text:
    Mahala Sheets, Administratrix, Appellant, v. George A. Sheets, Appellee.
    Gen. No. 5290.
    Landlord and tenant—when recovery cannot he had for use and occupation. If possession of premises is taken under a contract to purchase, which is not fulfilled, no recovery can he had for use and occupation until after written demand for possession as required by statute.
    Assumpsit. Appeal from the Circuit Court of Stark county; the Hon. L. D. Putebbaugh, Judge, presidifig. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.

      Keens & Fling, for appellant.
    A. P. Millee, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit brought by Mahala Sheets, administratrix of the estate of William Sheets, deceased, to recover from George A. Sheets rent for the use and occupation of forty acres of land for six years from March 1, 1902, to March 1, 1908, and for pasturage of stock of George A. Sheets by William Sheets. The court instructed the jury that there could be no recovery for rent, and the jury returned a verdict for $20 in favor of plaintiff for the pasturage. The plaintiff appeals.

The record shows that in 1886, William Sheets made a contract for the sale of eighty acres of land in Stark county to his sons, Philip A. Sheets and George A. Sheets. The purchasers went into possession of the land under the contract, and divided it between themselves, each taking forty acres. The purchasers did not make the payments required by the contract, and Philip Sheets in 1892 abandoned his tract. George A. Sheets built a house, cleared off brush, built fences and made other improvements on his tract. After Philip surrendered his tract, William Sheets repeatedly verbally demanded of George that he pay rent or get off the land, but the purchaser declined to pay rent and remained in possession until March, 1908. On March 2, 1908, William Sheets caused a notice in writing, to be served on George demanding immediate possession of the land, and brought a suit in forcible detainer and recovered possession. A number of witnesses testified for appellant, that when the father said to George he would have to get off or pay rent George replied he would see what he would do about it; other witnesses testified that George replied he would never pay rent. On the trial of the forcible entry suit, William Sheets testified that he never had any contract with George to pay rent and that he was holding under a bond for a deed. It is clear from all the evidence that appellee was not a tenant, but was in possession under the contract for purchase.

Under the third paragraph of section 1 of chapter 80 of the statute, the Landlord and Tenant Act, the owner of land may sue for, and recover rent for use and occupation of land, when possession of the land has been obtained under an agreement for the purchase of the land, and the right to possession is terminated by non-compliance with the agreement and possession is refused to be given upon demand, made in writing, by the party entitled thereto. No notice such as is required by the statute was served demanding possession before March 1, 1908. It clearly follows that no recovery could be had for use and occupation before that date, and the jury were properly instructed to find for the appellee upon that issue.

It is insisted that the court erred in admitting in evidence the bond for a deed because there was no special plea of set-off. It was not offered by way of set-off, but to show that the appellee was not liable for rent under the general issue which denied the truth of the special counts.

It is also contended that the court erred in refusing to admit a notice, served on appellee in December, 1907, terminating a tenancy from year to year and demanding possession March 1, 1908. If this notice had been admitted still the court would necessarily have given the peremptory instruction regarding rents and there was no harmful error. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Pallace L. Fisher, Appellant, v. City of Geneseo, Appellee.
    Gen. No. 5293.
    1. Instructions—when as to preponderance of evidence erroneous. An instruction upon this subject, held, erroneous, in that it omitted the element of the number of witnesses.
    2. Instructions—as to obligation of city with respect to its streets, erroneous. The law requires a city to keep its streets reasonably safe for travel and an instruction is erroneous which tells the jury that in order for a person injured by falling upon a street it must be shown that the street was unreasonably dangerous, places a heavier burden upon such person than the law requires.
    3. Instructions—must not give undue prominence to particular evidence. An instruction is erroneous which gives undue prominence to particular evidence.
    4. Instructions—must not be argumentative. An instruction is not proper to be given which is argumentative in form.
    Action in case. Appeal from the Circuit Court of Henry county; the Hon. Embry C. Graves, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    Harry E. Brown, for appellant.
    Henry Waterman, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is a suit in case brought by Pallace L. Fisher to recover damages from the city of Geneseo for personal injuries averred to have been suffered because of the negligence of the defendant. The declaration contains four counts. Each count avers that the city was negligent in grading Wyanet street in such a manner that there was a ditch about eighteen inches deep across the entrance to an alley in a certain block in the city, by reason whereof the plaintiff, while in the exercise of due care and while riding in a buggy that was being driven into the alley was thrown from the seat and injured. Three of the counts aver that the plaintiff was thrown from the seat of the buggy upon the ground; the other count avers that plaintiff was thrown from the seat into the bottom of the buggy. Each count avers that notice was given to the city as required by the statute. On the trial a verdict was returned in favor of the defendant, and the plaintiff has appealed to this court.

The record shows that the appellant is a woman of the age. of sixty-five years and lives with her foster-son in a house fronting west on Wyanet street, which runs north and south. An alley runs through the block nearly east and west on the south side of her residence ; the direction of the alley from- Wyanet street is south of east. Another alley runs from the first described alley in the rear of appellant’s lot to the next east and west street on the south. Appellant uses the alley from Wyanet street in going to and from the barn on the rear of her lot. About two months before the date of the accident, the appellee graded Wyanet street across the entrance to the alley with a road grader forming a ditch about nine feet west of the sidewalk, and took out a box culvert about ten inches wide which had been across the approach to this alley from the street, leaving a steep bank somewhere between twelve and eighteen inches high angling slightly across the entrance to the alley, with a gradual incline from the center of the street to the terrace on the west side of the ditch except that appellant’s evidence tends to prove that where the box was taken out, there was a square drop of four inches on the street side of the ditch. On August 8, 1908, about six o ’clock in the evening appellant with her foster-son, Orrin Fisher, had been to a pasture southwest from her residence in a buggy drawn by one horse. They came back on Wyanet street and attempted to drive into the alley. It had been raining, and when the horse stepped in the steep bank it slipped and swerved to the south causing one wheel of the buggy to drop into the depression and then to raise up on the bank as the other wheel went into the depression. The son was driving, with appellant sitting on the left side holding onto the seat with both hands. The irregular motion of the buggy caused appellant to slip oft the seat onto a box in the bottom of the buggy, from which she claims to have suffered injuries to the sciatic nerve. The evidence shows that appellant had suffered from rheumatism and had been lame and crippled for many years, and it is apparent that the accident is not the cause of much of the injury of which she now complains, although she may be entitled to some damages if the city was negligent and she was in the exercise of ordinary care, but we express no opinion regarding, the merits of the case since it must be reversed because of error in the appellee’s instructions. The city had notice of the condition of the street and the appellant knew the condition at the place where she was injured. One of the questions involved in the case is whether appellant has by a preponderance of the evidence shown that she was in the exercise of due care. Appellee contends that in as much as appellant knew of the condition of the street, it was her duty either to have got out of the buggy before her son attempted to drive into the alley off Wyanet street, or that they should have driven in from the east end of the alley or by the alley from the south to the rear of her lot.

The twelfth instruction given on the part of appellee told the jury, “You are instructed that the preponderance of the evidence in a case is not alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of the evidence is you should take into consideration the opportunities of the several witnesses for seeing, etc * * The instruction omits the number of witnesses, as one of the circumstances to be considered by the jury in determining on which side the preponderance of the evidence should be. Elgin, J. & E. R. R. Co. v. Lawlor, 229 Ill. 621; C. U. T. Co. v. Hampe, 228 Ill. 346; Ill. Com. Men’s Assn. v. Perrin, 139 Ill. App. 543; Sullivan v. Sullivan, 139 Ill. App. 378.

The twenty-first instruction given on the_ part of appellee, told the jury that before they could find a verdict for the plaintiff it must find from a preponderance of the evidence that the plaintiff suffered injuries caused by a defect in the street, “that said defect left the street in an unreasonably dangerous condition and that the defendant did not contribute to said injuries by any negligence on her part; that the city authorities had knowledge of the defects in time to have repaired the same before the accident happened * * * unless you find all the foregoing facts by a preponderance of the evidence you should find the defendant not guilty.” This instruction was clearly erroneous. If the street was in a dangerous condition that was sufficient. The law requires a city to keep its streets reasonably safe for travel, and if the city negligently left its street in a dangerous condition that was sufficient negligence to make the city liable for any injuries that might be sustained by reason thereof, if the party injured was in the exercise of ordinary care. The instruction in telling the jury that the defendant must be found not guilty unless the appellant prove by a preponderance of the evidence that the street was unreasonably dangerous, placed a heavier duty on appellant than the law requires.

The twenty-fourth instruction given on the part of the appellee told the jury that if they believed from the evidence that the plaintiff, without material inconvenience to herself, could have got out of the buggy she was riding in in front of her residence before the buggy passed over the ditch, and she did not do so, then the jury should take that fact into consideration in passing on the question of whether she was using ordinary prudence for her own safety. The twenty-fifth instruction told the jury that if they believed from the evidence that the plaintiff without material inconvenience to herself conld have avoided passing over the ditch by the use of other public and safe ways of reaching her destination, then they are instructed to take that fact into consideration as to whether she was using ordinary care for her own safety. The street and alley were open for public travel and the alley was traveled by many teams every day, and the city had knowingly left them in the condition they were in. Appellant was not required to go around some other way. These instructions told the jury they might convict her of negligence and acquit the city because she did not either get out of the buggy or go some other way. It was a question for the jury to say whether she was in the exercise of reasonable care in driving into the alley, from all the evidence in the case. These instructions were erroneous in that they gave undue prominence to those portions of the evidence by specially directing the attention of the jury thereto, and so being liable to mislead the jury and induce it to give undue weight to the parts singled out. Eckels v. Muttschall, 230 Ill. 462; Village of Warren v. Wright, 103 Ill. 298; Morehouse v. City of Dixon, 39 Ill. App. 107.

The tenth instruction told the jury that if the injuries complained of were occasioned by the slipping of the horse, and that the conduct of the city in no way contributed to such slipping, then the verdict should be for the defendant. If the ditch had not been there the slipping of the horse might not have caused the injury and the ditch into which it went would be the proximate cause of the injury. It was a question for the jury to say from all the evidence whether the injury was caused by the negligence of the city or by some other cause.

The twenty-ninth instruction is:

“You are instructed that what constitutes ordinary care depends upon the circumstances of each particular case; that when the circumstances are such that an ordinarily careful and prudent person would take greater precautions for his own safety than under less threatening circumstances, the greater degree of caution would be ‘ordinary care.’ While the circumstances in which a person is placed may differ and require the doing of different things for his personal safety and call for effort and circumspection proportionate to the known danger, and while such care demanded is in law characterized as ‘ ordinary care, ’ yet the exercise of ordinary care as required by law in greater danger requires the exercise of more prudence and care than would be required under less threatening circumstances; and in this case, unless you find from a preponderance of the evidence that the plaintiff at or before the time of the injury complained of, was in the exercise of such care and caution for her own safety, as was proportionate to the danger to which she then knew, or by the exercise of ordinary care and caution she would have known that she was exposed, you should find the defendant not guilty.”

This instruction should not have been given because of its argumentative nature.

It is also insisted that the court erred in refusing' instructions requested by appellant. The jury were fully instructed in the given instructions and there was no error in refusing proper instructions the substance of which was given in others, but many of the refused instructions were erroneous and properly refused.

There are a multitude of other questions raised concerning the evidence, the examination of witnesses and the conduct of counsel, which we do not discuss, as we do not find any merit in them, and to discnss all the sixty-two questions raised would unreasonably prolong the opinion. The judgment is reversed because of error in the giving of instructions requested by appellee.

Reversed and remanded.


text:
    O. F. Peterson, Appellant, v. J. A. Emery, Appellee.
    Gen. No. 5295.
    1. Negotiable instruments—burden to show bona fldes of transfer. The assignee of a negotiable instrument before maturity is deemed prima facie to be a holder in due course; the burden of proof to show the contrary is upon the party alleging it.
    2. Negotiable instruments—what does not charge assignee with notice of equities. To constitute a notice of infirmity in a negotiable instrument, the person to whom it is negotiated must have had actual notice of the infirmity or defect or knowledge of such facts that his knowledge in taking the instrument amounted to bad faith.
    3. Alteration oe instruments—how question determined. Held, error for the court to instruct the jury to determine the fact of whether an unauthorized alteration had been made from an inspection of the instrument itself; such question should be determined by the jury from such inspection and from all the evidence in the cause.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lake county; the Hon. D. L. Jones, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    Charles E. Lauder, for appellant; Charles H. King, of counsel.
    Cooke, Pope & Pope, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

O. F. Peterson brought suit before a justice of the peace against J. A. Emery to recover $40. The case was appealed from the justice of the peace to the County Court. In the County Court there was a verdict and judgment for the defendant, and the plaintiff appeals.

The suit was brought upon an instrument in writing, in the following words:

“$40.00
December 23—1907 I Promise to Pay
to F. D. Lee or bearer 20 January 1908 Forty Dollars for value received.
Johs" A. Emery. ’ ’

It is written with an indelible lead pencil, on a piece of paper about five inches by three, said to have been* torn out of a memorandum book, and was indorsed by the payee. The plaintiff sues as indorsee. The appellee presented several defenses: (1) that the instrument was procured by fraud and circumvention; (2) that the instrument was not a negotiable instrument when executed by him, but that the note had been materially altered without his knowledge or consent by the insertion of the words, “or bearer” since its delivery; (3) that the indorsee was not the holder in due course; (4) that there was no consideration for it.

The record shows the note was given under the following circumstances. The payee of the note traded a tombstone valued at $110 to appellee for a horse valued at $90 and $20 in cash. There is evidence tending to show that there was a written warranty given as to the horse and that, after the payee received the horse, he discovered the horse was not as warranted but was older than described in the warranty and would run away and kick, and that the appellee and the payee afterwards met, and that the payee gave the note to settle their differences. The appellee contends, however, that he gave the note to the payee on an agreement that the payee was to sell the horse for not less than $100 and then return $10 and the note to the payee, and if the payee could not sell the horse for $100' he was to return the horse to the payee, who would sell the horse and pay to the payee $90 and receive Ms note back. On the statement of appellee it is difficult, however, to see why he gave the note, as under’ Ms statement he never was to pay anytMng on. it. There is no proof whatever in the record that the instrument was procured by fraud and circumvention. The court instructed the jury m the second instruction given at the request of appellee that “if you find from the evidence that the said Lee obtained the note in question under such circumstances as amount to a fraud or when he negotiated it, if you find that he did, he did so in breach of faith, then you should find for the defendant.” The fraud that will defeat a note in the hands of an indorsee in due course is fraud and circumvention; that is some trick whereby the signature of the maker is obtained to a promissory note when he does not know that he is signing a note. The maker of the note in this case admits that he knew that he was signing a note, and it was error to give tMs in.struction, because there was no evidence to base it upon.

The evidence introduced by the appellee that the appellant was not the holder in due course before maturity was an affidavit, made by the appellant October 10, 1908, for a continuance in the County Court, in which the appellant stated that the payee was a material witness and that if he was present he would testify, that he sold said note for a valuable consideration to appellant on the 25th of January, 1908; and the evidence of appellee that on the evening of the twentieth day of January—the day the note became due— the payee saw the appellee and demanded payment on the note; that appellee told the payee he had not done as he agreed and he would not pay it and that he told appellee that if he did not pay it, he would sue him. Appellant attempted to explain the affidavit by testifying that he did not read it, and that he. intended to state December 25 or about then as the day the payee would testify the note was indorsed to him. Appellant also testified that about the time the note became due he handed it to the payee to collect for appellant.

The maker of the note testified that the words, “or bearer” were not in it when he executed it and the saíne were never inserted with his consent. The payee was not a witness, but a son of the payee testified that he could not say for sure that the words “or bearer” were written when the balance of the note was written, but that he read the note when Emery had signed it, and does not think there are any words there that were not there at the time the note was signed, and that the note was indorsed to appellant the day after Christmas, 1907. It was a question of fact for the jury to say under this, testimony whether the note had been altered since its delivery.

Appellant testified that the note was indorsed the day after Christmas, 1907, and the words ‘ ‘ or bearer ’ ’ were there when he got it. To render an instrument negotiable it “must be payable to the order of a specified person or to bearer.” Par. 4, sec. 1, of the Negotiable Instrument Act; Session Laws 1907, page 403. Section 8 of the Negotiable Instrument Act defines an instrument payable to order: “The instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order.” If the instrument when executed was “I promise to pay to F. D. Lee” without being payable to his order or to bearer it was non-negotiable, but yet a suit could be maintained on it in the name of the holder under section 18 of the Practice Act. There being a conflict in the evidence as to whether the words “or bearer” were in it when executed, we express no opinion as to whether the instrument was negotiable or non-negotiable, that being a question of fact for the jury under proper instructions.

If the words “or bearer” were not in the instrument when it was signed and delivered then it was nonnegotiable and was subject in the hands of appellant to. any defenses that the maker had against the note, if the suit had been brought by the payee. If the instrument was negotiable when delivered then the law presumes that it was indorsed in due course before maturity, and that the indorsee had no notice of any infirmity in the instrument and that he took it in good faith and for value. Sec. 52, Neg. Inst. Act. The fourth instruction given on the part of appellee required the plaintiff to prove by a preponderance of the evidence that the note was assigned to him in due course for a valuable consideration without notice of any defense. The holder of a negotiable instrument is deemed prima facie to be a holder in due course. Sec. 59 of Neg. Inst. Act. The instruction erroneously places the burden upon appellant of proving that he was a holder in due course.

The seventh instruction told the jury that if the consideration of the note had failed then they should find for the defendant unless they find from the evidence the appellant purchased the same before due. The law is that before the defense of failure of consideration could be sustained the jury must believe from a preponderance of the evidence either that the appellant purchased the same after the note became due or that the appellant purchased the same in bad faith and that there was a failure of consideration.

Instruction number six tells the jury that if they believe from the evidence that the plaintiff before he purchased the note as an ordinarily prudent man had reason to believe from the circumstances brought to his knowledge before he purchased it, that the defendant claimed to have a defense to the note, that the plaintiff is not an innocent holder thereof. This is in conflict with section 56 of the Negotiable Instrument Act, which provides, that to constitute a notice of infirmity in an instrument the person to whom it is negotiated must have had actual notice of the infirmity or defect, or knowledge of such facts that his knowledge in taking the instrument amounted to bad faith.

The tenth instruction told the jury that if they find from the evidence that the words “or bearer” were interlined after it had been signed “then before the plaintiff can recover, he must show by a preponderance of the evidence that said words were so interlined or written in by and with the assent of the defendant, and in determining the ■ question as to whether said words were so written in or interlined you are at liberty to inspect said note and determine from said inspection alone in the absence of other satisfactory evidence.” The question whether there had been in fact an alteration is one for the jury to determine from the instrument in connection with the explanatory evidence introduced by the parties, and it was error to submit the question to the jury to determine from a mere inspection of the paper itself. 1 Encyc. of Ev. 822. The court should not have told the jury to ignore other evidence even if it was not satisfactory.

Where a negotiable instrument has blemishes upon it, the burden of proof that the blemish was on it when it was executed is on the holder, and the jury in determining that question should consider all the evidence in the case bearing upon that question. 2 Am. & Eng. Encyc. of Law, 272, 2d ed. The ninth instruction is subject to the same criticism as the tenth. Because of the errors in the instruction given at the request of appellee the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Alfred Duckworth et al., Appellants, v. Thurman H. Francis et al., Appellees.
    Gen. No. 5296.
    1. Appeals and errors—upon what assignments cannot he predicated. A party cannot complain of the failure of the court to assign dower to a widow if such widow does not complain and such failure hy the court does not affect such party.
    2. Administration oe estates—effect of setting aside administrar tor’s sale of real estate. If a sale by an administrator to the widow of the deceased owner is set aside, such widow becomes entitled to payment of the claims which become liquidated and discharged as the result of the purchase by her.
    Bill to set aside deed, etc. Appeal from the Circuit Court Of Stark county; the Hon. L. D. Puterbaush, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed March 11, 1910.
    Statement hy the Court. Alfred Duckworth and others, children and heirs at law of Henry Duckworth, deceased, filed an original bill to set aside an administrator’s deed made to Eozelia Duckworth, together with a deed made by Eozelia Duckworth to Thurman H. Francis, and praying for a partition and an assignment of dower to Eozelia Duckworth in the property described in said deeds. Thurman H. Francis and Eozelia Duckworth answered the original bill, and filed a cross bill praying that if the deeds be held void, then that the court direct a re-sale by the master in chancery and that the proceeds be paid to the cross-complainants.
    The original bill alleges that Henry Duckworth was the father of the first eight named complainants and the grandfather of the two last named complainants and that he died intestate, in Stark county, seized in fee of an estate of homestead of the value of $1,000, in the south half of lot 23, and all of lot 24, in block 2, in Castle’s addition to the town of Wyoming, in Stark county, which real estate is of the value of $4,000; that on May 4, 1905, William B. Sandham was appointed administrator of the estate of Henry Duckworth, and that afterwards on May 15, 1906, the administrator filed in the County Court of Stark county a petition for an order to sell said homestead to pay the debts of the deceased, to which petition the complainants and Bozelia Duckworth, the widow, were named defendants ; that on May 15, 1906, a summons returnable to the July term was issued to the sheriff of Stark county against' the defendants therein named, and was returned by the sheriff served on all the defendants except Matilda Eagelston, Henry Duckworth and Leroy Duckworth; that on May 15, 1906, a summons for Matilda Eagelston, returnable to the July term, was issued to the sheriff of Cook county, which was returned by the sheriff of Cook county duly served; that an affidavit of non-residence was made as to the defendants, Henry Duckworth and Leroy Duckworth, and publication and posting of notices was made as to . them; that at the August term, 1906, the complainants in this suit were defaulted for failure to answer the petition of the administrator; that an order for the sale of the real estate to pay debts was entered and the sale was thereafter advertised, and said homestead was sold by said administrator to Bozelia Duckworth for the sum of $1,000 and a deed executed by the administrator conveying said homestead estate to her, and that thereafter a final report was made in said estate and the administrator discharged; that thereafter Bozelia Duckworth by warranty deed for the consideration of $1,900 conveyed said real estate to Thurman H. Francis, wherein the grantor released her homestead; that Bozelia Duckworth thereafter departed from the state of Illinois, and abandoned her homestead, and that Francis is in the possession of the whole of said premises claiming to own the same; that neither dower nor homestead has ever been set off to the widow Bozelia Duckworth; that no other summons was ever issued out of the County Court in said proceedings and that said summonses were void as to the complainants; and that the decree of sale, the sale and conveyance based thereon, are void and a cloud on complainants’ title to said homestead estate in said premises; that Bozelia Duckworth was the owner of all interest in said real estate except the estate of homestead of the value of $1,000 at the time she conveyed said premises to Francis, and the record of the deed to Francis so far as it purports to convey the homestead is a cloud on the title of complainants thereto; that Francis owns all of said premises except the estate of homestead above described, and each of the complainants owns an undivided ninth part of said estate of homestead of the value of $1,000, except Henry Duckworth and Leroy Duckworth, who own together an undivided one-ninth of said homestead estate, and that the complainants’ interests are subject to the right of dower of Bozelia Duckworth therein. The bill prays that the deed may be set aside as clouds upon the complainants’ title and that partition may be made, and said widow’s dower may be set off to her. Copies of the summonses described in the bill and the returns thereon are attached as exhibits. A demurrer to the bill was overruled, and the defendants answered admitting the allegations of the bill, except the allegations of the invalidity of the summonses and of the deeds, which are denied, and also stating that complainants have no right or interest in the estate of homestead in said premises, and insisting that the administrator’s deed is valid and the proceedings on which it is based are in due and legal form. The answer also stated that the personal estate of Henry Duckworth amounted to $236.75 and that the homestead was sold for $1,000, making the total estate of the deceased $1,236.75; that there is a widow’s award of $810; that claims were allowed for funeral expenses and other debts amounting to $394.52 and that the costs of administration were $165.75, making a total indebtedness of $1,327.27; that no other estate came into the hands of the administrator, and a sale of said homestead estate was necessary to pay debts, and the answer denies that complainants are entitled to any relief. The defendants in the original bill also filed a cross-bill alleging that Henry Duckworth in his lifetime was the owner in fee simple of all the real estate described in the original bill, and that on April 11, 1904, he conveyed said premises to his wife Eozelia Duckworth, and that at the time of such conveyance Henry Duckworth and his wife Eozelia occupied the premises as their homestead, and in consequence thereof the estate of $1,000 was not conveyed to the wife; that Henry Duckworth and Eozelia had no children but that Henry Duckworth had children by a former marriage, who are the defendants to the cross-bill but none of whom lived with Henry Duckworth, and that all said defendants were of legal age at the time of the conveyance of Henry Duckworth to his wife. The cross-bill then sets up the same statement are set forth in the original bill and in the answer to the original bill, and the same facts with reference to the sale to pay debts, etc., and the conveyances described in the original bill. It alleged that among the claims against the estate of Henry Duckworth is the of facts concerning the estate of Henry Duckworth as widow’s award of $810 and the claim of Eozelia Duck-worth for $366.52, of which claim $200 was for funeral expenses paid by her, and there was also added the claim in favor of undertaker Holgate for $28, and that the personalty appraised at $219.75 was taken by the widow on her award, and there was only $17 of other personal estate; that the cross-complainant Eozelia bid in the estate of homestead at the administrator’s sale for $1,000 but did not pay any money to the administrator for the reason that the estate still owed her $193.75 balance of her award and claims allowed after the $1,000 and the personal estate were exhausted,- that she paid the administrator $193.75, being the amount required to pay the Holgate claim and the costs of administration, and there is still a balance due her of $133.52; that the claims allowed against the estate are just and have not been paid except as above set forth; that the said Eozelia Duckworth conveyed the premises to Francis by a warranty deed and is bound by her covenants of warranty and if the administrator’s deed and sale are void she will be bound to pay her grantee $1,000 and costs of suit and the claims in the County Court would all remain unpaid; that when she conveyed said premises to Francis she gave him security in the sum of $1,000 in order to protect him against any suit or loss by reason of any suit on the part of the complainants, which security is still held by Francis; that if such sale and conveyance should be set aside the cross complainants are entitled to affirmative relief by the court ordering a re-sale of the homestead for the purpose of paying the debts allowed by the County Court and the costs of administration in the estate of Henry Duckworth; and prays accordingly. The defendants to the cross-bill demurred to it; the demurrer was overruled and the defendants abiding by the demurrer, a decree was entered that the sale of the estate of homestead was null and void for the reason that the parties had not been served with legal process as required by the statute and that the administrator’s deed to Eozelia Duck-worth and the deed of Eozelia Duckworth to Francis were void, and that the claims of Eozelia Duckworth, for her widow’s award and for money paid out and allowed by the Probate Court, have not been paid dr satisfied except by said sale and turning of the amount bid by her in payment of her claim, and that she received no money in payment of her claims and that she is. legally liable on her covenants of warranty to Francis and also on account of the security given by her to Francis to protect him. The decree further finds that the estate of homestead in said premises is vested in the complainants and that the claims of Rozelia Duckworth have not been paid and that the estate of homestead should be sold and the proceeds applied towards the payment of the claims of Rozelia Duckworth and the undertaker as allowed by the County Court and directs that said estate of homestead be sold, etc.
    The complainants in the original bill appeal from the decree, and assign for error, that the court erred: (1) in overruling the demurrer to the cross-bill; (2) in refusing to decree partition and assignment of dower as prayed for in the original bill; (3) in finding that the claims allowed in the County Court had not been paid and in ordering a re-sale to pay debts, and (4) in dismissing the original bill.
    Y. Gr. Fuller, for appellants.
    A. P. Miller, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The bill prays to have an administrator’s deed of real estate that was owned by Henry Duckworth at the time of his death, with a deed made by the grantee in the administrator’s deed of the same premises to Thurman H. Francis, set aside on the ground that the administrator’s sale was void, because of want of jurisdiction of the parties, the statute requiring summons in such proceedings to be made returnable to the first term after the petition is filed unless less than ten days shall intervene between the filing of the petition and the first day of the succeeding term. The petition was filed May 15, 1906, and the summonses were made returnable to the July term, whereas they should have been to the June term.

The court found that the process was void, that the County Court did not obtain jurisdiction of the parties in the proceeding to sell real estate to pay debts, and decreed that the deeds were void and found the title of the homestead estate of Henry Duckworth to be in the complainants in the original bill, who are also .the defendants in the cross-bill.

The court found for the complainants in the original bill all that they prayed for in their bill except that the court refused to decree partition and did not order the assignment of dower to the widow. No question as to the jurisdiction of this court has been raised by either appellants or appellees. While the appellants argue that the court erred in not ordering the assignment of dower which the widow is entitled to after she had abandoned the homestead, yet they cannot well be heard to raise the question as the widow acquiesces in the decree, and the failure to assign dower does not injure the appellants. The appellants by none of the assignments of error raise any question concerning the costs. They have obtained all and more than they claim, so far as the title is concerned, and there is nothing for them to appeal from in that regard. Gray v. Jones, 178 Ill. 169; Fields v. Coker, 161 Ill. 186. The court did not decree partition, because it found that the debts of Henry Duckworth had not been paid, and decreed that the estate of homestead of Henry Duck-worth of which the fee simple title was in Henry Duckworth, and which the widow had abandoned, should be sold to pay the debts. The demurrer admits that the widow had an award of $810 and a claim of $394.52 for funeral expenses and other claims paid by her, which the County Court had allowed, on which she had only received $219.75. When the deed to her was set aside for which she had paid by crediting the purchase money on her award and claims allowed, equity in setting aside her deed would hold that her claims were not paid. She is not asking to be subrogated to the rights of other parties but only that her just claims allowed against the estate be paid. The widow received from the sale neither the land nor any proceeds thereof, and when the sale is set aside her claims remain undischarged. Lagger v. Mutual Loan & Building Assn., 146 Ill. 283; Ebelmesser v. Ebelmesser, 99 Ill. 541. It is a maxim of equity that he who comes into equity for relief must do equity. It would be unconscionable to set aside the administrator’s deed and find at the same time that the claims of the widow, the purchaser of the property, had been paid by the making of the deed when she had received nothing.

The court properly decreed a re-sale of the property to pay the claims of Bozelia Duckworth. We are of the opinion, however, that the court erred in dismissing the original bill and in decreeing costs against appellants, in as much as the deeds were held to be void under that bill and the title was found to be in appellants, subject to the payment of the debts, and appellees do not question the title of appellants.

So much of the decree as dismisses the bill at their costs is reversed; the remainder of the decree is affirmed ; and the cause is remanded with directions that the costs in the trial court be paid out of the first proceeds of the sale, and the remaining proceeds be applied so far as required to the payment of the claims of Bozelia Duckworth, and the remainder, if- any, divided amongst the complainants according to their respective interests.

Affirmed in part, reversed m part, and remanded with directions.


text:
    Emil W. Schmeling et al. v. Rockford Amusement Company et al. Andrew Ashton, Appellant, v. Sosman & Landis Company et al., Appellees.
    Gen. No. 5299.
    1. Corporations—who cannot hind. The secretary of a corporation has no implied power to bind it for a money obligation.
    2. Application op payments—how made in equity. Where a general payment made upon a building contract is not applied by the parties upon any specific part of the account, a court of equity may apply the payment upon the contract so as to include an item for extra work for which the creditor would not under the contract he entitled to a mechanic’s lien, thus giving him the security of a mechanic's lien upon the amount remaining unpaid.
    3. Mechanic’s liens—lohat stihject to. An asbestos curtain and scenery placed in a building pursuant to. the terms of a lease in order that the same might he used as a theatre, it appearing that such equipment was intended to be permanent, are properly chargeable with a mechanic’s lien.
    Bill in chancery. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    David D. Madden, for appellant.
    F. E. Carpenter and E. M. St. John, and A. E. Fisher and H. B. North, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

On October 26,1908, Andrew Ashton, the owner of a building known as the 1 ‘skating rink,” hut at that time used as a garage, situated on lot three, block thirteen, of the town of West Bockford, leased to the Bockford Amusement Company at a rental of $125 per month the building and premises for a term of five years commencing December 1, 1908, to be used “for a theater and other amusement purposes, and no other.” The lessee was to be allowed the privilege of making such necessary changes in said building as would be required to equip it for the purposes of a theater and the lessor was to allow to the lessee the sum of $650 to be deducted from the rents at the rate of $35 per month, to be used in making such changes and equipment. The Amusement Company entered into possession, remodeled the building and equipped it with the necessary scenery, including electrical apparatus. The amusement company contracted obligations of about $5,000 in remodeling and fitting the building for a theater, on which it paid about $3,000 and failing to meet its obligations, Emil W. Schmeling filed a bill in chancery on March 17, 1909, to foreclose a mechanic’s lien for work and material furnished in remodeling the building, for $3,549.86, on which $2,000 had been paid. Ashton, the owner, and numerous other parties, among them the Sells-Miller-Santee Company and the Sosman & Landis Company, were made defendants. The Sosman & Landis Company filed an answer, in which they set up that they had furnished to the Eockford Amusement Company certain fixtures, consisting of asbestos curtains, drop curtains, doors, wings, etc., to the amount of $546.25, upon which there had been paid on account $250, leaving an unpaid balance of $296.25 for which it claimed a lien. The Sells-Miller-Santee Company filed an answer, in which it set up that it had furnished certain material composed of electrical fixtures, wiring and other material, and labor, amounting to $517.04 upon which there had been paid $250, and 72 cents worth of material had been returned, leaving a balance of $266.32 for which it claimed a lien. Ashton, the landlord, filed an answer denying that any of the parties were entitled to a lien. The case was heard before the court and a decree entered finding that Ashton, the owner of fee, had made the lease as alleged and had permitted the premises to be improved with full knowledge that the improvements were being made so far as concerns the parties claiming liens; that the' complainant is entitled to a lien for a balance unpaid of $1,549.86; that the Rockford Amusement Company had ordered of the Sells-Miller-Santee Company electrical materials, fixtures and labor to the extent of $517.04 on which $250 had been paid, and that the $250 paid should be first applied to the payment of non-lienable items, and that lienable work and material had been furnished by the Sells-Miller-Santee Company and was still unpaid to the amount of $266.32 for which it was entitled to a lien; and that the Sosman & Landis Company had furnished fixtures, material and labor to the amount of $546.25, on which $250 had been paid, and that the $250 should be first applied to the payment of the non-lien-able items, and that there remained unpaid a balance for lienable fixtures and labor to the amount of $296.25.

Ashton appeals from that decree only as to so much of the decree as is in favor of Sells-Miller-Santee Company and the Sosman & Landis Company.

It is assigned for error (1) that the “court erred in decreeing many items furnished by defendants, Sosman & Landis Company, to be lienable items;” (2) that the “court erred in decreeing many items furnished by the defendants, Sells-Miller-Santee Company, to be lienable items;” (3) that the court erred in applying payments made first on the non-lienable items, furnished by the lien claimants and (4) that the court erred in rejecting proper evidence offered by the defendant.

The only evidence concerning which any question is raised is that of a witness S. B. Marine called on behalf of the lien claimants. It appears from the evidence that subsequent to the filing of the bill, the appellant had forfeited the lease and taken possession of the premises and theatrical outfit. He also after the filing of the bill had levied under an execution against the Rockford Amusement Company upon certain of the fixtures and properties of the theater, and had bought in the entire outfit of what was claimed to be personal property for the snm of $111. Marine, who had been the secretary of the Rockford Amusement Company, was called as a witness and on cross-examination testified that the Rockford Amusement Company had no other place of amusement than this building, and that it bought what scenery the company had, solely for use in that theater and intended it for permanent use there. On redirect examination he was asked if he intended it for permanent use as long as the company occupied the building, and he answered that he had no other intention at that time. He was then asked, on behalf of appellant, what he intended to do with the scenery at the expiration of the lease. To this an objection was made, and the court remarked “Well, that wouldn’t change the character of it by mere intention; the law and lease will determine his rights, irrespective of what his intention was.” The question was not answered, and there was apparently no ruling on the objection, although counsel appear to have understood the remark of the court to be a ruling sustaining the objection. The question is not saved; however, it appears from his previous answers that he was not the secretary of the corporation at the time he was a witness, and there is no proof from which it may be assumed, that as secretary of the corporation, he had any power to determine what course it should pursue at any time, and especially to determine what the company would do five years later, when there might be an entire change of officers. The powers of a corporation are exercised by a board of directors and by the president or general manager to whom the board of directors may have given particular duties. It is the duty of the secretary to keep the record of the proceedings of the corporation, and he has practically no implied powers (Beach on Corporations, sec. 803), but only such other duties or powers as may be expressly given him by the by-laws. There is no proof to show that the secretary could bind the corporation by his intention; therefore the intention of the secretary could have no binding effect and would not prove the intention of the corporation. An answer to the question could have had no bearing on the case, and the question was improper without preliminary proof of some authority to bind the corporation.

It is insisted that the court erred in crediting the sum of $250 which was paid to each of appellees upon non-lienable materials furnished. There was no application of the payments made to the payment of any particular part of the accounts until during the trial when the appellees elected to apply them to payment of the non-lienable items, if the court found that there were non-lienable items. Where a general payment made upon a building contract is not applied by the parties upon any specific part of the account, a court of equity may apply the payment upon the contract so as to include an item for extra work for which the creditor would not, under the contract, be entitled to a mechanic’s lien and thus give him the security of his mechanic’s lien upon the amount remaining unpaid. Barbee v. Morris, 221 Ill. 382; Monson v. Meyer, 190 Ill. 105. The evidence shows that the Amusement Company had expended a large sum of money in improving appellant’s building, the benefit of which inured to appellant as soon as the improvements were made, and which he is now renting to other parties. Under the rule as announced the court committed no error in the application of the payments.

It is also insisted that the materials furnished by the appellees and the work done were not of such a character as to entitle the appellees to mechanics’ liens. In the account of the Sosman-Miller-Santee Company, which was a company engaged in equipping buildings with electric supplies and apparatus, the items bought clearly show that much more of the bill, than that for which a lien was allowed, was for material furnished and work for which there can be no question but that they were entitled to a lien, as it was for permanently wiring the building for electricity, etc., material that could not be removed without tearing the building in pieces. The bill of the Sosman & Landis Company is of a somewhat different nature. The large items of the Sosman & Landis Company are, one asbestos curtain $146.25, one center door piece four wings and two set doors $100, with various other items ranging from $5 to $85. The statute concerning mechanics ’ lien is very broad. Section one of the mechanics ’ lien law gives to any person who shall by any contract with one whom the owner has authorized or knowingly permitted to contract for the improvement, furnished materials, fixtures, apparatus, machinery, labor or services for the improvement, repairing or ornamenting of any building, a lien upon the whole of such lot.

The rule for determining what constitutes a fixture adopted by the courts of this state is: “First, real or constructive annexation of the thing in question to the realty; second, appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; and third, the intention of the party making the annexation to make it a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation and the policy of the law in relation thereto, the structure and mode of the annexation, and the purpose or use for which the annexation has been made.” Fifield v. Farmers National Bank, 148 Ill. 163.

Under the lease made between the appellant and the Bockford Amusement Company consent was given in the lease to “make such necessary changes in said building as will be necessary in order to equip said building for theater purposes, the said party of the first part allowing the party of the second part out of said rental the amount of $650.” The building was entirely remodeled and equipped as a theater. The proof shows that this was the only place of amusement owned or operated by the Bockford Amusement Company. It bought the scenery in question and had it manufactured specially for this theater; the blocks enclosing the pulleys by which the scenery was operated and to which it was fastened were nailed fast to the building and were a part of it and they, together with all the scenery in question, were still in use at that theater and are now wholly owned and leased by the appellant. The asbestos curtain is fastened to the blocks by endless wire rope and to remove the scenery it would be necessary to remove the blocks and pulleys which are solidly nailed to the building. The scenery is not suitable for use in any other theater except one of the same dimensions as this, and was bought solely for use in this theater and intended for use therein, and each piece is complementary to and a necessary part of the whole, to be used as an entirety.

The fixtures may be trade fixtures, but the statuté makes no distinction between the different kinds of fixtures; it reads: “fixtures, apparatus or machinery for the purpose of, or in the building, altering, repairing or ornamenting any house or other building.” The agreement of the landlord to allow $650 for remodeling and equipping the building for theater purposes indicates that the intention of all the parties was that the building as remodeled, and the fixtures placed therein to be used as a part of the theater in its operation, should be permanent and remain there, as the landlord was assisting in equipping the building for such purposes by furnishing $650 towards the cost of remodeling.

The proof shows that the fixtures and apparatus furnished, for which liens were allowed, were so attached and used as to become a part of the theater building. Under such a state of facts the appellees were entitled to a lien therefor. Haas Electric Company v. Amusement Company, 236 Ill. 452. The decree is therefore affirmed.

Affirmed.


text:
    Andrew Roth, Appellee, v. Wabash Railroad Company, Appellant.
    Gen. No. 5302.
    Contributory negligence—When person crossing tracks in buggy guilty of. To approach a crossing, knowing an engine is switching in the neighborhood, in a closed buggy with the horses going at a canter, and not to see the moving engine when there was a clear space of fifty feet in front and 400 feet to the side, is not ordinary care.
    Action in case for personal injuries. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed March 11, 1910.
    R. S. McIlduff and B. R. Thompson, for appellant; James L. Minnis, of counsel.
    A. C. Norton and F. A. Ortman, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an appeal from a judgment for $1,988.63 entered on the verdict of a jury as compensation for personal injuries suffered by appellee as a result of alleged negligence of the appellant. The case went to the jury on the second and third counts of the declaration. The second count averred that the defendant was negligent in backing an “engine” on the crossing of a highway in the village of Sibley in Ford county without ringing a bell or blowing a whistle, or keeping a bell ringing or a whistle blowing until the crossing was reached. The third count avers that an elevator and buildings on the east side of the east track of the defendant and cars standing on the side tracks obstructed the view so that the plaintiff could not see an engine approaching from the south on the west track, and then avers the same negligence as the other count. Both counts aver that the plaintiff was in the exercise of care and diligence while riding in a buggy across said railroad.

The Wabash Railroad runs north and south through the village of Sibley in Ford county. The business part of the village is on a street parallel with the railroad on the east side of and about a block from the railroad. Illinois street runs east and west across the tracks of the railroad. The main railroad consists of a single track, which is the most westerly of all the tracks except one called the spur track, which does not figure in this case. Eight feet east of the main track, where it crosses Illinois street, is what is called the passing track; twenty-three feet east of the main track is the storage track; fifty-one feet east from the main track is the elevator track, which is not on the right of way of the railroad. Ohio street crosses the railroad 600 feet south of Illinois street; between Illinois and Ohio streets on the east side of the railroad is a park; just west of the elevator track and adjoining the south side of Illinois street is an elevator; adjoining the east side of the right of way on the north side of Illinois street is a coal shed. The railroad depot is on the west side of the main track 468 feet south of Illinois street near Ohio street, with a platform' the north end of which is 386 feet from Illinois street. Illinois street is sixty-six feet wide and has a driveway sixteen feet wide planked across the railroad tracks in the center of the street, but there are no sidewalks on this street near or across the railroad. The elevator track at the north end connects with the storage track by a switch 700 feet north of Illinois street; the storage track connects with the passing track by a switch further north; and the passing track connects with the main track by a switch still further north. The south end of the storage track connects with the passing track by a switch about half way between Illinois and Ohio streets. The south end of the elevator track connects with the passing track by a switch about 100 feet north of Ohio street and the south end of the passing track connects with the main track several hundred feet north of Ohio street.

The appellee, who is a farmer living nearly six miles from Sibley, on the 20th of February, 1907, drove to Sibley in a closed buggy with both back and side curtains fastened down. He reached Sibley somewhere between ten and eleven o’clock. He went direct to a saloon, where he met his brother-in-law and some other parties, stayed there a while and then went to a bank to attend to some business, and then back “to the saloon to see the boys.” Later he and his brother-in-law went to a restaurant and had a lunch. The day was cold and blustery and the team had been left standing in the street unblanketed. A few minutes after 12 o’clock the appellee and one Thomas Diskin got into the buggy to go to a sale to which appellee had no intention of going when he left home, and drove west on Illinois street across the railroad, a locality appellee was familiar with “as he had been across this track hundreds of times before and knew there were three side tracks east of the main track.” Appellee and Diskin testified that cars were standing on the elevator track on the south side of Illinois street within a few feet of the plank crossing and that cars were also standing on the storage track and the passing track, so that they were unable to see an engine approaching the street from the south on the main track. Appellee testified that when they came to the car “west of the elevator my horses were still on a trot, kind of canter like, and made a spurt as they went by the car; ’ ’ that he saw a caboose standing some distance south either on the first or second tracks, says he looked north but didn’t see any engine ; that after he passed the box car he leaned forward so that he could look around the side curtains and continually leaned forward but didn’t see anything until the engine was within ten feet of him; that when he was on the track east of the main track there were cars to prevent Ms seeing the engine coming north; that he looked when he was on the third track from the east the last time bnt that his horses were not going slower than a canter; that he did not hear a bell or whistle; that he knew there was an engine there; and that he had seen two trains there a few minutes before he got in the buggy.

The engine struck the buggy on the main track and the appellee was thrown out and injured. The proof shows that just after twelve o’clock there were three trains in Sibley at the same time; one a through freight that came in from south and stood on the main track; a south bound train, a through freight, came in from the north and stood on the passing track; and a third train, a local freight, came from the south; the local freight when it came in left the main track, crossed the south ends of the passing track and the storage track onto the elevator track, went south to a box car by the coal house which was coupled to the front of the engine; it then backed up north across the switch from the elevator track to the storage track, and then went south on the storage track, pushing the box car which it had taken off the elevator track and pulling the local train; after the two trains had arrived from the south the north bound train left town going north on the main track and the south bound tMough freight went south from the passing track onto the main track and out of town. After the south bound through freight had left town, the local pulled south off the storage track onto the passing track until the caboose at the rear of the train was on the passing track opposite the north end of the platform. The engine of the local was uncoupled from the local train and then, pushing the box car ahead of it, went south on the passing track over the switch connecting with the main track onto the main track; then backed up north on the main track pulling the box car behind it past the depot and over Illinois street, where, as it was about to cross the street, the appellee drove in front of it and was injured. The proof as to the movements of the trains shows conclusively that there were no cars standing on the passing track or on the storage track south of Illinois street between that street and the depot where the caboose stood at the rear of the train, as the through south bound freight train went south on the passing track and the local freight passed south on the storage track. It is not possible there could have been any cars standing on either of those tracks south of Illinois street and north of the caboose. It is assigned for error among other things (1) that the clear preponderance of the evidence shows that there was no negligence proven on the part of the appellant, and (2) that no judgment can be sustained in favor of appellee because he was not in the exercise of due care. The proof with reference to negligence, the failure to ring the bell, is conflicting. Appellee and Diskin testify the bell was not ringing. A witness named Fred Lohmyer, who was at home eating dinner four or five blocks distant testified he did not hear the bell. Joe Sleezer a barber did not notice it or think about it at the time, but subsequently “thinking the matter over concluded the bell was not ringing.” Fred Frederkehn was at dinner several blocks away from the crossing and didn’t hear the bell ring. August Koehne, the president of the village, was on the street a block and a half east of the railroad and did not hear the bell. Apparently Both, Disldn and Koehne are the only witnesses on the part of appellee who were in a position to know anything about the matter. For the appellant, the proof is that the engine had an automatic bell, which Spence, the engineer, testified he started ringing at the north end of the yard when they went in after the box car and that it was kept ringing; Hisel, the fireman, Carter, a brakeman, Doran, the conductor, all testify the bell was ringing and the section foreman and two of'his men who were eating dinner in the depot testify positively that the bell was ringing when the engine passed the depot. The agent who was busy about attending to his duties thinks it was ringing, but was not positive. It is very questionable whether the appellee proved negligence alleged by a preponderance of the evidence.

In reference to the question of due care on the part of appellee, he says that he did not hear nor see the engine until it was within ten feet of him; that he was driving in a covered buggy; that he had spent a couple of hours in and about saloons; admits having had from one to four drinks of liquor; that he had bought a pint of whiskey, the broken bottle of which was found in his pocket; he was driving at a canter, a team which had been left standing in the cold unblanketed upwards of two hours, hitched to a buggy with the side curtains down and on a cold and blustery day. To some of the railroad men the team appeared to be running away. There was fifty feet between the elevator track and the track the engine by which he was struck was on, with nothing intervening between the elevator track, the caboose on the passing track 400 feet to the north and the place he was injured. He says he leaned forward and looked when he was on the passing track after passing the car on the elevator track, and saw nothing. The engine. moving north slowly was in plain sight in ample time for him to have stopped had he been using any care. To approach a crossing, knowing an engine is switching in the neighborhood, in a closed buggy with the horses going at a canter, and not to see the moving' engine when there was a clear space of fifty feet in front and 400 feet to the side is not ordinary care. The law will not tolerate the absurdity of giving credit to a person who testifies he looked and did not see a moving locomotive in plain sight when the view was unobstructed, and where if he had looked he must have seen it. C. R. I. & P. Co. v. Jones, 135 Ill. App. 383; C. R. I. & P. Ry. Co. v. De Freitas, 109 Ill. App. 104. It is clear that the appellee did not look or use any care, but carelessly and recklessly drove across the tracks where he was injured. Clearly the evidence fails to show that appellee was in the exercise of dne care, bnt it does show that he was injured because of his own negligence and want of ordinary care. It is unnecessary to pass on the other questions raised. The judgment cannot be sustained, and it is therefore reversed with a finding of fact.

Reversed with a finding of fact.

Finding of fact: Plaintiff was injured because of his own want of ordinary care.


text:
    Michael J. O’Meara, Appellee, v. Cardiff Coal Company, Appellant.
    Gen. No. 5305.
    1. Pleading—when general issue properly strichen. A party cannot plead a tender of a part of the sum declared for and at the same time maintain a plea of the general issue to the whole declaration.
    2. Evidence—letters written with a view to compromise incompetent. Held, that a letter written by the attorneys of a party with a view of obtaining a compromise, is not competent against such party.
    3. Evidence—letters containing self-serving statements. Held, that a letter written by a party containing self-serving statement was for that reason properly excluded.
    4. Tender—when insufficient. A tender made after suit is insufficient if it does not include the costs incurred up to such time.
    5. Interest—when not recoverable. Unless the action is predicated upon a written instrument providing for the payment of money or unless the account sued for has become stated, unreasonable and vexatious delay of payment must be established in order to entitle the recovery of interest in an action of assumpsit to recover for the money demand.
    6. Appeals and errors—when remittitur appropriate. If a verdict and judgment improperly include the allowance of interest, the error may be cured by requiring the filing of a remittitur.

      Assumpsit. Appeal from the Circuit Court of Livingston county; the Hon. Geokge W. Patton, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    A. C. Norton, for Appellant.
    E. S. McIlduee and B. E. Thompson, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Michael J. O’Meara brought suit in assumpsit against the Cardiff Coal Company to recover the value of services rendered. The declaration consisted of the common counts only, with an affidavit of merits that there was due the plaintiff $1,422.' The defendant filed a plea of the general issue with a plea of tender of $820.60. On motion of the plaintiff the plea of the general issue was stricken from the files. On a trial, the jury returned a verdict in favor of the plaintiff for $1,193.32 upon which, after the usual motions, judgment was rendered and the defendant appeals.

The first error assigned is that the court erred in sustaining a demurrer to defendant’s plea of tender. The record does not show that any demurrer was filed to the plea of tender but, on the contrary, a replication to the plea of tender was filed upon which issue was joined.

If appellant intended to assign error on the order striking from the files the plea of the general issue, the point is not well taken for the reason that a party cannot plead a. tender of a part of the sum declared for, and at the same time maintain a plea of the general issue to the whole declaration, as this plea was. 1 Chitty’s Pl. 560; Monroe v. Chaldeck, 78 Ill. 429; County of JoDaviess v. Staples, 108 Ill. App. 539. "While a defendant ordinarily may plead inconsistent pleas, yet by a plea of tender he is estopped from denying he is indebted in the sum named in the plea of tender and must limit a plea of the general issue to the balance of the claim above the sum tendered.

The appellee contracted to clear out some settling basins at one of appellant’s mines at the price of twenty cents per cubic yard, and to throw up a certain embankment. The settling basins are large shallow ponds into which the water used in washing coal is discharged so that the dust and dirt washed from the coal may not be carried into the running streams near appellant’s coal mine. There was a series of six of these basins, and they were in the neighborhood of two or three feet deep. The water would run into the first basin in which most of the sediment would settle, until the basin was full, and then to the next one and so on to the last one. The general superintendent of all the mines of appellant told the superintendent of this particular mine to have the basins cleaned out and the work done. After the work was done, -appellee, with his son and the local superintendent, measured the first basin and found a depth of three feet had been taken out, and the depth of the others was estimated at two and one-half feet. The local superintendent told appellee that he would have to send the figures to Chicago for the company’s approval. "When the figures reached Chicago the officers having been told by the superintendent that the work could be done for $250, were dissatisfied. They sent a civil engineer and surveyor to measure the basins who made measurements and calculations showing a total of $820.60 due appellee. The county surveyor afterwards measured the basins for appellant and figured the amount at $749.40. There was a serious controversy in the evidence as to the correctness of the measurements. The basins were irregular in shape and surrounded by rims of earth made in excavating the ponds when they were constructed. Appellee’s evidence tends to show the basins were filled with sediment much above the natural level of the earth, while appellant’s evidence tends to show they were only filled to the natural surface of the ground. There was also a question as to the depth of the basins. The measurements were made in November after water from the washery had run into the basins. The man holding the rod wore rubber boots and stood in mud and water up to his knees in some of the ponds. It is clear that there is much room for disagreement over the depth and the amount of the excavation. It is properly a question of fact for a jury, and this court will not interfere with the finding approved by the trial court unless some error of law has occurred on the trial.

Appellee offered in evidence a part of a letter written by appellant’s local superintendent, to the appellant, transmitting the measurements made when appellee and the superintendent estimated the excavation, but did not introduce all the letter; afterwards appellant offered the remainder. Notice was served on appellant to produce these measurements, and it failed to do so, but produced the letter they were sent with. The only part of the letter offered by appellee was that concerning the measurements, and appellant offered the remainder of the letter later. There was no error in the admission of this evidence.

The attorneys for appellee wrote a letter to appellant, at its Chicago offices, in reply to which appellant wrote a long letter, containing many self-serving statements. Appellant offered these letters in evidence, and an objection on the part of appellee was sustained. The letter written by the attorneys was clearly written in an endeavor to get at the claims and views of both parties with a view of making a settlement. There was nothing in it that benefited appellant, but what it sought was to get before the jury the self-serving statements in its reply. The letter of the attorneys being written with a view of obtaining a compromise was not proper evidence against appellee, and the letter of appellant was properly rejected because of its self-serving statements,. We find no error in the admission or rejection of this evidence requiring a reversal of the ease.

It is also insisted that there was error in the ruling upon evidence and the refusal of instructions concerning the tender. Appellant’s contention is that it told appellee over the telephone that it would pay him $820.60. That cannot be regarded as a tender. After suit brought and costs incurred the appellant paid the sum of $820.60 into court, but neither paid the costs to that time nor pleaded a tender of costs. The tender was clearly insufficient even under the theory of appellant, as it should have tendered costs in addition to the sum it admitted to be due. The jury however found a much larger sum in favor of appellee, and the refusal of appellant’s instruction was harmless error, even if it was a proper instruction.

It is also contended that the judgment is excessive and that there was error in instructions given at the request of appellee. The only assignment of error concerning appellee’s instructions is the sixth that the court “erred in improperly instructing the jury to allow appellee interest.” There is no other assignment concerning appellee’s instructions, and all other errors concerning appellee’s instructions, if any, were all waived. We find however no substantial error in the instructions complained of, except the ninth instruction given at the request of appellee and the only one within the assignment of errors. It is: “Ton are further instructed that in arriving at your verdict you should allow to the plaintiff interest at five per cent on whatever sum you find to be due him from the date of the completion of the work on said ponds and ditch by the plaintiff.” There is no proof of any contract to pay interest and no written agreement. Interest is only recoverable in such cases on money due on settlement of the account from the day of liquidating the account, or on money withheld by an unreasonable and vexatious delay of payment. Statute, chap. 74, sec. 2. If plaintiff claimed he was entitled to interest under either of these provisions it should have been submitted to the jury to find whether there had been an account stated and liquidated or an unreasonable and vexatious delay of payment. We do not see how it can be contended that there was an unreasonable and vexatious delay of payment, as there appears to have been an honest difference of opinion, and the appellant never agreed to appellee’s claim. Further, the instruction did not direct the jury to allow interest at the rate of five per cent per annum, but told them to allow five per cent. We must assume the jury followed the instruction which was mandatory. We conclude, howe.ver that this is an error that can be cured by a remittitur, since errors affecting damages only may be cured by a remittitur. Amann v. Chicago Tr. Co., 243 Ill. 263. This opinion will be lodged with the clerk, and if within five days the appellee remits $57, the judgment will be affirmed for $1,136.32 at his costs; otherwise it will be reversed and remanded.

Afterwards appellee having filed a remittitur herein of $57 the judgment is therefore affirmed in the sum of $1,136.32 at the costs of appellee.

Affirmed with remittitur.


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    Robert Bruce Watson et al., Appellants, v. H. J. Bardwell et al., Appellees.
    Gen. No. 5323.
    1. Pleading—how non-joinder raised in equity. The non-joinder of a necessary party may he raised in equity by general demurrer but the non-joinder of a proper but not a necessary party must be raised by special demurrer. The non-joinder of a necessary party may even be raised by motion made at the hearing.
    2. Mechanic’s liens—who not necessary party. The administrator of the owner who made the contract upon which the claim for lien is predicated is not a necessary party to a bill for a mechanic’s lien where a deficiency decree is not sought.
    Mechanic’s lien. Appeal from the Circuit Court of Lake county; the Hon. Robert W. Weight, Judge, presiding. Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed May 18, 1910.
    Statement Tby the Court. In a suit brought by appellants to establish and enforce a mechanic’s lien, a second amended bill was filed and answered by the various parties in interest after general demurrers had been overruled, and the cause was referred to a master who filed his report. The cause was being heard upon exceptions thereto, when certain defendants who were parties in interest moved to dismiss the bill because the administrator of the owner, who had died after the contract was made and before the suit was brought, had not been made a party defendant. The court indicated that the motion would be granted. Thereupon appellants by leave of court amended their second amended bill so as to make said administrator a party defendant. Several defendants without withdrawing their answers demurred to the bill as amended and the administrator also demurred; thereupon said demurrers were sustained and the bill dismissed. The decree states that the sole ground upon which the demurrers were sustained is that the administrator was a necessary party to the bill for a mechanic’s lien and that he had not been made a party to the suit within the time limited by law for bringing a suit to enforce a mechanic’s lien. Complainants below appeal.
    Rogers & Mahoney and Chilton P. Wilson, for appellants.
    Underwood & Smyser, Charles R. Young and Cooke, Pope & Pope, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

The only question for our consideration is whether in a suit to foreclose a mechanic’s lien the administrator of the owner who made the contract is a necessary party to the suit. Section 10 of the Mechanic’s Lien Law of 1903 provides: “Suits may be instituted under the provisions of this act in favor of administrators or executors, and may be maintained against the representatives in the interest of those against whom the cause of action accrued, and in suits instituted under the provisions of this act, the representatives of any party who may die pending the suit shall be made parties.” Section 11 defines who are parties in interest or may become parties to the suit, and the requisites of a bill or petition. This section provides: “* * * The complainant or petitioner shall make all parties interested, or of whose interest he is notified or has knowledge, parties defendant. * * * The parties in interest within the meaning of this, act shall include all persons entitled to liens thereunder whose claims are not, as well as are, due at the time of the commencement of suit, and such claims shall be allowed subject to a reduction of interest from the date of judgment to the time the claim is- due; also all persons who may have any legal or equitable claim to the whole or any part of the premises upon which a lien may be attempted to be enforced under the provisions thereof, or who are interested in the subject-matter of the suit.” In matters of this kind the administrator is a proper party, but proper parties are not always necessary parties. The demurrer was general. The rule is that a demurrer for a non-joinder of a proper but not a necessary party should be special, and show that the ground of demurrer is the want of a proper party. Portones v. Badenoch, 132 Ill. 377. It was immaterial to the interests of the other parties whether the administrator was or was not a party to the suit. If the administrator had been a necessary or indispensable party then the objection that he was not a party could be raised by motion at the hearing. Knopf, County Clerk, v. Chicago Real Estate Board, 173 Ill. 196; Allen v. Woodruff, 96 Ill. 11; Larson v. Glos, 235 Ill. 584. The object of the bill and the prayer was to procure a lien against the real estate and secure the same for whatever might be due the contractors. The land on the death of the ancestor passed to the heirs at law. The administrator took no title to the land or any interest therein. Appellants could not have a deficiency decree except against the estate of the deceased, and if they wanted that the administrator would be a necessary party, but they have not prayed for a deficiency decree. All that is prayed for is a lien upon the premises. This proceeding is analogous to the foreclosure of a mortgage upon real estate. An administrator is not a necessary party to a bill of foreclosure which seeks nothing but a foreclosure and does not seek to charge the administrator or the personal estate in his hands. Roberts v. Tunnell, 165 Ill. 631; Wellman Exec. v. Miner, 179 Ill. 326. There was no error in sustaining the demurrer of the administrator as no relief was sought or could then be had against him as such administrator. The administrator however not being a necessary party it was error to sustain the demurrers of H. J. Bardwell, Hiram H. Rose and the Life Insurance Company of Virginia. For the error in sustaining such demurrers the decree is reversed and the cause remanded, at the costs of all the appellees except H. J. Bardwell, administrator.

Reversed and remánded.


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    American Spirits Manufacturing Company, Defendant in Error, v. Peoria Belt Railway Company, Plaintiff in Error.
    Gen. No. 5236.
    1. Pleading-—what plea to jurisdiction. A plea by a corporation alleging that the parties upon whom the summons was served were not at the time of such service officers of such corporation, belongs to that class of pleas recognized in this state as pleas to the jurisdiction of the court in the nature of pleas in abatement.
    2. Pleading—when plea to jurisdiction improperly stricken. A plea which is not to the jurisdiction of the court over the subject-matter but only over the person of the defendant, properly concludes with the prayer “if the court will here take cognizance of the action aforesaid” and such a plea need not tender a better writ.
    3. Pleading—what pleas need not be verified. Pleas to the jurisdiction of the court in the nature of pleas in abatement are not required to be verified.
    4. Pleading—when affidavit of merits not essential. An affidavit of merits need not accompany a plea to the jurisdiction of the court in the nature of a plea in abatement.
    5. Amendments and jeoeails—to what classes of pleas applicable. By statute pleas to the jurisdiction of the court in the nature of pleas in abatement are proper subjects of amendment.
    Assumpsit. Error to the Circuit Court of Peoria county; the Hon. L. D. Putebbatjgh, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed May 18, 1910.
    Jack, Irwin, Jack & Miles, for plaintiff in error.
    Page, Weal, Hunter & Scully, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit begun in the Circuit Court of Peoria county to the March term, 1909, by the American Spirits Manufacturing Company against the Peoria Belt Railway Company. The declaration consists of the common counts, in which the ad dam num is $15,000. An affidavit of merits was filed with the .declaration stating that the suit was brought to recover rents due, and that there is due the plaintiff after allowing all just credits, deductions and set-offs, the sum of $13,934.50. The summons for the defendant was issued on February 16, 1909, to the sheriff of Peoria county, in the usual form, and was returned served “by delivering a true and correct copy thereof to W. T. Irwin, the president of said defendant, Peoria Belt Railway Company, and also by delivering a true and correct copy thereof to Theodore J. Miller, secretary of Peoria Belt Railway Company.”

On March 11, 1909, the first day of the March term of court, the defendant filed a plea to the jurisdiction of the court, which after the title of the cause was as follows:

“And the said Peoria Belt Railway Company, a corporation, by Jack, Irwin, Jack & Miles, its attorneys, comes and appears specially for the purpose of this plea only and says that the said W. T. Irwin was not at the time of the service of said writ of summons upon him, the said W. T. Irwin, to wit, on the 17th day of February, 1909, nor for a long time prior thereto, to wit, three years, nor since said date, nor is the said W. T. Irwin now the president of said Peoria Belt Railway Company, nor was he at the date last mentioned or for a number of years prior thereto or now clerk, secretary, superintendent, general agent, cashier, principal, director, engineer,- conductor, station agent or any agent of said company, to wit, at the county aforesaid; and that the said Theodore Miller was not * * * (here follows a denial that the said Miller was secretary or any other officer or.agent of defendant in words similar to the denial as to Irwin); * * * and this the said Peoria Belt Railway Company is ready to verify; wherefore it prays judgment if the court will here take cognizance of the action aforesaid.

Peoria Belt Railway Company,

By Jack, Irwin, Jack & Miles, its attorneys.”

The plaintiff moved to strike the plea from the files for the reasons, (1) that the plea is not verified;. (2) that it does not tender a better writ; (3) that it is defective in the form of its prayer; (4) it is not made by any proper attorney and (5) no proper authority is shown for filing such plea. On March 13, 1909, the court sustained the motion to strike the plea, whereupon, on the same day, the defendant by a special appearance for the purpose of the motion only, and no other, moved for leave to amend its plea filed March 11, 1909, and to refile said plea as amended by making a part thereof an affidavit sworn to by W. T. Irwin, that he has read the foregoing plea and that the statements therein contained are true. The court overruled the motion for leave to amend and ruled the defendant to plead instanter. Exceptions were preserved to the rulings on the motions to strike the plea and for leave to amend, etc., by a bill of exceptions. A default was entered against the defendant on March 16th and judgment was rendered against it for $13,934.50. The defendant prosecutes this writ of error to review that judgment.

It is insisted that the court erred in striking from the files the plea to the jurisdiction filed by the plaintiff in error, and in refusing leave to plaintiff in error to amend and refile its plea as amended by attaching and making a part thereof an affidavit verifying the plea.

Plaintiff in error contends, (1) that a plea to the jurisdiction cannot be tested by a motion to strike it from the files and that such a motion is only applicable to a meritorious plea; (2) that the plea filed while in the nature of a plea in abatement, is a plea to the jurisdiction of the court, and that such a plea is not required to be verified; and (3) that a plea in abatement to the jurisdiction of the court over the person of the defendant is not strictly a plea in abatement, but a meritorious plea, and therefore amendable.

. On the other hand defendant in error contends, (1) that a plea contradicting a sheriff’s return is not amendable and must be verified and (2) that when an affidavit showing the nature of the plaintiff’s demand and the amount due is filed with the declaration, all pleas, whether in abatement or to the merits, must be accompanied by an affidavit stating that the defendant had a defense upon the merits to the whole or some part of plaintiff’s demand. The second contention of the defendant in error in this court is not mentioned in the written motion filed in the Circuit Court.

The plea to the jurisdiction of the court properly concluded with a prayer “If the court will here take cognizance of the action aforesaid.” This form of conclusion is one of the matters in which such pleas are distinguishable from pleas in abatement proper. 1 Chitty on Pl. 441; Pooler v. Southwick, 126 Ill. App. 264.

The plea is not to the jurisdiction of the court over the subject-matter but only over the person of the defendant. No complaint is made concerning the writ and it was not necessary that the plea should tender a better writ. Midland Pacific Ry. Co. v. McDermid, 91 Ill. 170.

The plea denied that the summons was served on the defendant by alleging that the parties on whom it was served were not, nor was either of them, at the time of such service or since, an officer or agent of the defendant; it is strictly a plea to the jurisdiction of the court over the person of the defendant. The plea in controversy belongs to a class of pleas recognized in this state as “a plea to the jurisdiction of the court in the nature of a plea in abatement.” Howe v. Thayer, 24 Ill. 246; Beck & Pauli Lithographing Co. v. Monarch Brewing Co., 131 Ill. App. 645; Porter v. Southwick, supra. Section 1 of the statute of amendments and jeofails specially provides that that act shall not apply in criminal matters “or to any plea in abatement.” Pleas to the jurisdiction however, are amendable under the statute of amendments, (section 39 of the practice act of 1907), and are, if filed in apt time, not governed by the strict common law rules concerning pleas in abatement proper, except as to the time of filing. Spencer v. Aetna Indemnity Co., 231 Ill. 82; Drake v. Drake, 83 Ill. 526; Howe v. Thayer, supra; Midland Pacific Ry. Co. v. McDermid, supra; Beck & Pauli Lith. Co. v. Monarch Brewing Co., supra. It was therefore error to overrule the motion of plaintiff in error for leave to amend its plea by adding a verification.

Section 1 of chapter 1 of the Statute, title, Abatement, provides: “That no plea in abatement, other than a plea to the jurisdiction of the court, or when the matters relied upon to establish the truth thereof appear of record, shall be admitted, unless the same is verified by the affidavit of the person offering the same, or of some other person for him.” Under this provision it has been held that a plea to the jurisdiction of the court in the nature of a plea in abatement is not required to be verified. Howe v. Thayer, supra; Drake v. Drake, supra; Beck & Pauli Lith. Co. v. Monarch Brewing Co., supra.

Defendant in error further insists that the plea was properly stricken on its motion, because the plaintiff in error did not file with its plea an affidavit stating it has a good defense to the demand of defendant in error under section 55 of the Practice Act of 1907. The first statute passed in this state requiring a defendant to file an affidavit that he had a good defense to the suit on the merits, if the plaintiff had filed with his declaration an affidavit of merits, was enacted in 1872. Section 36 of the Practice Act of 1872. That section provided that if the plaintiff in any suit upon a contract shall file with his declaration an affidavit showing the nature of his demand and the amount due after allowing all just credits, etc., he shall be entitled to judgment, as in case of default, unless the defendant, if a resident of the county in which suit is brought, shall file with his plea an affidavit, stating that he verily believes he has a good defense to said suit on the merits to the whole or a portion of the plaintiff’s demand; the same section provided that “no affidavit of merits need be filed with a demurrer, plea in abatement, or motion.” That act was amended in 1877 by omitting the words “plea in abatement.” The practice act of 1907 (section 55 of the act of 1907) further amended this section by omitting the words “if a resident of the county in which the suit is brought,” and the words, “no affidavit of merits need be filed with a demurrer or "motion.” The act of 1907 also contains a new section which provides, “If the issue on any plea in abatement is the truth of a statement in the return on the summons, or that the defendant is sued out of his proper county, or is not subject to suit in the county in which the suit is brought or that the court has no jurisdiction over the person of the defendant and such issue is found against the defendant, the judgment shall be respondeat ouster ” Section 45 Practice Act 1907. If the right of a defendant to be properly brought into court or to be sued in the county where he resides or may be found, may be ignored, unless the defendant shall file an affidavit that he has a good defense on the merits, then a plaintiff may select any forum in disregard of the statute, and the defendant may be deprived of the rights which the law gives him in express terms. It is fundamental that “no person shall be deprived of life, liberty, or property, without due process of law.” Due process of law requires the service of summons in the manner provided by law, or a voluntary general appearance and until there is such due service or a general appearanee, there is no jurisdiction in a court to render judgment or to require the defendant to plead. Parties cannot be required to plead until the court has jurisdiction over the person in the manner provided by the statute or by a general appearance, and if the jurisdiction of the court is questioned in a legal and proper manner that question must be disposed of in favor of the jurisdiction before the defendant is required to plead further. A proper construction of the Practice Act concerning affidavits of merits and the issue on pleas in abatement will permit both sections to stand and therefore will not require an affidavit of merits to be filed with a plea to the jurisdiction of the person in the nature of a plea in abatement. For the error in overruling the motion for leave to amend the plea the judgment is reversed and the cause remanded.

Reversed and remanded.