arrangements for defending the action, and did not learn the contrary until informed by Longeneker in a letter dated December 8, 1888, two days after the judgment had been rendered against him by default for want of appearance, Cate’s previous appearance having been special and confined to the motion to quash the capias. January 5, 1884, and during the same term, plaintiff in error entered his motion to vacate the judgment and set aside the default.

Under the showing as thus made we can not say that there was any such lack of diligence on the part of plaintiff in error as to debar him from an opportunity to present his defense upon its merits. Perhaps in the exercise of the very highest degree of diligence, his motion to vacate should have been made more promptly, but it is to be borne in mind that he lived in another State, at a distance from Chicago, where the defendants in error had seen fit to arrest him; moreover, so far as appears, they had suffered no loss by the delay.

The judgment is reversed and the cause remanded with directions to the court below to vacate the judgment, set aside the default and allow the defendant to plead to the merits.

Reversed and remanded.


text:
    J. H. Tedens et al. v. J. B. Schumers.
    1. Pbepondebance of evidence. — After examining with care the entire evidence as presented in the bill of exceptions, while the court might have been better satisfied with a different result, yet the court is unable to say that the verdict is so far against the preponderance of the evidence as to make it its duty to reverse the judgment for that reason. . The evidence was so far conflicting as to present a fair question of fact for the jury and their decision should he regarded as final.
    2. Evidence involving moral turpitude — Admission oe evidence as to character. — Where defendants, to maintain their defense of accord and satisfaction to a certain due-hill given to plaintiff and held by them, gave evidence, among other things, of the plaintiff’s admissions to them and to their witnesses of the alleged larceny or embezzlement by him of their goods, and plaintiff was called as a witness in rebuttal and denied each and all of said admissions and called witnesses who, against defendants’ objection and exception, were permitted to testify that plaintiff’s general reputation for truth and veracity was good. Held, that such evidence was admissible. A mere contradiction in the testimony of two witnesses does not necessarily involve the moral character of either, and will not alone authorize the admission of evidence as to their general good character for truth; hut evidence tending to charge a witness with crime or other moral turpitude constitutes such an impeachment as warrants the admission of evidence as to the witness’ character for truth.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Bo&eks, Judge, presiding.
    Opinion filed April 15, 1883.
    Mr. Edward F. Comstock, for appellants;
    that where the verdict is manifestly against the evidence, the judgment should be reversed, cited Brown v. Kragel, 2 Bradwell, 414; Adler v. Uchtman, 10 Bradwell, 488; Brown v. Pilley, 10 Bradwell, 103.
    As there was no attempt at impeachment, it was error to admit evidence of the witness’ good reputation: Gough v. St. John, 16 Wend. 645; McBean v. Fox, 1 Bradwell, 177.
    Messrs. Minard & Skelly, for appellee.
   Bailey, J.

This was a suit in assumpsit, brought by Schumers against Tedens and Thormahlen, to recover the amount of a due-bill for $2,100, given by the defendants to the plaintiff, bearing date June 1,1879. It appears that, for a number of years prior to that date, the plaintiff was in the employ of the defendants in their store at Lemont, Cook county, 111., as a clerk or salesman, and that during that time he had left in their hands such portion of his salary as he did not use, they crediting Mm annually -with, interest thereon at the rate of eight per cent, per annum, and that on said first day of June, 1879, they figured up the amount due the plaintiff, and found it to be said sum of $2,100. For this sum the due-bill was given, payable on return of said paper to the defendants, and drawing interest at the rate of eight per cent, per annum in case said money remained in the defendants’ hands one year.

About March, 1880, the defendants claim to have discovered that goods were being taken from their store by some person, for which no account was being rendered, and that after watching for a considerable time, they satisfied themselves that the plaintiff was the guilty party; that on being charged with the theft, he admitted it and confessed that he had been stealing goods from their store, from time to time, for nearly four years; that he had kept no account of the goods taken, and could not tell the amount, but that from the best estimate the defendants were able to form, the aggregate must have been considerably larger than the amount of said due-bill; that the plaintiff thereupon offered to surrender to the defendants everything he had in the world to settle the matter, but that it was finally agreed that he should give up to them said due-bill, and that said due-bill should be received by them in full satisfaction of their claim against him for the goods stolen, and that it was surrendered to them by him in pursuance of that agreement. These facts were sworn to by the defendants, and two other witnesses were produced by them who testified to admissions by the plaintiff of said thefts, and of said settlement and surrender of the due-bill to the defendants.

The plaintiff, on the other hand, denied said thefts, and also denied the confessions sworn to by the defendants and their witnesses, and testified in substance that several years prior to the date of the due-bill he applied to one of the defendants for an increase of salary, which was refused, but that in lieu thereof said defendant agreed to allow him to take from the store, at cost, all such goods as lie might need for his own use; that all the goods taken by him were taken under that arrangement, and were paid for by him at cost price; that when the defendants charged him with said thefts he explained the arrangement under which the goods were taken by him, and that they denied that any such arrangement existed; that they demanded of him the due-bill, and that to avoid having the charge of larceny against him made public, he gave it to them on the express condition, to which they agreed, that they should make an investigation of the matter of the goods taken by him as aforesaid, and if anything was dne from him to them on account of the goods he had taken, they should apply the same on the due-bill and pay him-the residue.

On this evidence the jury found the issues for the plaintiff and assessed his damages at $2,758, the full amount of the due-bill with interest. One half of this sum the plaintiff remitted, and had judgment for the residue, viz., $1,379 and costs.

It is urged that this verdict was against the clear preponderance of the evidence. "We have examined with care the entire evidence as preserved in the bill of exceptions, and while we might possibly have been better satisfied with a different result, we are unable to say that the verdict is so far against the preponderance of the evidence as to make it our dirty to reverse the judgment for that reason. The evidence was so far conflicting as to present a fair question of fact for the jury, and their decision should be regarded as final.

Another question arose upon the admission of certain evidence, which we deem it necessary to consider more at length. The plaintiff, as part of his case in chief, by way of explaining the possession of the due-bill by the defendants, testified to the circumstances of its delivery to them as above set forth, and thereupon the defendants, to maintain their defense of accord and satisfaction, gave evidence, among other things, of the plaintiff’s admission to them and to their witnesses of the alleged larceny or embezzlement by him of their goods. The plaintiff was then called as a witness in rebuttal, and denied each and all of said admissions. He then called two witnesses as to his general reputation’ for truth and veracity, and said witnesses, against the objection and exception of the defendants, were permitted to testify that his general reputation for truth and veracity was good.

Counsel for the plaintiff attempt to justify the admission of this evidence upon the ground that the proof made by the defendants of the plaintiff’s statements on former occasions, at variance with his testimony on the trial, had a direct tendency to impeach his veracity, and thus rendered evidence of his general character in that respect admissible. In this we think they are in error. The usual mode of impeaching a witness, by proving his statements out of court variant from his testimony at the trial, is by asking him on cross-examination as to such former statements, and if he fails to admit them, to then make proof of such statements by other competent evidence. Here the plaintiff’s admissions were not proved by way of showing statements out of court variant from his testimony at the trial, but as admissions of a party to the suit and as evidence in chief in support of the issues on the part of the defendants. The contradiction was made to appear after the statements out of court had been proved, and then not from questions put to the witness on cross-examination, but from such as were put to him by his own counsel, when recalled in rebuttal.

An attempt to impeach a witness is a submission to the jury by the party attempting the impeachment of a collateral issue as to the veracity of the witness, and such issue can not be raised or submitted by the party who puts the witness on the stand. By calling the witness he assumes, or vouches, for his general good character for veracity, and he is thereby precluded from raising that question. It is for the other side, and for him alone, to determine whether that character shall be assailed, and the issue can not be forced upon him by any questions put to the witness by the party producing him.

All that can be said in this case, so far as this mode of impeachment is concerned is, that there is a contradiction between the plaintiff and the witnesses*for the defendants, as to a fact material to the issues. A mere contradiction in the testimony of two witnesses does not necessarily involve the moral character of either, and will not alone authorize the admission of evidence as to their general good character for truth. Vernon v. Tucker, 30 Md. 456. As said in Russell v. Coffin, 8 Pick. 143. “ It never was decided that if a witness was contradicted as to any fact of his testimony, either by his own declarations at other times, or by other witnesses, evidence might be admitted to prove his general good character. If this were the practice, great delay and confusion would arise, and as almost all cases are tried upon controverted testimony, each witness must bring his compurgators to support him when he is contradicted, and it would be a trial of the witnesses and hot of the action.” See also, People v. Hulls, 3 Hill, 309; Starks v. The People, 5 Denio, 103; M & R. R. R. Co. v. Williams, 54 Ala. 168; Werts v. May, 21 Penn. St. 274; Braddee v. Brownfield, 9 Watts, 124; Rogers v. Moore, 10 Conn. 13; Johnson v. The State, 21 Ind. 329; People v. Gay, 7 N. Y, 378; People v. Rector, 19 Wend. 569.

But there is another ground upon which we think the evidence of the plaintiff’s general good character for truth was clearly admissible. The evidence which had been introduced by the defendants tended to prove that the plaintiff was guilty of the crime of larceny, committed not only once, but again and again, through a period of nearly four years. The evidence consisted of the plaintiff’s confessions, and if the account given of them by the defendants’ witnesses was to be believed, it was evidence against the plaintiff of a very convincing character. The crime thus imputed to him involved him in gross moral turpitude, and was therefore a serious impeachment of his general moral character, and manifestly could not but have an unfavorable effect upon his credibility.

While the authorities are not harmonious as to whether evidence tending to charge a witness with crime or other moral turpitude constitutes such an impeachment as warrants the admission of evidence as to the witness’ character for truth, we think the better rule, and the one supported both by reason and by authorities of great respectability, is in favor of the admission of such evidence. Mr. Wharton, in his treatise on the Law of Evidence, in specifying the cases in which evidence of this character may be admitted, says: “A fortiori is this the case where the opposing party introduces, as a part of his case, evidence directly reflecting on the veracity of the witness.” 1 Whart. on Ev., Sec. 569.

In George v. Pilcher, 28 Grat. 299, the question at issue was whether a marriage between certain parties had been solemnized, and the officer by whom it was alleged that the parties were married, being called as a witness, testified to having solemnized the marriage and identified his official marriage certificate made by him at the time. The party disputing the marriage not only denied in his pleadings that it had taken place, and characterized said certificate as a base fabrication, but his counsel repeated said charges in his opening address to the jury. On the trial, the witness was subjected to a searching cross-examination, with the evident object of throwing discredit upon his testimony. The court, in holding that under these circumstances evidence of the witness’ general reputation for truth was competent, say: “The attempted disproof of the marriage and of the certificate given by the witness, was a charge upon the record, and before the jury, that he was guilty of fraud, conspiracy, forgery and perjury; and if the party calling a witness, who is thus attempted to be impeached, can not sustain him by evidence of good character for truth, we can not conceive of a ease where such evidence would be admissible.”

In Paine v. Tilden, 20 Vt. 554, the court, by Redfield, J., say: “It is now well settled, that, whenever the character of a witness for truth is attacked in any way, it is competent for the party calling him to give general evidence in support of the good character oí the witness.” In Carter v. The People, 2 Hill, 317, where, upon the trial of an indictment, a material witness for the prisoner, on his cross-examination, admitted that he had been complained of and bound over upon a charge of passing counterfeit money, it was held that in answer the prisoner was entitled to give evidence of the witness’ good character for truth.

In Davis v. The State, 38 Md. 15, the court say: “Mere contradiction among witnesses furnishes no ground, as a general rule, for admitting general evidence as to their character; though, if fraud or other improper conduct be imputed to any of them, such evidence will be received.”

"Where, on a trial for murder, the defendant gave evidence tending to show that one of the people’s - witnesses was suborned, and had been paid for his testimony, the prosecution was permitted in rebuttal to introduce testimony as to the character of the witness for truth and veracity. In discussing the nature of the impeaching testimony, the court say: “ It was as effectual an attack upon the character of the witness for truth, as if his reputation in this respect had been assailed by direct inquiries; and we can see no good reason for allowing proof of good character in "the latter case that does not apply as well to the case before us.” The People v. Ah Fat, 48 Cal. 61.

So, also, where a defendant proves that a witness called for the prosecution has been convicted for a felony, it is an assault upon the character of the witness for integrity and truth, and the prosecution may, in rebuttal, examine witnesses to prove that the reputation of the witness for truth and integrity is good in the community where he resides. The People v. Amanacus, 50 Cal. 233.

In the light of these decisions, and of the common experience of mankind as well, it seems clear that evidence tending to establish the plaintiff’s guilt of the crime of larceny, and that, too, repeated many times, was as effectual an attack upon his character for truth as any other impeaching evidence would be. If it be true that he is a man so devoid of honesty and integrity as to be guilty of such offenses, it needs no argument to show that evidence coming from him comes from a polluted source, and is not to be relied upon. The only security for'its truth is the chance, in the mind of the witness, of detection and punishment in case he swears falsely. It is bereft of the highest sanction and greatest safeguard, a good conscience and an honest purpose.

The rule undoubtedly is, that a party attempting to im peach a witness is restricted to general evidence of character, andswill no’t be permitted to prove particular acts of the witness. This is a limitation upon the right of impeachment, adopted, not because proof of specific acts may not constitute as effectnal an attack upon the credibility of the witness as proof of his general character, but solely out of consideration for the witness himself, it being assumed that, while every man should be prepared at all times to defend his general character, it would be imposing upon him an intolerable burden to require him to be in readiness on all occasions to defend or explain every act of his whole life. But where, as in this case, evidence of specific acts involving moral turpitude becomes competent and admissible as maintaining the principal issues in ,the case, it has no less a tendency to discredit the witness than it would have if admitted for that sole and express purpose; and it would be a strange and illogical converse of the rule above mentioned that would deprive the witness of the right to defend his character against proof of specific acts, where the opposite party succeeds in getting such evidence before the jury because of its competency for other purposes. Our conclusion is, that in this case evidence of the general reputation of the plaintiff was competent, and that no error was committed in admitting it.

Some complaint is made of the rulings of the court in the instructions to the jury. We are unable to find any material error in that respect. There being no error in the record, the judgment will he affirmed.

Judgment affirmed.


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    Chicago & Northwestern Railway Co. v. Village of Jefferson et al.
    1. Railroad easement in highway — compensation eor damage.— Where a railroad company acquires in perpetuity an easement in so much of a street as is occupied by the railroad, this eas'ementis a property right, and it is as much protected from unlawful invasion as any other property, and can lot he taken or damaged for public use without just compensation.
    2. What is ordinary and proper use oe highway. — Where a railroad company acquiring its easement in the highway took it subject to such rights as the public had already acquired therein, that is, subject to the right of the public to subject the street to all the ordinary and proper uses of a highway. Held, that the occupation of a considerable portion of the street for the construction of a ditch, not for the improvement of the street, but for the purpose of draining adjacent lands, is a new use of the street, for which compensation must be made in case property is damaged thereby. Asno provision has been made by the city in this case to pay the damage, the railroad company is entitled to have the construction of the ditch enjoined until some provision for its payment is made.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moban, Judge, presiding.
    Opinion filed April 15, 1884.
    This was a bill in. chancery for an injunction, brought by the Chicago and Northwestern itailway Company against the Tillage of Jefferson, Cook county, 111., a corporation organized under chapter 24 of the JRevised Statutes, and Asa F. Bradley, the village engineer, to restrain the defendants from constructing a certain ditch or drain under and across the complainant’s railway track in said village. A preliminary injunction having been granted, the defendants answered the bill, and afterward moved to dissolve the injunction, and said motion coming on to be heard upon bill, answer, and certain affidavits filed by the respective parties, was granted, and said bill was thereupon dismissed for want of equity, at the costs of the complainant. From this decree the complainant has appealed to this court.
    The bill avers, in substance, that the Chicago and Wisconsin Bailroad Company was organized under a special act of the General Assembly of the State of Illinois, approved January 12, 1851, and that by virtue of said act said company was authorized, among other things, to construct its railroad upon or across any road or highway, which the route of its railroad should intersect, but was required to restore the road or highway thus intersected to its former state, or in a sufficient manner not to have impaired its usefulness; that said company constructed a railroad from Chicago through the territory now embraced within the village of Jefferson, to Cary, a distance of thirty-eight and one half miles; that said com pany was afterward consolidated with a certain other railroad company in the State of Wisconsin, and that by the consolidation of the company thus formed with certain other railroad companies the complainant became organized; that by an act of the General Assembly of the State of Illinois, approved February 15, 1865, it was provided that the complainant, as then consolidated, might have and exercise all powers theretofore conferred by the laws of this or any other State upon any company consolidated with it; that by virtue of such consolidation said railroad running through the village of Jefferson became a part of the complainant’s road; that when said railroad was constructed and for more than'twenty years thereafter, all the natural drainage from the west toward the railroad was from a ridge, the top of which is about twd hundred feet from the road, and that no surface water flowed toward said road from any lands west of said ridge; that the complainant had constructed under its railroad two stone culverts, of dimensions sufficient to drain all the water from the adjacent property which would naturally drain or flow toward said railroad in any season; that on the west side of said ridge for a distance of nearly two miles, there is low ground, the water from which could never naturally flow or drain to said railroad; that the president and trustees of said village have constructed a large ditch from said low grounds west of said ridge along a public street of the village to where said street intersects said railroad, for the purpose of draining said lands; paying the expense of the same out of funds raised by taxation; that said ditch is between two and three miles long, with branches so constructed as to drain a territory of about five square miles; that it was not needed or claimed to be needed for the purpose of draining any waters which, before its construction, would naturally dram toward said railroad from adjacent lands; that said ditch is five feet wide at the bottom and twelve feet deep, with a one foot to one foot slope; that the complainant had constructed said railroad and put in said culverts long before the passage of said chapter 2i of the Revised Statutes, and long before the incorporation of said village, and that said railroad has been in operation ever since its construction; that said ditch was designed and constructed solely for the purpose of draining the lands west of said railroad and west of said ridge.
    The bill further avers that said president and board of trustees have determined to construct said ditch under said railroad; that the cost of putting a safe and suitable culvert under said railroad, so as to pass the water which would flow along the ditch, would be from $1,000 to $1,500; that said village has passed an ordinance providing for the construction of said ditch across the line of said railroad, and directing the village engineer, after giving the complainant certain notice, to construct said ditch across and under said railroad; that the complainant runs over said railroad at that point an average of from thirty to thirty-five freight trains daily, and also twenty-eight regular passenger trains; that the digging of the ditch through the railroad embankment, would for the time being and during the construction of the culvert be a total obstruction of the business of the complainant over said road; that it is not the design of said village to do anything more than dig the ditch, without putting in any culvert; that said village has made no assessment of the damages which would result to the complainant from the construction of said ditch in the manner proposed, nor furnished any means to compensate the complainant for such damages, and that' said ditch would result in no benefit to the complainant, but is only designed for the purpose of draining lands at a distance from said road, and in which the complainant has no interest; that the complainant is ready and willing and has repeatedly offered to construct said ditch under its road in the manner provided by said ordinance, and put in a suitable culvert, provided the same should be paid for out of the general funds of the village, in the same manner as the residue of the ditch has been paid for.
    The bill charges that said village has no legal right to construct said ditch under the complainant’s railroad for the purpose of draining lands from which the water would not naturally flow in that direction, and has no right to construct such ditch and culvert under said railroad at the sole expense of the complainant; that the village engineer has notified the complainant that he is intending to and will immediately take possession of said railroad tracks and extend said ditch under the same unless enjoined from so doing; that great and irreparable loss would result to the complainant, as well as great danger and peril to passengers on its road, if said engineer is permitted to proceed with said work. The bill prays that the defendants be enjoined from constructing said ditch in the manner above stated.
    The answer admits that when said railroad was constructed and for more than twenty years thereafter, all the natural drainage to said railroad was from said ridge, about two hundred feet west of the railroad, and that-there was no natural drainage to the railroad from the lands west of the ridge, said lands being low and swampy and having no drainage until 3aid ditch was opened; that the complainant had constructed under its railroad a stone culvert of dimensions sufficient to drain all water from the adjacent lands which naturally drained or flowed in that direction; that said village has constructed a large ditch from said low lands, for the purpose of draining the same along Diversey street, a public street or highway of the village, to where said street intersects the railroad, and that said ditch was paid for out of the general funds of the village raised by taxation; that said Diversey street was a public street or highway long before said railroad was constructed or laid through the village; that said ditch has been opened along said Diversey street down to the point where it strikes the westerly line of the railroad, and also from the easterly line of the railroad along said street to the river; that said ditch is a part of the general system of drainage established by the village; that said ditch along Diversey street is two or three miles in length, with branches, and that it drains a large extent of territory, though not to the extent of five miles square; that said ditch is five feet wide at the bottom, but only nine feet deep measuring from the railroad track, and that it has a slope of one foot in one; that the railroad and culvert were built long before the passage of chapter 24 of the Revised Statutes, and long before the incorporation of said village, and that the railroad has been in operation ever since its construction; that at the time the said railroad and culvert were built, the territory now embraced in said village was under township organization, and that the village is the successor of said town; that the village has determined to construct said ditch under said railroad; that said ditch can only be constructed by cutting through the embankment upon which the railroad tracks rest, and that such construction will be an obstruction to the complainant’s business; that it is not the design of the village to do anything more than dig the ditch under the complainant’s road, and that the village has made no assessment of the complainant’s damages, or provided any means to compensate the complainant therefor.
    Mr. B. 0. Cook, for appellant;
    as to the railroad company’s property in the easement and the right of compensation, cited Ogle v. P. W. & B. R. R. Co., 3 Houston (Del.), 267; Vassalburgh v. Somerset, etc., R. R. Co., 43 Me. 337; Learney v. Smith, 86 Ill. 391; I. B. & W. R. R. Co. v. Hartly, 67 Ill. 439; City of Shawneetown v. Mason, 82 Ill. 337; Kevins v. Peoria, 41 Ill. 502; I. C. R. R. Co. v. City of Bloomington, 76 Ill. 450.
    A city which has by law the power to regulate the grade of streets, can not change the grade in such manner as to injure private property without making compensation: City of Elgin v. Eaton, 83 Ill. 535; City of Pekin v. Brereton, 67 Ill. 477; City of Dixon v. Baker, 65 Ill. 519; City of Aurora v. Reed, 57 Ill. 30.
    Mr. Ejbancis De Peuhl and M'essi’s. Monk & Elliott, for appellees;
    that it is a lawful use of a public street to construct a sewer or drain on or under the same, cited West v. Barcroft, 32 Vt. 367; Cone v. Hartford, 28 Conn. 363; Kelsey v. King, 32 Barb. 410; Stouding v. City of Newark, 28 N. J. 187.
    Appellant’s rights in' the highway are subordinate to those of the public: The People v. R. R. Co., 67 Ill. 188; Queen v. Inhabitants of Ely, 69 E. C. L. 843; Manly v. St. Helen’s Canal and R. R. Co., 2 H. & N. 840.
    Such grants being without consideration and in derogation of common rights, are to be construed most strongly against the grantee: Cayuga Bridge Co. v. Magee, 2 Paige Ch. 119; Mohawk Bridge Co. v. Utica, etc., Bridge Co., 6 Paige Ch. 554; Barrett v. Stockton R. R. Co., 40 E. C. L. 208; Gildart v. Gladstone, 11 East, 675.
   Bailey, J.

At the time of the construction of that part of the complainant’s railroad in question in this suit, Diversey street was one of the highways of the town of Jefferson, then under township organization, and so remained up to the time of the incorporation of the village of Jefferson, embracing the same territory, under chapter 24 of the Bevised Statutes. The charter of the Chicago and Wisconsin Bail-road Company, the corporation by which the railroad was built, authorized that company to construct its railroad upon or across any road or highway which the route of said railroad should intersect, but required it to restore the road or highway intersected to its former state, or in a sufficient manner not to have impaired its usefulness. Under this legislative authority, said railroad was constructed across Diversey street, and it is not claimed that the highway was not at that time restored to its former state as required by the charter. The Chicago and Wisconsin Bailroad Company, and after the consolidation, its successor, the complainant, thereby acquired in perpetuity an easement in so much of the street as was occupied by the railroad. This easement is a property right, and it is as much protected from unlawful invasion as any other property; nor can it be taken or damaged for public use without just compensation.

The vital question in the case is whether the construction of said ditch, in the manner contemplated by the defendants, will constitute a taking or damaging of the complainant’s property, within the meaning of the constitution. The railroad company, in acquiring its easement in the highway, took it subject to such rights as the public had already acquired therein, that is, subject to the right of the public to subject Diversey street to all the ordinary and proper uses of a highway. Is the construction of said ditch such a use?

As is alleged in the bill and admitted by the answer, the ditch is being dug for the purpose of draining a large tract of low and marshy land, and is only a part of a general drainage system which the village authorities have adopted and are seeking to carry out. It is not pretended that it is in any way necessary to the improvement of the highway, or to its 'ordinary or appropriate uses, nor that it is being constructed for such purpose. Even if the village has the authority under the statute to adopt and carry out a' general drainage system, and to occupy a portion of a public highway for its drain — a question which it is not now necessary for us to determine — it seems clear that such occupancy of the highway is outside of and foreign to the proper uses of the highway as such, and subjects all property thereby taken or damaged to a new and additional burden.

A. very similar question arose in City of Shawneetown v. Mason, 82 111.' 337. There the city raised the grade of a certain street, not with the view of improving the street, but to construct out of it a levee for the protection of the city against inundation from the Ohio river. The embankment was still used as a street, but in a suit by an adjoining property owner to recover damages resulting to his property from such change of grade, it' was held that, while the city had a right to elevate the grade of its streets, as it might think proper, the erection of the embankment was not a mere elevation of the grade, but an appropriation of the street to a new use, legitimate enough in itself, but still a use not implied from the laying out of the street; and therefore if the plaintiff’s property had been damaged by the erection of the embankment, he was entitled, under the constitution, to just compensation.

We see no essential difference in principle between the case above cited and the present case. If the elevation of the grade of a street, so as to construct out of it a levee, constituted a new use not implied from the laying out of the street, it seems very clear that the occupation of a considerable portion of a street for the construction of a ditch, not for the improvement of the street, but for the purpose of draining adjacent lands, is a new use of the street, for which compensation must be made in case property is damaged thereby.

That the property of the complainant will be damaged by the construction of the proposed ditch, is beyond question. The ditch is to be five feet wide at the bottom and at least nine feet deep and twenty-three feet wide at the top. This ditch the defendants, as they admit, propose to excavate under and across the railroad, and leave open without constructing any culvert or otherwise restoring the road-bed and track. It is alleged in the bill — and the allegation is in no way disproved —that such restoration of the railroad will involve an expenditure of from $1,000 to $1,500. To this extent at least, the property' of the complainant will be damaged. To pay this damage no provision has been made, and until some provision for its payment is made, the complainant is entitled, upon the case made by the bill and admitted by the answer, to have the construction of the ditch across the railroad enjoined. The court erred in dissolving the injunction and dismissing the bill, and the decree will therefore be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.