text:
    Modern Woodmen of America, Appellee, v. Julia A. Binder, Appellant.
    Gen. No. 6,582.
    (Not to The reported in full.)
    Abstract of the Decision.
    1. Judgment, § 321

      - — when enforcement of enjoined. Equity will enjoin the enforcement of a judgment at law which is the result of an accident or mistake.
    2. Judgment, § 311* — when enforcement of not enjoined. Equity will not enjoin the collection of a judgment at law if the complaining party had opportunity to make his defense at law and neglected to do so.
    3. Judgment, § 321* — when in action on insurance policy deemed, procured hy mistalee. Where an insurance company, defendant in an action on a life insurance policy by the beneficiary, the wife of the insured, based upon the presumptive death of the insured because of his absence for more than 7 years without having been heard from or of, made inquiries of the wife and also other inquiries, and made every effort in its power to ascertain whether the insured was alive before the time of trial but failed, the judgment will be treated as the result of an accident, upon it being later accidentally ascertained that the insured is still alive, and equity will enjoin the enforcement of the judgment.

      Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Bill by Modem Woodmen of America, complainant, against Julia A. Binder, defendant, to enjoin the collection of a judgment obtained by defendant against complainant. From a decree for complainant, defendant appeals.
    Murphy, Lyon & Johnson, for appellant.
    Truman Plantz, George G. Perrin and Charles L. Abbott, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Shellabarger Elevator Company, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Carriers, § 134

      —when shipper is entitled to recover for loss of corn in transit. A shipper which ships corn to its own order, with a provision in the hill of lading to notify the purchaser, and draws , drafts on the purchaser, indorses them and the bills of lading, and deposits them all in a bank, is entitled to recover for grain lost in transit, although the drafts have been paid and the bills of lading surrendered to the carrier, the only corn sold being that actually delivered.
    2. Witnesses, § 224

      —when denial of right of cross-examination is improper. In an action by a shipper against a carrier for loss of corn in transit, where plaintiff made proof of the amount of grain shipped in each car by the testimony of its agents who weighed it just prior to its being placed in the cars, it was improper to refuse to allow defendant to cross-examine the witnesses as to their recollection of weighing the corn and their knowledge of the scales and the manner of conveying the grain to the car, to determine whether the scales were correct and whether all the corn weighed went into the car.
    3. Commerce, § 5

      —what is effect of Carmack Amendment on liability of carrier for loss or damage to interstate shipment. The liability of a carrier for loss or damage to an interstate shipment of grain is governed by the Carmack Amendment to the Interstate Commerce Act, and all State statutes and regulations concerning such shipments are superseded.
    4. Carriers, § 121

      —when not liable for shrinkage of grain in interstate shipment. A carrier conveying an interstate shipment of grain is not liable under the Carmack Amendment for shrinkage unless such shrinkage is shown to be due to its own fault.
    5. Carriers, § 138

      —when evidence as to shrinkage of grain from natural causes is improperly excluded. In an action by a shipper against an interstate carrier for loss of part of an interstate shipment of grain, it was error to refuse to permit the carrier to show that the loss was caused in part, at least, by shrinkage from natural causes.
    6. Carriers, § 137

      —presumption that shipper knows provisions of bill of lading. The shipper of an interstate shipment of grain is presumed to know the provisions of the bill of lading.
    7. Carriers, § 137

      —presumption that contract for interstate shipment of grain is valid. It must be presumed that a contract for the conveyance of an interstate shipment of grain, as disclosed by the bill of lading, is a binding one.
    8. Carriers, § 143

      —when provision in bill of lading is controlling as to measure of damages for loss of grain. The condition in a bill of lading for an interstate shipment of grain, that the liability for loss shall be measured by the value of the grain at the place of shipment, is valid, and controls the measure of damages.
    9. Instructions, § 120

      —when improper because not based on evidence. It is error to give an instruction concerning the stipulated measure of damages for loss of grain by a carrier in transit where there is no evidence to support it.
    10. Instructions, § 151

      —when refusal proper. It is not error to refuse requested instructions which are covered by given instructions.
    11. Instructions, § 81

      —when properly refused because referring to particular portions of evidence. It is proper to refuse-requested instructions where they are misleading in referring to particular portions of the evidence.
    12. Evidence, § 23

      —what is nature and effect of prima facie. Prima facie evidence is not conclusive evidence, but is evidence sufficient to prove the averment of which it is prima facie evidence, unless and until it is rebutted by evidence of equal weight.
    13. Carriers, § 137

      —what does not tend to contradict prima facie evidence of bills of lading as to amount of grain received by carrier. The fact that the freight for shipments of grain is settled for by the purchaser upon the basis of weight at the destination. does not tend to contradict the prima facie evidence shown by the bills of lading that the carrier received a specified amount of grain.
    14. Carriers, § 137

      —when burden of proof is shifted to carrier in action for loss of grain. In an action against a common carrier by a shipper to recover for loss of grain in transit, while some proof is required that the grain was not delivered, but slight evidence will be sufficient to shift the burden of proof upon the carrier.
    15. Carriers, § 137

      —when burden of proof is on carrier to show discrepancy in weights at points of shipment and destination. In an action by a shipper against a carrier for loss of grain in transit, where the shipper introduces evidence tending to show a discrepancy in the weights at the points of shipment and destination, the burden of explaining it is on the carrier.
    16. Carriers, § 141

      —when instruction on burden of proof in action by shipper for loss of grain properly refused. In an action by a shipper against a carrier for loss of grain in transit, an instruction, that defendant was not required to establish by affirmative evidence any defense to plaintiff’s cause of action and that the burden of proof was on plaintiff to make out its case by a preponderance of evidence, was misleading, and properly refused.
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed July 14, 1917.
    Crea, Housum & Hamilton, C. C. Leforgee, Thomas W. Samuels and G-eorge W. Black, for appellant; John G-. Drennan, of counsel.
    Vail, Miller & Pogue, for appellee.

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

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

The Shellabarger Elevator Company brought this suit to recover from the Illinois Central Railroad Company, as a common carrier of grain, for losses claimed to have been sustained by plaintiff by reason of the failure to deliver at the destination points, parts of three different shipments made by plaintiff. Each shipment consisted of one car of com. The first car was shipped on January 12, 1914, from Argenta, Illinois ; the next January 16,1914, from Forsyth, Illinois, and the last May 28, 1914, from Emery, Illinois. All were shipped to Memphis, Tennessee. The waybills show the amounts of com at the initial places of shipment to have been 66,000, 88,020 and 80,250 pounds, respectively, and the losses are alleged to have been 990, 1,380 and 890 pounds from the respective cars. The declaration contains a count - on each shipment. The only plea is the general issue. A jury returned a verdict in favor of plaintiff for $41.08. The defendant appeals.

It is contended by appellant that the appellee did not prove that it is the holder of the negotiable bills of lading issued with each car and therefore it is not entitled to recover. The com was shipped by appellant to the “order of Shellabarger Elevator Co.,” Memphis, “notify Tates and Donnellson.” Drafts to the amount of 90 per cent of the value of the com, drawn by appellee on Tates and Donéis on, were, with the bills of lading indorsed by the Shellabarger Elevator Company, deposited in a bank. Tates and Donelson. paid the freight and the drafts and for whatever com was received by them at the point of destination and surrendered the bills of lading to appellant, by whom they were produced on the trial. This contention of appellant was recently reviewed on similar facts in Shellabarger Elevator Co. v. Illinois Cent. R. Co., 278 Ill. 333, and Farmers’ Grain Co. of Dorans v. Illinois Cent. R. Co., 201 Ill. App. 261. The drafts had been paid and the bills of lading surrendered to appellant. The only com sold was the com actually delivered at Memphis; the com lost, if any, belonged to appellee, and it was entitled to recover therefor.

The appellee made proof of the amount of com shipped in each car by the testimony of its agents who weighed the com just prior to its being placed in the cars. The scales on which the com was weighed were in the elevators of appellee. The com was then raised to the upper part of the elevators and mn down again into the cars. The appellant, on cross-examination, was not permitted to examine the witness as to the condition of the scales and how the grain was moved from the scales to the car.

The statute (section 118, ch. 114, Hurd’s Rev. St., J. & A. ¶ 8920) requires railroads to correctly weigh grain at the time it is received for transportation and issue to the shipper a bill of lading, “in'which shall be stated the true and correct weight,” and, upon neglect to weigh and receipt for the same, the sworn statement of the shipper or his agent, having personal knowledge of the amount shipped, shall be taken as true. The appellee having undertaken to make such proof by oral testimony, we can see no reason why appellant was not entitled to cross-examine the witnesses as to their recollection of weighing the com and their knowledge of the scales and the manner of conveying the grain to the car, to determine whether the scales were correct and whether all the corn weighed went into the cars. We think the cross-examination was unduly limited.

It is also insisted by appellant that the court erred in refusing to permit it to show that the loss claimed was caused in part, at least, by shrinkage from natural causes. Objections to this evidence were sustained on the grounds that the expert was not qualified to testify on that subject, and that under the statute of Illinois, any discrepancy in weights could not be explained, and the liability of appellant to respond therefor avoided by showing it was caused by natural shrinkage.

Two of the shipments were in January; they were upwards of two weeks in the cars. In Shellabarger Elevator Co. v. Illinois Cent. R. Co., supra, a case involving damages for intrastate shipments, the section of the statute requiring the carrier to deliver at its destination the full amount of the grain without any deduction from leakage, shrinkage or other loss in quantity of same, was construed and it was there held that a carrier is not liable for loss in weight caused by its natural shrinkage. It is a well-known fact that at certain periods of the year there is more or less shrinkage in the weight of new corn, the amount of shrinkage being dependent on various circumstances, and loss by natural or inherent causes would not appear to be caused by appellant unless its negligence in some way contributed to such loss. (6 Cyc. 381.) The shipments being interstate, the claim for loss and damages is governed by the Carmack Amendment, which provides that the carrier receiving property for transportation to a point in another State shall be liable for any loss, damage or injury to such property caused by it, or any common carrier to which such property shall be delivered, or over whose line it shall pass. The liability of a carrier for loss or damages to an interstate shipment is governed by the federal law and all State statutes, and regulations concerning such shipments are thereby superseded. Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400; Boston & M. R. R. v. Hooker, 233 U. S. 97; Great Northern R. Co. v. O’Connor, 232 U. S. 513 [8 N. C. C. A. 53]; Adams Exp. Co. v. Croninger, 226 U. S. 491; Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639. The only loss or damage the appellant is liable for under the Carmack Amendment is the loss or damage caused by it, and shrinkage would not come within that rule unless the proof should show the shrinkage was caused by it. The ruling on that question was reversible error under both the federal and the State law.

The court instructed the jury that for any com lost and not delivered, if any, the measure of damages was the market price of such corn' in Memphis on the day it should have been delivered. The shipments, being interstate, the shipper is presumed to know the provisions of the bills of lading. The freight paid was only for the com that was delivered. No freight was paid for the com alleged to be lost. Section 3 of the conditions attached to the bill of lading provided that: ‘ The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment under this bill of lading.” The shipment, being an interstate one, is not governed by the old Illinois rule, that the carrier must show that the shipper knew of any limitation in the bill of lading and assented to it. The shipper is presumed to know the contract, and the presumption is indulged that it is a binding contract. Kansas City Southern Ry. Co. v. Carl, supra; Missouri, K. & T. R. Co. v. Harriman Bros., 227 U. S. 657; Phœnix Ins. Co. v. Erie & W. Transp. Co., 117 U. S. 312; Tibbits v. Rock Island & P. Ry. Co., 49 Ill. App. 567. Section 10 of the "Uniform Bills of Lading Act," adopted in Illinois in 1911 (chapter 27, Hurd’s Rev. St., J. & A. ¶ 2175), provides that the consignor shall be governed by the terms or conditions on the back of the bill, so far as the same are not contrary to law or public policy. Under that act, the condition as to the measure of damages was valid and binding. Shellabarger Elevator Co. v. Illinois Cent. R. Co., supra. The condition on the bill of lading that the liability for loss shall be measured by the value of the goods at the place of shipment is valid, and controls the measure of damages. .

While it was stipulated what the cash value of the com was at the destination, the appellant made the stipulation with the reservation that such stipulation was not an admission that such value was the correct measure of damages. There was no evidence introduced concerning the stipulated measure of damages, and the instruction was erroneous.

It is also argued that the 17th instruction given at the request of appellee, which attempted to inform the jury as to the meaning of the phrase “loss caused hy discrepancies in elevator weights,” was erroneous in that it assumed that the weights given in the hills of lading were correct. We do not find any such assumption in the instruction, and the instruction did not give any information concerning the meaning of the phrase, if any was necessary.

It is also contended -that the court erred in refusing three instructions requested hy appellant. Two of these instructions informed the jury that the bills of lading were receipts and prima facie evidence that appellant received the amount of grain of the specific weight. One of them then told the jury that if the parties settled and paid for the freight on the basis of the weights in Memphis, then neither party would be bound by the weight as disclosed by the bills of lading.. Prima facie evidence is not conclusive evidence, but is evidence. sufficient to prove the averment of which it is prima facie evidence unless and until it is rebutted by evidence of equal weight. The prima facie evidence must prevail as to such averment unless it is neutralized or offset by evidence of equal weight, but the fact that freight was settled upon the basis of the weight in Memphis did not tend to contradict the prima facie evidence. The other instruction told the jury that if there was evidence tending to show that the weight as disclosed by the bills of lading was incorrect, then it is incumbent on appellee to establish by a preponderance of the evidence that grain of the weight as disclosed by the bills of lading was actually received. The court at the request of appellant gave eight instructions, three of which pointed out what were the material issues in each count, and all of them informed the jury that unless the material issues or the appellee’s case had been proved by a preponderance óf the evidence, the verdict must be for the appellant. There was no error in refusing said instructions for the reasons that so much of them as were proper were given in other instructions, and they were misleading in calling attention to particular portions of the evidence.

The third refused instruction of which complaint is made told the jury that the appellant is not required to establish by affirmative evidence any defense to appellee’s cause of action, and the burden of proof was on the appellee to make out its case by a preponderance of the evidence. The appellant undertook to prove that the loss was caused by shrinkage from natural causes. “In an action of this character, against a common carrier, to recover for the loss of goods which the carrier has failed to deliver, the law undoubtedly requires some proof that the goods were not delivered; but slight evidence will be sufficient to shift the burden of proof upon the common carrier.” Chicago & N. W. Ry. Co. v. Dickinson, 74 Ill. 249; Angell on Carriers, sec. 470; Woodbury v. Frink, 14 Ill. 279; Chesapeake & O. R. Co. v. Radbourne, 52 Ill. App. 205; 6 Cyc. 518; 5 Am. & Eng. Encyc. of Law 355. If the weights at the points of shipment and destination were as the evidence introduced by appellee tended to prove and there was a discrepancy, then the burden of explaining it was on the appellant. The instruction was very misleading and there was no error in its refusal.

For the reasons pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Hattie F. Kaufman, Appellee, v. Adam Helmick, Appellant.
    1. Tbtat., § 283

      —when special findings control. Under section 79 of the Practice Act (J. & A. ¶ 8616), when the special findings of fact are inconsistent with the general verdict the special findings control.
    2. Trial, § 246

      —when verdict erroneous as to one defendant must be set aside as to all defendants in action on negotiable instrument. Section 7b of the Negotiable Instruments Act (J. & A. ¶ 7626), which only authorizes the severance of judgments as to defendants defaulted and a trial and judgment as to other defendants, and authorizes a judgment against defendants standing trial who are found liable, and a judgment in favor of such defendants as by the verdict are found not liable, does not, in actions on negotiable instruments, change the common-law rule that where a verdict in an action ex contractu is erroneous as to one defendant it must be set aside as to all defendants standing trial before a jury.
    3. Evidence, § 459

      —when admission of on former trial is error. The admission of the evidence of a party given on a former trial is error where no foundation for the admission thereof, as disclosed by the record on appeal, was laid.
    4. Principal and surety, § 70

      —what is extent of liability of principal on forged note where part of proceeds of new note is used to pay old note. Where a note is paid by a surety with his own money the principal is not liable to the surety for the full amount of a larger note to which his name is forged, the extent of his liability being for the amount of money paid out by the surety for his benefit.
    5. Evidence, § 128

      —when as to amount of note is inadmissible. A promissory note is the primary evidence of its contents and evidence of the amount of the note is inadmissible, if no reason is given for the failure to produce it.
    6. Estoppel, § 65

      —when supposed maker is estopped to deny signature to forged note. If a broker acting for the seller of a note states to the maker the date and amount of a forged note he is offering for sale, and the maker, under a mistake of fact, the note not being shown to him, supposing the note inquired about is the one he in fact signed, and, proceeding on that false assumption, states that the note is his, he is estopped to deny that the signature is his, but if such facts are not fully stated to him he is not bound by such statement.
    7. Estoppel, § 39

      —when person not estopped by act or declaration consistent with good faith. An act or declaration consistent with good faith, the injurious effects of which could not be foreseen or anticipated by any ordinary forecast of mind, does not operate as an estoppel, although injury may result to a third party.
    8. Bills and notes, § 421

      —when evidence as to facts 'connected with conversation between broker and purported maker of forged note is admissible. In an action by the purchaser of a forged note, apparently signed by two persons, against the maker whose name was forged, it was proper for the defendant to show all the facts connected with a conversation by telephone with the broker of the seller relating to the genuineness of the note in suit, after having laid a proper foundation.
    9. Bills and notes, § 460

      —when question for jury whether purported maker of forged note admitted genuineness of signature. In an action on a note against the maker and a purported maker, whose name was forged by the other, where the evidence was conflicting, it was a question for the jury whether such purported maker stated, in the course of conversation over the telephone with the broker for the payee, whether the signature to the note sued on was his.
    10. Instructions, § 118

      —when erroneous. An instruction which has no basis in the evidence is erroneous.
    11. Trial, § 133

      —when error to refer to financial condition of party in argument. In an action against the purported maker of a promissory note, it is reversible error for counsel for plaintiff to refer in his argument to the business success and riches of defendant.
    Appeal from the Circuit Court of DeWitt county; the- Hon. George A. Sentel, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 19, 1918.
    Rehearing denied and opinion modified and refiled July 2, 1918.
    Herrick & Herrick, for appellant.
    L. W. Ingham and W. F. Gray, for appellee.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

On August 23, 1913, a judgment by confession for $899.35 was entered in favor of Hattie F. Kaufman in the office of the clerk of the Circuit Court of DeWitt county on a promissory note, with a cognovit attached, purporting to have been executed by Adam Helmick and his son Howard Helmick on August 14, 1912, for $825, payable one year after date to the order of J. F. Newbanks with interest at 7 per cent and $15 attorney fees. The note was assigned by Newbanks to plaintiff. The defendants presented to one of the circuit judges a motion to stay all proceedings on the judgment and for leave to plead, and in support of the motion filed affidavits to the effect that neither of them had signed, authorized the signing nor ratified the affixing of their names to the purported note. An' order was made allowing the motion. At the November term, plaintiff amended her declaration by adding the common counts to the count on the note. The defendants filed verified pleas of the general issue and that they did not make the note sued on. A trial before a jury resulted in a verdict and judgment for the defendants, which was reversed by this court for error in instructions. (Kaufman v. Helmick, 190 Ill. App. 487.) On a second trial, a jury returned a verdict, “We, the jury, find the issues for the plaintiff,” and also answered special interrogatories submitted by the defendants finding (1) that Howard Helmick did not sign the note; (2) that Adam Helmick had ratified, as his signature, the name Adam Helmick signed to the note; and (3) that Howard Helmick had not ratified the name Howard Helmick signed to the note. A motion for a new trial was entered by the defendants, each defendant assigning numerous reasons for the. motion. The court denied the motion of Adam Helmick for a new trial and rendered judgment that the judgment heretofore entered August 23,1913, in favor of the plaintiff against the defendant Adam Helmick for $899.35, stand in full force as of the date of said judgment, and that plaintiff have execution therefor, and as to the defendant Howard Helmick the court allowed the motion for a new trial. Both defendants excepted to the judgment and prayed separate appeals. The record does not show that any appeal bond was ever filed by either party defendant, but appellee has not raised any question over that fact, and the defendant Adam Helmick alone has assigned errors on the record.

The jury, by its answer to the second interrogatory, submitted to it by appellant, found that he “had ratified or adopted the name Adam Helmick” signed to the note. The jury, by its answers to the first and third interrogatives, found that Howard Helmick neither signed, adopted nor ratified the name Howard Helmick signed to the note. The special findings of the jury concerning the name Howard Helmick were contrary to the general verdict. The statute (section 79 of the Practice Act, J. & A. ¶ 8616) provides that when the special finding of fact is inconsistent with the general verdict the special finding shall control. The trial court had no alternative other than to grant a new trial as to Howard Helmick.

The first contention of Adam Helmick is that the court erred in rendering judgment on the verdict confirming the judgment of August 23, 1913, against him, and in granting a new trial as to the defendant Howard Helmick. ,In cases in tort, a court may set aside a verdict and grant a new trial as to part of the defendants, and may overrule the motion for a new trial as to other defendants and render judgment on the verdict in favor of the plaintiff against said other defendants. Appellee argues that section 7b of the Negotiable Instruments Act, as amended in 1895 (J. & A. ¶ 7626), authorizes the setting aside of a verdict and granting of a new trial as to part of the defendants and rendering judgment on the verdict against others. The act only authorizes the severance of judgments as to defendants defaulted and a trial and judgment as to other defendants, and authorizes a judgment against defendants standing trial who are found liable, and a judgment in favor of such defendants as by the verdict are found not liable. This act does not, in actions on negotiable instruments, change the common-law rule, that where a verdict in an action ex contractu is erroneous as to one defendant it must be set aside as to all defendants standing trial before a jury. Morehouse & Wells Co. v. Schwaber, 118 Ill. App. 44.

It is also assigned for error that the court erred in permitting the evidence of Newbanks, heard at the former trial, to be read to the jury on this trial, over the objection that a proper foundation, for its admission had not been laid. The abstract purports to contain an affidavit, made by one of the attorneys for appellee, stating that Newbanks, who testified on the former trial, “is now to the best information and belief that can be ascertained by affiant, out of the State of Illinois and beyond the jurisdiction of the court”; that he had diligently sought to find his place of residence but had learned that he had left the State of Illinois and had gune to the State of Iowa, but his residence cannot be ascertained and his deposition cannot be procured. The bill of exceptions does not contain any such affidavit. The record does not show any foundation for the admission of the evidence given on a former trial; its admission under such circumstances was error.

It was stipulated on the trial that the name “Adam Helmick” on the note sued upon was not written by appellant, and the only contentions made by appellee concerning appellant’s name on the note were that he had approved his name being on the note by permitting part of the proceeds received from the sale of the forged paper to be used in the payment of another note claimed to have had his name on it, because he had not offered to return the money so applied, and also that he had ratified the execution of the note by acknowledging that he had signed it, to an agent or broker acting for the payee, which acknowledgment was communicated to appellee before she purchased it, and was thereby estopped to deny its execution.

Regarding the first contention, Newbanks at the first trial of this case testified that he wrote out the note sued on and Howard Helmick took it away and returned in a short time with appellant’s name on it, and signed it and delivered it to him; that at that time he had a conversation with Howard regarding certain notes made by Howard and himself and that “the Walden note I had taken up for Adam Helmick and mailed Adam Helmick the note personally myself.” The Walden note was for $230 and was the only note claimed by appellee to have been paid to which Adam Helmick’s name was signed. Adam Helmick testified that he never made or saw such a note. It would appear from the evidence that the Walden note, even if it had been made by appellant, was not paid with the proceeds of the note in suit, neither is it claimed it was paid at the request of or with the knowledge of appellant. If the Walden note for $230 was made by Adam Helmick and Newbanks, and New-banks was only surety on it, and as such surety paid it with his own money, no reason is given nor is any authority cited showing that Adam Helmick would thereby be made liable for the payment of a forged note for $825 put in circulation by Newbanks after he had paid off the Walden note for Adam Helmick; all that appellant would be liable for would be to Newbanks for the money paid out by him for the use of appellant. Concerning the second contention, L. E. Stone, an attorney, testified, on behalf of appellee, that he had been the attorney for the Helmicks and that before August 15, 1915, he had negotiated several notes for Adam and Howard Helmick; that he had information that Adam Helmick had denied that notes with his name on them had been made by him; that on August 14th or 15th, Newbanks brought the note in suit to him to negotiate and that he had taken the note to the store of L. Freudenstein and son, and there called up Adam Helmick over the telephone and said to him that he had a note dated August 14, 1912, payable to J. F. Newbanks for $825 signed by him and Howard; that Newbanks wanted him to sell, and he had arranged to sell it through Freudenstein and “wanted to know whether it was genuine. It is your note and Howard’s note, and he answered back, it is all right, * * * we gave that note to take up certain obligations” mentioning a certain note Harve Campbell held. Appellant’s name was not on the Campbell note and appellant denied the conversation as testified to by Stone. His version of that conversation is that Stone asked him if he had signed a note, but did not mention the amount or date or New-banks’ name, and that he replied he had signed a blank note and Howard had taken it away. He also testified that the date of that note he had signed was August 12,1912, and that the note was filled out except the name of the payee. This answer was, on motion of appellee, excluded and an objection was sustained to a question concerning the amount of that note, which counsel state was for $850. The ruling of the court was proper for the reason the note was the primary evidence of its contents, and no reason is given for the failure to produce it. If it had been produced, then he .might have pointed out what was in it when executed by him.

A person who has signed a note of like character, and who, under a mistake, admits the signature of one, is not estopped from his plea denying his signature, especially if the note is not shown him. (Hefner v. Vandolah, 62 Ill. 483.) The note appellant had signed bore a different date from the one sued upon. If the broker stated to appellant the date and amount of the note he was offering for sale and appellant, under a mistake of fact, the note not being shown to him, supposing the note inquired about was the one he had signed, and, proceeding on that false assumption, stated the note was his, we are of the opinion he would be estopped to deny the signature was his, but if such facts were not fully stated to him, he would not be bound by such statement. “An act or declaration consistent with good faith, the injurious result of which could not have been foreseen or anticipated by any ordinary forecast of mind, certainly ought not to operate as an estoppel, although injury may result therefrom to a third party.” Hefner v. Vandolah, 57 Ill. 520; note to Shinew v. First Nat. Bank of Bowling Green, 36 L. R. A. (N. S.) 1006. The appellant was entitled to show all the facts connected with the conversation with Stone after having first laid a proper foundation, and it was a question for the jury whether he did or not state that the signature to the note sued upon was his.

The court gave an instruction that if the jury believed Howard Helmick placed the name Adam Hel•mick on the note with the consent of Adam Helmick, then the defendants would be bound by such action. There was no evidence on which to base such instruction.

Another instruction was given based on the theory that Adam Helmick had signed the note or authorized some other person to sign it for him. This was directly in conflict with the stipulation, and there was no evidence tending to show he had authorized any other person to sign it for him.

Complaint is also made concerning other instructions, but the questions raised have already been disposed of in the legal propositions announced.

Error is assigned that counsel made improper and prejudicial statements during the trial and in argument. Counsel on both sides appear to have been under high pressure and to have lost their self-cohtrol. A reading of the record discloses continual comments on the evidence while it was being introduced, statements of purported facts not based on the evidence, and criticism of counsel which obviously tended to divert the attention of the jury from the evidence to immaterial things. It is not necessary to discuss these matters further than to state that the reference in the argument of counsel for appellee to the riches and business success of appellant was an appeal to the prejudices of the jury, which was reversible error.

The question has not been argued whether a court of law can enter an order sustaining a judgment in part and not disposing of the remainder of the judgment, and we express no opinion on that question.

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

Reversed and remanded.


text:
    Road District Number Eleven, in Scott County, Illinois, Appellant, v. Irwin F. Coultas, Sheriff, Appellee.
    1. Appeal and ebrob, § 25

      —when Appellate Court has no jurisdiction. The Appellate Court has no jurisdiction In cases where the validity of a statute is involved.
    2. Pleading, § 355

      —discretion of court as to allowing withdrawal of pleas. It is discretionary with the trial court to allow or refuse to give a defendant leave to withdraw pleas in a cause.
    3. Pleading, § 355

      —when discretion in alloiving withdrawal of pleas not abused. The discretion of the trial court in allowing the withdrawal of the plea of general issue and two special pleas in a case was not abused where plaintiff was not injured by the order allowing such withdrawal.
    4. Pleading, § 190

      —when plea defective in form is bad as against special demurrer. In an action of assumpsit by a road district, comprised within the corporate limits of a city, against the county tax collector to recover taxes collected in such district but not paid over, a plea of payment containing the informal averment that defendant had paid to the officers of plaintiff “all the revenues in his hands that should be paid to or for the use of said plaintiff” is bad as against a special demurrer.
    5. Pleading, § 190

      —how defects in form of plea may be raised. A formal defect in a plea cannot be questioned by a general demurrer, a special demurrer assigning the special objection being necessary.
    6. Appeal and error, § 1455

      —when not reversible error to overrule general demurrer to all of pleas. It is not reversible error to overrule a general demurrer to all the pleas interposed in a case, if a single plea presents a good defense to all the causes of action, where the case is disposed of against plaintiff on the plea that presents a good defense.
    Appeal from the Circuit Court of Scott county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 19, 1918.
    James CAllans, J. O. Priest and T. J. Priest, for appellant.
    John A. McKeene and J. M. Riggs, for appellee.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

Road District Number Eleven, in Scott county, Illinois, brought suit in assumpsit against Irwin F. Coliltas, who was the sheriff and tax collector of Scott county. The declaration consists of common counts, and also special counts, averring that the defendant, in the early months of 1916 and 1917, collected from the taxpayers of Road District Number Eleven, in said county, taxes regularly assessed, amounting to $5,000, that it was the duty of defendant to pay to plaintiff and which he has neglected and refused to do.

The defendant filed the general issue and two special pleas. The plaintiff joined issue on the first plea and demurred specially to the other pleas for the reason that they concluded to the country when they should have concluded with a verification. The defendant thereupon entered a motion for leave to withdraw the first plea. The court allowed the motion and the general issue was withdrawn. The defendant then entered a motion for leave to withdraw the second and third pleas. This motion was also allowed and the pleas withdrawn and leave w¡as given the defendant to file further pleas. Thereupon the defendant filed two other special pleas. The first of these special pleas avers that the City of Winchester is a city organized under the Cities and Villages Act of 1872, and that in 1913 the county hoard of Scott county made an order by which it attempted to create a road district out of the territory contained within the bounds of the City of Winchester and named said district Road District Number Eleven, and that T. B. Dawson and P. D. Smith pretend to he, respectively, road commissioner and district clerk of said supposed district, which is the plaintiff. The plea then avers that the City of Winchester ever since its organization has maintained its city organization, has a mayor, city council and other officers provided for in the Cities and Villages Act, with a superintendent of streets and a committee having exclusive jurisdiction over all streets, alleys, bridges, etc., within the city, and that the city has control over the management and improvement of all streets, and that the officers of plaintiff have no control or right to interfere with the city’s management thereof. It further avers that all revenues collected by defendant for road and bridge purposes within the territory within the city are the property of the city; that the officers of plaintiff are not entitled to any portion thereof and that the supposed causes of action in the several counts of the declaration mentioned áre the same, to wit, the revenue collected by the defendant for repairing streets, etc., within said city.

■ The second further plea avers that the said causes of action in the several counts mentioned are one and the same cause of action: “to wit, the supposed public revenues collected by him as collector of said county, and he avers that heretofore he has paid to the officers of plaintiff all of the revenues in his hands that should be paid to or for the use of said plaintiff, and this he is ready to verify, wherefore, etc.”

The defendant filed a general demurrer to the two further pleas. The demurrer was overruled, and leave given to plaintiff to reply. The plaintiff thereupon elected to stand by its demurrer and the court entered judgment against the plaintiff.

Counsel for appellee have in their argument presented the question of the validity of section 41 of the Tice Road Act [Callaghan’s 1916 St. Supp. ¶ 10000(41)]. If the judgment in this case depended upon that question, then this court would not have jurisdiction because the Appellate Court has no jurisdiction in cases where the validity of a statute is involved, but no assignment of error raises the question of the validity of the statute, and the decision of that question is not necessary for the disposal of the case.

The appellant assigns for error that the court erred in granting leave to appellee to withdraw its pleas first filed, and in granting leave to plead further, and argues that those pleas were bad on demurrer. It is discretionary with the court to allow or refuse to give a defendant leave to withdraw pleas in a cause. New England Fire & Marine Ins. Co. v. Wetmore, 32 Ill. 221; Miles v. Danforth, 37 Ill. 156; Leonard v. Patton, 106 Ill. 99. The appellant is in no different situation than it would have been in if its demurrer had been sustained and leave given to plead over. Appellant •was not injured by the order granting leave to appellee to withdraw the pleas first filed.

The second further plea is a plea of payment to the plaintiff. It is somewhat informal in the averment that appellee had paid to the officers of appellant “all the money in his hands that should be paid to or for the use of said plaintiff.” The plea would be bad against a special demurrer, because of the inference that appellee exercised his judgment on what should be paid to appellant. That question, however, cannot be raised by a general demurrer, as matters of form can only be reached by a special demurrer assigning the special objection. 6 Encyc. of Pl. & Pr. 307; Wilkinson v. Cosmopolitan Life Ins. Ass’n, 154 Ill. App. 195.

If a single plea presents a good defense to all the causes of action in suit, then it is not reversible error to overrule a general demurrer to all the pleas (Stacy v. Baker, 2 Ill. 417; Patmor v. Haggard, 78 Ill. 607; 6 Encyc. of Pl. & Pr. 305), where the case is disposed of against the plaintiff on a plea that presents a good defense, for the reason that no injury results from erroneously overruling a demurrer to a bad plea when the judgment is rendered on a good plea, hence it is not necessary to pass upon the ruling of the trial court in sustaining the demurrer to the first of the further special pleas.

There is no reversible error presented for review. The judgment is affirmed.

Affirmed.


text:
    Edgar A. Sims et al., Appellants, v. Etta Sims Hays et al., Appellees.
    1. Common law, § 1

      —how far law of England in force. The common law of England, so far as the same is applicable and of a general nature, is in force in this State with reference to the revocation and revival of wills, except in so far as it has been repealed by statute.
    2. Wills, § 123

      —when devise of land is not revived. A devise of land by a testator, who afterwards sells the land, is not revived by the testator subsequently reacquiring title to the land.
    3. Wills, § 122

      —when conveyance operates as revocation of will. Where a will directs the sale of land and the distribution of moneys realized from such sale, and the testator subsequently conveys the land, such conveyance is a revocation of the will as to such land, and the devisee of the land has no interest in the fund produced by such sale, even though it can be traced and identified.
    Appeal from the Circuit Court of Macoupin county; the Hon. Fbank W. Bouton, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 19, 1918.
    Jesse Peebles, for appellants.
    Alexander H. Bell, for appellee Etta Sims Hays.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Edgar A. Sims and John M. Sims filed the bill in this case praying for a construction of the will of Mary A. Sims, dated March 8, 1917, and that the proceeds of a note for $1,500 be decreed to be distributed amongst the children of Mary A. Sims and the descendants of the deceased. The provisions of the will of which a construction is asked are:

“First: That is to say that I desire that my youngest daughter, Etta Sims, have all the personal property of whatever kind or character that I may he possessed at the time of my death.
“Second: As to the real estate consisting of eighteen acres of land in Section No. Eight (8) in Township No. Twelve (12) North Range No. Eight (8) west of the third principal meridian in Macoupin County in the State of Illinois as well as any interest I may have in other lands or in lands that I may come in possession before my death, I desire to be disposed of in manner following: As soon as convenient after my death, I direct that my executor shall sell said real estate to the highest bidder for cash and that out of the proceeds arising from said sale she shall pay first all my just debts including my funeral expenses and expenses attending my last illness, all moneys remaining after the debts and Court costs are paid I desire that it be divided into five equal parts and given to my five children living, viz., Edgar A. Sims, Emma A. Baird, John M. Sims, Charles M. Sims and Etta Sims, each child a part, and in the event of the death of any or all of- my children then the children of said deceased to receive the one part that would have gone to the parent. And in the event of one of my heirs die without issue then that part shall be divided equally between the surviving heirs as before specified.”

After the making of the will, Mary A. Sims conveyed the land described in the will to her daughter Etta Sims, and took back a promissory note for $1,500. This note she held at the time of her death in November, 1915. The court heard the cause on the bill and answer of Etta Sims Hays and entered a decree that under the will Etta Sims takes all the personal property owned by the testatrix at the time of her death, including the promissory note taken for the land sold, and that the complainants have no interest in the proceeds thereof. The complainants appeal. •

The contention of appellants is that the second clause of the will directing the executor to sell the land and divide the proceeds was a bequest of personalty, and that the beneficiaries under the will of the proceeds under a sale made by the executor, if the testatrix had not sold it in her lifetime, would still be entitled to the proceeds resulting from a sale made by her, because the will directed the executor to sell the land and divide the proceeds in a certain way.

The common law of England, so far as the same is applicable and of a general nature, is in force in this State with reference to the revocation and revival of wills, except in so far as it has been repealed by statute, and a devise of land by a testator, who afterwards sells the land, is not revived by the testator subsequently reacquiring title to the land. Phillippe v. Clevenger, 239 Ill. 117.

When a will directs the sale of land and the distribution of the moneys realized from such sale, and the .testator subsequently conveys the land, such conveyance is a revocation of the will as to such land, and the devisee of the land has no interest in the fund produced by such sale, even though it can be traced and identified. Jarman on Wills (6th Ed.), 164, star paging 129; In re Miller, 128 Iowa 612; McNaughton v. McNaughton, 34 N. Y. 201; Arnold v. Arnold, 1 Bro. Ch. (Eng.) 401; Sharp v. McPherson, 10 Ohio Cir. Ct. R. 181; In re Dowd, 58 How. Pr. (N. Y.) 107; note to Ametrano v. Downs, 58 L. R. A. 719; 40 Cyc. 1207.

The decree in this case follows the rule announced in the foregoing decisions and no case is cited announcing any different rule. The decree is affirmed.

Affirmed.


text:
    The United Cigar Stores Company, Appellant, v. Worth-Gyles Grain Company, Appellee.
    1. Landlord and tenant, § 87

      —when deemed that parties understood that premises were not to he occupied for another year. It must be deemed that both landlord and tenant understood and intended that the premises, which had been rented for the term of one year ending on the 31st of December at 8 a. m., were not to be occupied by the tenant for another year, where the landlord wrote to the tenant early in December inclosing a lease, and, upon the tenant failing to sign it, wrote to him that if the lease for the next year was not signed and received by Saturday (December 30th) it would feel at liberty to lease the premises to another person January 1st, and on December 29th the tenant telegraphed the landlord that he had decided to move and would surrender the building on January 1st and the landlord did not answer the telegram.
    2. Time, § 1

      —exclusion of hath Sunday and New Tear’s Bay in computation of. Both Sunday and New Year’s Day are to be excluded in determining the time within which a tenant must vacate premises, rented for the term of one year expiring December 31st at 8 a, m., where December 31st falls on Sunday.
    3. Landlord and tenant, § 88

      —when tenancy from year to year not created hy tenant holding over. A tenant cannot be held to have become a tenant from year to year because he did not vacate the premises before 8 a. m. on the 31st of December of the year for which the premises were rented, as required by the lease, where the 31st of December fell on Sunday, and neither the landlord nor the tenant intended that the tenant should be a tenant for another year, even though he could have vacated the premises on Sunday without disturbing the peace and good order of society.

      4. Words and phrases—“holiday” defined. A “holiday” is a day on which ordinary occupations are suspended.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 19, 1918.
    Rayburn & Buck, for appellant; Musgrave, Oppenhbim & Lee, of counsel.

      Frank Gillespie and Thomas S. Weldon, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

The United Cigar Stores Company began this suit before a justice of the peace January 25, 1917, against the Worth-Gyles Grain Company to recover $50 claimed to be due for rent. From a judgment for the defendant before the justice of the peace, plaintiff took an appeal to the Circuit Court. At the trial in the Circuit Court a verdict was directed for the defendant, on which judgment was rendered. The plaintiff appeals to this court.

The appellee occupied a room rented from appellant under a written lease for a term commencing January 1, 1916, “and ending on the 31st day of December, 1916, at 8 a. m.” at an annual rental of $600, payable in equal monthly payments in advance on the first day of each month. Early in December, 1916, appellant wrote to appellee from Chicago inclosing a lease for another year. Appellee did not execute the renewal lease. On December 27th, appellant wrote to appellee that if it did not receive the lease signed for the coming year by Saturday, it would feel at liberty to lease the premises to another on January 1st. On December 29th, appellee sent a telegram to appellant that he had decided to move and would surrender the building on January 1st. Appellant did not reply to this telegram. December 31, 1916, was Sunday. The appellee prepared to move out of the building. He transacted no business in the building on New Year’s Day, January 1st, but moved out and surrendered the keys in the forenoon of that day to the agent of appellant.

It is insisted by appellant that by not moving before 8 a. m. Sunday, the appellee became a tenant from year to year and liable on January 1st for $50 rent for that month.

The letter of appellant of date December 27th, and the telegram of appellee to appellant of date December 29th, which was not answered by appellant, demonstrate that both the parties understood and intended that the premises were not to be occupied by appellee as a tenant for another year.

While all work on Sunday is not forbidden in Illinois by statute, the Criminal Code provides in section 261 (J. & A. ¶ 3948) that: “Whoever disturbs the peace and good order of society by labor, or by any amusement or diversion on Sunday, shall be fined not exceeding $25.” When the last day of a term within which an act is to be performed falls on Sunday, then the usual rule is that the party has the following day to perform it, and it has been held that when a lease expires on Sunday the tenant has the following day to vacate the premises. Tiffany on Landlord & Tenant, vol. 2, p. 1468; Frost v. Akron Iron Co., 1 N. Y. App. Div. 449, 37 N. Y. Supp. 374; 28 Am. & Eng. Encyc. of Law 224; Pressed Steel Car Co. v. Eastern Ry. Co. of Minnesota, 121 Fed. 609. “Both at common law and by statute, when the last day of a period in which an act is to be done falls on a legal holiday, that day is excluded- and the act may be done on the next succeeding day, and where the next day is a Sunday, performance may be had on the next secular day.” 38 Cyc. 331.

A “holiday” is a day on which ordinary occupations are suspended. “The first day of January, commonly called New Year’s Day, the twenty-second day of February * * * are hereby declared to be legal holidays # * J. & A. St. ¶ 7638. This provision of the statute is in the chapter concerning negotiable instruments and these days are by custom universally observed as holidays.

Appellee might have vacated the premises on Sunday, if such act would not have disturbed the peace and good order of society, yet it may not be punished by being held to have become a tenant from year to year because it did not vacate on that day, when neither of the parties intended that appellee was to be a tenant for another year. Clinton Wire Cloth Co. v. Gardner, 99 Ill. 165. There was no error in directing a verdict for the appellee. The judgment is affirmed.

Affirmed.


text:
    E. B. Conover & Company, Appellees, v. The Baltimore & Ohio Southwestern Railroad Company, Appellant.
    1. Carriers, § 160

      —when provision in shipping contract limiting time for malcing claim for damages is valid. A provision in a shipping contract, limiting the time within which a claim for damages may he made and fixing the manner and place of making it, is valid and binding, and a failure to give notice is fatal to plaintiff’s right to recover unless it is contrary to law or unreasonable.
    2. Evidence, §109

      —necessity of producing best. The best evidence must be produced of which the nature of the case is capable, and no evidence should be received which presupposes better evidence behind in the party’s possession or power.
    3. Evidence, § 138

      —when secondary evidence of claim for damages is inadmissible. The best evidence of a claim for damages against a carrier for negligence in the transportation of grain is the claim itself, and secondary evidence of its contents is inadmissible where no attempt has been made to require the carrier to produce the claim so as to make a foundation for the admission of secondary evidence, upon the failure of the carrier to comply with the notice.
    4. Evidence, § 115

      —what is best of contents of private writing. The best evidence of the contents of every private writing is the writing itself.

      5. Commerce, § 5

      —what law governs as to loss of or damage to freight in transit in interstate. Suits for loss of and for damage to freight in transit in interstate commerce are exclusively controlled by the Interstate Commerce Act and the Carmack and Cummins Amendments thereto.
    6. Cabbiebs, § 162

      —when written notice of claim is unnecessary. Under the Cummins Amendment to the Interstate Commerce Act, relating to the liability of an initial carrier for loss, damage or injury to property caused by any common carrier to whom the property is delivered or over whose line it shall pass, and providing “that if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery,"’ damages caused by delay in transit resulting from deterioration are exempted from the requirement of a written claim as a condition precedent to recovery.
    7. Cabbiebs, § 162

      —when notice of claim of loss of grain is necessary. Loss of grain from a car is not within the provision of the Cummins Amendment to the Interstate Commerce Act, that “if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.”
    8. Instructions, § 145

      —duty of attorneys for respective parties to prepare. It is the duty of attorneys for the respective parties to prepare such instructions pertinent to the issues as they desire, and the failure of the court to give them on its own accord is not error.
    Appeal from the Circuit Court of Sangamon county; the Hon. Elbebt F. Smith, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 19, 1918.
    Graham & Graham, for appellant; Edward Barton and Charles B. Webber, of counsel.
    H. L. Child, for appellees; Wilson, Warren & Child, of counsel.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

E. B. Conover & Company is a partnership engaged in Sangamon and adjoining counties in Illinois in buying and shipping grain. It brought this suit to recover damages claimed to have been sustained on three carloads of shelled corn shipped, two from Cass county, Illinois, and one from Christian county, to Baltimore, Maryland. The declaration contains a count based upon each car. In each of two counts it is averred that plaintiff delivered a car of grain to the defendant for transportation to Baltimore; that it became the duty of defendant to carry the grain within a reasonable time and to use due care in caring for said grain and not permit it to heat or otherwise deteriorate; that the defendant failed to deliver the grain within a reasonable time in as good condition as when received by it, but negligently permitted the grain to deteriorate in quality. A third count avers that there was a shortage of corn in a third car when it reached its destination. One car containing 1,360 bushels of com was shipped from Philadelphia, Illinois, February 17, 1916, and was delivered at Baltimore, Maryland, April 22, 1916. Another car containing 1,185. bushels was shipped from Bluff Springs, Illinois, February 17th, and arrived at Baltimore, April 22nd. The third car was shipped from Breckenridge, Illinois, to Baltimore, and in that car there was a shortage of 7,490 pounds. It is claimed that the corn in the cars shipped from Philadelphia and Bluff Springs heated and rotted in the cars because of the delay in transit. A jury returned a verdict in favor of plaintiff for $544, on which judgment was rendered. The defendant appeals.

The shipments were all interstate. The suit is against the initial carrier. Through bills of lading were issued. One of the conditions of the bills of lading is: that claims for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after the delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable. On two of the shipments the only claim of damages is for deterioration caused by delay because of congestion over the route of the final carrier. What was said in Conover v. Wabash Ry. Co., 208 Ill. App. 105, concerning that question applies to these two shipments and to the measure of damages on those shipments, and repetition thereof is unnecessary.

The only damages claimed on the third car are for loss of com shipped. The appellee apparently was of the opinion that proof of presentation of claims for damages in writing was necessary, although it argues in this court that such proof was unnecessary, etc., and cites Baxter v. Louisville, N. A. & C. Ry. Co., 165 Ill. 78, as authority for its contention that the notice referred to is collateral and not necessary to be shown to entitle it to a recovery. The holding of the court in that case was that the notice provided for was unreasonable and therefore void. It does not sustain the contention of appellee. The bills of lading introduced in evidence by appellee show that the filing of the notice of claim in writing is a condition precedent to bringing suit. The rule is that a provision in a shipping contract, limiting the time within which a claim for damages may be made and fixing the manner and place of making it, is valid and binding, and a failure to give notice is fatal to plaintiff’s right to recover unless it is contrary to law or unreasonable. St. Louis, I. M. & S. Ry. Co. v. Stairbird, 243 U. S. 592; Clegg v. St. Louis & S. F. R. Co., 203 Fed. 971; Sweetser v. Chicago & A. R. Co., 196 Ill. App. 623; 4 R. C. L. 794, 922.

Appellee called a witness, John McHenry, who testified on that question. Appellant contends that the court erred in overruling objections made to the testimony of this witness for the reason that the evidence was secondary and not the best evidence. The evidence of the witness on that question is:

“I would know by referring to the claims whether or not the claims were filed with defendant company in this case.
“Q. Was there a claim filed in each of these cars?
“Objected to by the defendant as not the best evidence.
“Overruled. Exception.
“A. Yes, sir, there was.
“I know whether claim was filed with the defendant carrier by the E. B. Conover Grain Company on B. & O. car 90779 out of Berry, Ill., December 17, 1915.
“Q. On what date, if you know, was claim filed with the defendant carrier?
“Objected to by defendant as not the best evidence.
“Overruled. Exception.
“A. February 23, 1916.
“I know whether claim was filed with the defendant carrier on car B. & O. 85201 out of Bluff Springs, Ill., February 17, 1916. Claim was filed on June 6, 1916. I know whether claim was filed with the defendant carrier on car A. T. & S. F. 29193 out of Philadelphia, Ill., on February 17, 1916. Claim was filed with the defendant carrier on June 9, 1916.
“Mr. Child: Let me have the paper, Mr. McHenry.”

The foregoing was all the evidence offered on that question. The witness did not testify that any claim was made in writing. If a claim was made in writing, then the appellant should have been notified to produce the writing in order to lay a foundation for the introduction of secondary evidence. It is a well-established rule that the best evidence must be produced of which the nature of the case is capable, and no evidence shall be received which presupposes better evidence behind in the party’s possession or power. If from the nature of the case it be manifest that a more satisfactory kind of evidence exists and is attainable, the party will be required to produce it, or account for its nonproduction. (2 Encyc. of Ev. 276.) The best evidence of the contents of every private writing is the writing itself, and the writing must be produced for that purpose. (2 Encyc. of Ev. 281.) “Secondary evidence of a paper, not in the possession or control of the party offering it, is not authorized by the mere fact that the party against whom the secondary evidence is offered has possession or control of the primary evidence, but notice to such party to produce the primary evidence must first be given. ’ ’ (2 Encyc. of Ev. 352; Wright v. Raftree, 181 Ill. 464; Holbrook v. Trustees of Schools, 22 Ill. 539; International Text Book Co. v. Mackhorn, 158 Ill. App. 543.) Section 9 of chapter 51 of the Statutes of Illinois (J. & A. ¶ 5526) (Evidence Act) provides that courts shall have power, in any action before them, upon motion and good and sufficient cause shown and reasonable notice thereof, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue. A failure to produce papers after notice will justify the admission of secondary evidence. No attempt was made to secure the primary and best evidence. The witness only testified to his conclusions and not to facts. He did not even testify that a claim in writing was filed or how, where or with whom it was filed further than to say a claim was filed with defendant carrier. The objection, being specific and pointing out that it was not the best evidence, should have been sustained.

It is insisted by appellee that the federal statutes exempt claims for loss of grain from a shipment, from the requirement contained in the bill of lading, that “claims for loss, damage or delay must be made to the earner in writing * * * within four months after delivery of the property,” or, in case of failure to deliver, within four months after a reasonable time for delivery has elapsed. Suits for loss of and for damages to freight in transit in interstate commerce are exclusively controlled by the Interstate Commerce Act and the amendments thereto, known as the Car-mack Amendment enacted in 1906, and the Cummins Amendment to the Carmack Amendment adopted in 1915 (U. S. Stat. 1915, page 1196; Adams Exp. Co. v. Croninger, 226 U. S. 491; Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400.) The Cummins Amendment provides that the receiving carrier shall issue a bill of lading and shall be liable for any loss, damage or injury to such property caused by any common carrier to whom such property shall be delivered, or over whose line said property shall pass, and no contract, receipt, rule, regulation or other limitation shall exempt such, carrier from the liability hereby imposed, and such carrier shall be liable to the holder of the bill of lading or any party entitled to recover thereon for the full actual loss, damages or injury to such property, notwithstanding any limitation of liability or of amount of recovery or representation or agreement as to value in such bill of lading: “Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law: Provided further, That it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days, and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: Provided, however, That if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.”

In Conover v. Wabash Railroad, supra, this court recently held that the last proviso of the Cummins Amendment exempted damages caused by delay in transit resulting in deterioration from the requirement of written notice of claim as a condition precedent to recovery.

In this case an additional question is presented: Whether that amendment exempts damages resulting from loss of grain from a car from the requirement provided for in the bill of lading that the carrier shall not be liable for loss, damage or delay unless claim shall be made to the carrier within four months after delivery, etc.

Loss of grain from a car cannot reasonably be included in the exemption of “loss, damage or injury * * * due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence.” It was necessary to prove that a claim in writing was made to the carrier, either at the point of delivery or at the point of origin of the shipment, within four months.

It is also argued that the court erred in not giving the jury some instructions for their guidance in assessing damages. It is the practice in this State for counsel for the respective parties to prepare such instructions pertinent to the issue as they desire given. If counsel for appellant had prepared and presented a proper instruction, the court would undoubtedly have given it. We see no reason why counsel should criticize the court and opposing counsel for not doing what they might or should have done. ' The proposition advanced by them is novel, but we know of no authority requiring either the court or opposing counsel to prepare and give instructions as to the law of the case.

Because of the error in admitting secondary evidence of filing notice of claim, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Sarah Smith, Appellee, v. People’s Life Insurance Company, Appellant.
    Insurance, § 490

      —when fraud in procuring release shown. Fraud in the procurance of a release of a life insurance company from liability on a life insurance policy was established where it appeared that the policy had been running. for three years and was, by its terms, incontestable after one year, and the evidence of plaintiff tended to show that the beneficiary had never read the policy and did not know it contained the incontestable provision; that an agent of the insurer went to the beneficiary shortly after the death of insured and told her that her claim had been rejected because there had been a misrepresentation of facts when the application for the policy was made and that the company was not liable but would pay her one-fifth of the policy; that he increased his offer, finally telling her she would have to sign the 'release and accept two-fifths of the amount of the policy or sue the company and get nothing, and that she finally accepted the * money and signed the release and defendant’s agent denied making such statements.
    Appeal from the Circuit Court of Vermilion county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 19, 1918.
    Statement by the Court. Sarah Smith brought suit in assumpsit in September, 1915, against the People’s Life Insurance Company upon a life insurance policy issued on September 12, 1912, by the defendant on the life of one Ruby Hutchinson, for $500. The declaration averred that the insured died April 7, 1915; that plaintiff was the beneficiary; that the policy was issued to and held by the insured until her death; that all premiums had been paid; that April 9,. 1915, an agent of defendant obtained the policy from the plaintiff stating it was necessary to send it to defendant and that the insured had complied with all the terms of the policy. The defendant filed seven pleas, among them being pleas of release by deed, surrender of the policy and satisfaction of the same by the payment of $200, and that the policy was obtained by fraud in that the answers in.the application and medical examination were untrue.
    Replications were filed setting up fraud and intimidation in obtaining the surrender of the policy and the release. A demurrer was sustained to the replications to some of the pleas, whereupon the cause was transferred to the chancery side of the docket, and a bill filed alleging the facts averred in the declaration, and that the policy contains a provision under which it became incontestable after one year from its date, if the premiums were paid; that an agent of defendant represented to complainant on April 9,1915, that it was necessary to surrender the policy in order to make a settlement and that it would be returned to her upon making proof of death, and that the sum of $500 would be paid to complainant; that proofs of death were made and all conditions of the policy complied with and complainant did not come within any of the exceptions mentioned in the policy; that complainant had never read the policy and had no knowledge of the incontestable provision; that she had received $200 and that the defendant had obtained a release from her by fraud. The bill prayed that the release be declared null and void except as to the payment of the sum named therein, and that the defendant be decreed to pay the remaining $300 and interest and for general relief.
    The defendant answered the bill, neither admitting nor denying its allegations, except that it denied the reception of proofs of death and the allegations of fraud, and stating that the release was knowingly executed without any fraud and that the policy was obtained by fraudulent representation.
    The cause was referred to the master in chancery, who reported the evidence with his findings: That there was no honest dispute about the validity of the claim and that the agent of defendant represented to complainant that there were false representations in the application which vitiated the policy, and took advantage of the mental and financial condition of complainant to obtain the execution of the release by representing that the claim had been rejected, when the policy was in fact incontestable at the time of the death of the insured. The defendant filed exceptions to the master’s report which were overruled by the court and a decree entered setting aside the release except as to the amount paid, and ordering that defendant pay the complainant $300 with interest thereon at 5 per cent from May 19, 1915. The defendant appeals.
    Walter H. Eckert and Lindley, Penwell & Lindley, for appellant; Walter C, Lindley, of counsel.
    L. A. Cranston, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

The appellant issued its policy on the life of the insured September 1,1912. It contains the provision: “This policy shall be incontestable, after one year from its date of issue, for the amount due, provided premiums have been duly paid, except, as herein provided, for military or naval service in time of war.” The agent who took the application also collected the premiums monthly, collecting the last one the day before the insured died from pneumonia. The insured died April 7,1915. The insured had not been engaged in war or naval service, hence the policy was incontestable for any reason at the time of her death. The second day after the death of the insured the agent of appellant, who procured the . application and collected the premiums, went to the residence of the beneficiary and obtained from her the policy, telling her it would be a week or ten days before she received payment.

Appellant itself made settlements with beneficiaries for deaths of those insured, but sent the checks to the local agents to deliver to the beneficiaries. The local agent of appellant notified appellant of the death of the insured, and the appellant sent blank proofs of death to him and proofs of death were made as required by the policy. On the evening of May 18, 1915, Andrew Myhrum, an agent of appellant, went to the residence of appellee with the local agent, with a release under seal, in which the appellee, in consideration of $200 to be paid to her within three days after the execution of the release, released and discharged appellant from all liability under the policy on the life of the insured.

The evidence tends to show that appellee had never read the policy and did not know it contained the incontestable provision; that Myhrum went to appellee with the release already prepared and told her that her claim had been rejected because there had been a misrepresentation of facts when the application for the policy was made and that the company was not legally liable under the policy and did not owe her anything but it had, through sympathy, sent him with $100 to give her. The evidence also shows that appellant began to cry and then Myhrum raised the offer to $125, then to $175, and got so sympathetic that he finally said he would make it $200 by giving her $25 out of his own pocket, and that she could take that or a lawsuit, which might last ten years and in which she would be beaten; that he came back the next morning and asked her if she was ready to take the offer and sign the paper, when she told him that she had not seen any person yet, and he replied, you can either sign this paper or go ahead and sue the company: “If you want the money sign this paper, if you don’t you won’t get anything,” and thereupon appellee signed the release and received the $200. Myhrum denies making these statements, hut the preponderance of the evidence is with appellee, and appellant, although it alleged in its pleas and answer that the policy was obtained by fraud, virtually admits there was no basis for such representation by not offering any evidence tending to sustain it. The appellant took advantage of the situation of appellee to procure her signature by intimidation and fraud when there was not a shadow of a defense to the claim as appears from the evidence, since the policy had become incontestable, although appellee did not know that fact. The appellant procured the policy from the beneficiary the second day after the death of the insured and then sent an authorized agent, who represented to appellee that the policy was void because of misstatements in the application, when it knew the policy had become incontestable. The only defense made to the claim is that appellee had, by an instrument under seal, released for $200 a claim for $500 to which there was no defense. The appellant argues that the trial court did not find that the release was obtained by fraud. The master found that the release was obtained by fraud, the appellant excepted to that finding and the trial court overruled that exception. The company and its agent made such representations fraudulently, when they knew that the representations so made were not a defense to the policy, and the fact that there was no defense was not known to the beneficiary. The decree is sustained by the evidence and is affirmed.

Affirmed.


text:
    George Moench, Appellee, v. J. C. Graff et al., Appellants.
    1. Gaming, § 18

      —when delivery of note and mortgage to brokers as security for losses and margins is void. The delivery of a note and mortgage to brokers to secure them in the payment of margins and loss in option deals in grain and commodities on the Board of Trade is void as an attempted transfer as security for a gambling debt, within section 131 of the Criminal Code (J. & A. ¶ 3734), providing that all promises, notes, agreements, securities or conveyances made when the whole or any part of the consideration shall be for money won by gaming, wager or bet upon any chance or contingent event, shall be void.
    2. Gaming, § 18

      —when broker is a winner. A broker with whom another has deposited securities under a gambling contract is a winner.
    3. Gaming, § 18

      —what is effect of deposit of securities with broker under gambling contract. Brokers with whom securities are deposited under a gambling contract cannot enforce the collection of such securities, either in law or in equity.
    4. Mortgates, § 168

      —when assignee may not enforce note and mortgage. Under section 57 of the Negotiable Instruments Act (J. & A. ¶ 7696), providing that a holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses except the defect and defense specified in sections 131 and 136 of the Criminal Code (J. & A. ¶¶ 3734, 3739), the assignees of a note and mortgage delivered to a broker to secure a gambling debt may not enforce such securities, they being in no better position than the assignor.
    5. Gaming, § 36

      —when right of recovery of money paid on note and mortgage illegally deposited as security for gambling debt is barred. The six months’ provision in section 132 of the Criminal Code (J. & A. ¶ 3735), providing that any person who shall by any wager or bet, or any chance or contingent event, lose to any person any sum of money or valuable thing amounting to $10, shall be at liberty to sue for and recover the money lost, and, in case suit is brought within six months, treble the value of the money or other thing lost may be recovered, is a statute of limitation, and there can be no recovery of moneys collected on a note and mortgage deposited with brokers to secure a gambling debt except as to collections made within the six-month period.

      A.ppeal from the Circuit Court of Schuyler county; the Hon. Gut R. Williams, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed April 19, 1918.
    Glass & Bottenberg, for appellants.
    L. A. Jarmah and B. O. Willard, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

In May, 1916, George Moench filed a bill in equity against Emelia A. Larash and W. I. Larash, the firm of Graff & Company, composed of J. C. Graff and John Schultz, and the firm of Schultz, Baujan & Company, composed of Mathew John Schultz and others, to foreclose a mortgage.

The bill alleges that on August 5, 1909, Emelia A. Larash and W. I. Larash executed a note for $1,500 to complainant, due in five years with interest at six per cent and a mortgage to secure the same, and that the note is due and unpaid; that complainant on April 7, 1910, deposited the note and mortgage unassigned as a pledge and collateral security with Graff & Company to secure them in the payment of margins and loss in option deals in grain and commodities upon the Board of Trade in Chicago, and sets out at length that such deals were gambling transactions and illegal and void. It also alleges that John Schultz is a member of Schultz & Company and of Schultz, Baujan So Company, and that the makers of the note paid $180 interest thereon to Graff So Company and $180 interest and $500 on the principal to Schultz, Baujan So Company on July 13, 1914. t

The prayer of the bill is that the note and mortgage may be declared to be the property of complainant; that Schultz, Baujan & Company be decreed to deliver up the note and mortgage só that it may be foreclosed; that Graff & Company and Schultz, Baujan & Company be decreed to pay to complainant the sums collected by them and for a foreclosure of the mortgage.

Graff & Company and Schultz, Baujan & Company filed a plea of the Sixth-Month Statute of Limitations under section 132 of the Criminal Code (J. & A. ¶ 3735). These defendants also filed answers denying that the transactions were gambling transactions and stating the note and mortgage were transferred to Graff & Company as security for a loan. The makers of the note and mortgage answered, admitting the making of the note and mortgage and the making of the payments as alleged in the bill, and stating their willingness to pay the balance when it is determined to whom it belongs.

The cause was heard by the court on the pleadings and the evidence reported by the master, and a decree entered finding that there is due on the note and mortgage $2,212.50; that the note and mortgage had been deposited with Graff & Company to secure the payment of margins and losses in option deals on the Board of Trade which were gambling transactions and illegal and void, and that the title never passed to Graff & Company or Schultz, Baujan & Company; that Graff & Company had collected $180 interest prior to August 11,1911, and Schultz, Baujan & Company had collected $90 September 9,1912; $90 August 2, 1913; $590 July 13, 1914, and $60 August 15, 1915, and a decree was entered that Graff & Company repay to the Larashs $180, and that Schultz, Baujan & Company repay $920 to the Larashs, and in default thereof execution issue, and that Larashs pay $2,212.50 to .complainant, and in default of such payment the mortgaged premises be sold by the master. Graff & Company and Schultz, Baujan & Company appeal from that decree.

There was a suit at law in which Graff & Company sued Moench to recover $3,700 claimed to be a balance due them on the Board of Trade deals after giving Moench credit for the $1,500 Larash note. That suit was twice in this court. Graff v. Moench, 181 Ill. App. 127, and 201 Ill. App. 140. The parties stipulated that the master should report the bill of exceptions in the last appeal to this court as the evidence in this case, with the right to_ either party to offer any further evidence. The only other evidence offered was the note and mortgage and a stipulation concerning the transfer by Graff & Company to Schultz, Baujan & Company; the payment made by the makers of the note; that no demand had been made on appellants for the delivery of the note and mortgage, and that the property described in the mortgage is of the value of $4,000. .

The opinions in the former suit between the parties state the facts very fully and it is needless to restate them. The books of Graff & Company show that on the day the Larash note and mortgage were delivered to them, Graff & Company had very recently closed out a number of appellee’s deals at a considerable loss and that he had some deals still pending. On the day the Larash note and mortgage were delivered to Graff & Company, appellee also gave Graff & Company his personal note for $1,000. The entry on the books of Graff & Company is: “Apr. 7. By Larash note 4-12, $1500. Personal note $1000-2500.” Appellee had been dealing on the Board of Trade in 1909 through an Astoria party, and had been losing. Graff &. Company advised him to change from the Astoria party and do his business through them—a reliable party. Appellee after that made his deals through Graff & Company. There were no business transactions between Graff & Company and appellee that were not gambling transactions or connected therewith beyond the delivery of a little merchandise—feed amounting to about $25.

There is no claim made that the note and mortgage sought to be foreclosed are not valid. When they were delivered to Graff & Company by appellee they were transferred either in payment of or as security for advances on gambling transactions.

The issues presented are what, if any, rights have Graff & Company resulting from the deposit of the note and mortgage with them as security for advances, or in payment of losses due them, and who is entitled to collect the part unpaid, and are the makers liable still to appellee for the sums they have paid either to Graff & Company or to Schultz, Baujan & Company.

Under section 131 of the Criminal Code (J. & A. ¶ 3734), all promises, notes, agreements, securities or conveyances made, given, granted or entered into, “where the whole or any part of the consideration thereof shall be for any money, won by any gaming * * * wager or bet upon any * * # .chance * * * or contingent event * * * shall be void and of no effect.” Section"136 of the Criminal Code (J. & A. ¶ 3739) provides that: No assignment of any note, agreement, other security or mortgage shall in any way affect the defense of the party giving or executing the same or the remedies of any party interested therein.

Section 132 (J. & A ¶ 3735) of the same chapter provides that any person who shall by any wager .or bet, or any chance or contingent event, lose to any person any sum of money or other valuable thing amounting to $10, shall be at liberty to sue for and recover the money or other valuable thing so lost, paid or delivered, by action at law or in chancery, and in case the party who shall lose shall not within six months sue for and recover such money or other thing lost, then it shall be lawful for any other person to sue for and recover from the winner treble the value of the money or other valuable thing lost or delivered.

The delivery of the note and mortgage to Graff & Company gave them no legal right to the note and mortgage under the circumstances under which they were delivered. Delivery of the note and mortgage by appellee to Graff & Company was an attempt to transfer them as security for a gambling debt, and the transfer was void under said section 131. A broker with whom another has deposited securities under a gambling contract is a winner. Kruse v. Kennett, 181 Ill. 199; Pelouze v. Slaughter, 241 Ill. 215. Graff & Company had no right, either in law or in equity, to enforce the collection of the note and mortgage, and under section 57 of the Negotiable Instruments Act (J. & A. ¶ 7696), Schultz, Baujan & Company have no greater rights than Graff & Company had, without regard to the fact that Schultz was a member of both firms.

The delivery of the note and mortgage to Graff & Company being illegal and void, appellee is the legal holder of the note and mortgage and has the right to foreclose the same.

The moneys collected on the note by Graff & Company and Schultz, Baujan & Company were collected more than six- months before this suit was begun. The six months’ provision in section 132 of the Criminal Code has been held to be a statute of limitations. Kizer v. Walden, 198 Ill. 274; Holland v. Swain, 94 Ill. 154. The payments .that Larash made to Graff & Company and Schultz, Baujan & Company having been paid to them more than six months before this suit was brought, the payee, who delivered the note to Graff & Company, has no right to recover those payments either from Larash or the parties to whom payments were made. The note and mortgage are valid. The transfer of them, which was either as security for or payment of gambling losses, was invalid, and transferred no rights as against appellee, unless the same should be collected by the transferee more than six months before appellee brought suit to recover such payments.

The trial court erred in entering a decree that Graff & Company and Schultz, Ban jan & Company should refund any money collected by either of them more than six months before the beginning of this suit. The decree is reversed and the cause remanded with instructions to enter a decree against the makers for such sum as remained unpaid, with interest.

Reversed and remanded with directions.