text:
    Erneste Wulfe, Appellee, v. American Packing and Provision Company, Appellant.
    Gen. No. 5,873.
    (Hot to fee reported in full.)
    Appeal from the Circuit Court of Kankakee county; the Hon. Chables B. Campbell, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed with finding of facts.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by Erneste Wulfe against American Packing and Provision Company to recover for personal injuries sustained by plaintiff resulting from being attacked by a cow which servants of defendant were driving on a public highway. From a judgment in favor of plaintiff for eight hundred dollars, defendant appeals.
    H. K. & H. H. Wheeler, for appellant.
    Gower, Cooper, Hobbie & Parish, for appellee.
    Abstract of the Decision.
    1. Animals, § 14

      —when owner not liable for personal injuries caused by domestic animals. The owner of a domestic animal of a species not inclined to mischief is not liable for injury committed by it to the person of another in the absence of notice to the owner of mischievous tendencies of the animal.
    2. Animals, § 14

      —when owner of cow not liable for injury to pedestrian on highway. In an action to recover for personal injuries sustained by plaintiff by being attacked by a cow which servants of defendant were driving on a public highway, the facts showed that the cow while being driven with other cattle lay down and could not he made to go any farther and that plaintiff, a woman, was walking home in the highway and after passing the cow and defendant’s employes the cow got up and ran 'down the road and against her knocking her down. Plaintiff claimed that the servants of defendant were negligent in driving the cow so that it became overheated and vicious and that defendant should have employed competent persons to manage the cow. Held that the evidence was insufficient to show that defendant was negligent and that a verdict and judgment for plaintiff could not be sustained.

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

   Mr. Justice Carnes

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Julia E. Wood Administratrix, Appellee, v. James E. McEvoy and Julia Wood McEvoy, Appellants.
    Gen. No. 5,874.
    (liot to be reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Edgae Eldbedge, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action commenced in assumpsit by William Wood against his sister, Julia Wood McEvoy, and her husband, James E. McEvoy, to recover thirteen hundred and fifty dollars received by defendants as the purchase price for a twenty acre tract of land and an undivided half interest in another twenty acre tract conveyed by them to one Hansel, which lands plaintiff claimed to own. After a partial trial before a jury the case was transferred to the chancery side, bill and answer filed and proofs heard by the chancellor, resulting in a decree against the defendants for the whole amount with interest, less a counterclaim about which there was no dispute. From the decree, defendants appeal.
    Cornelius Reardon and Browne & Wiley, for appellants.
    Duncan, Doyle & O’Conor and C. F. Hanson, for appellee.

      Abstract of the Decision.
    Trusts, § 44

      —when equitable owner of land sold by holder of record title entitled to the purchase money. On bill filed to recover a certain sum received by defendants as purchase money for certain land sold by defendants, of which land complainant claimed he was the equitable owner, a decree in favor of complainant held sustained by the evidence, it appearing that the land in question was purchased by complainant with his money and the deed taken in the name of his father, to protect him against his own improvidence, and that the father had subsequently deeded the property to his daughter, one of the defendants, for a nominal consideration, and it also appearing that the fact of the conveyance was not known to two of the children, including complainant, and that the deed was not recorded until after the father’s death.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Hannah Berg, Administratrix, Appellee, v. Lake Erie & Western Railroad Company et al., Appellants.
    Gen. No. 5,881.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed with finding of facts.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by Hannah Berg, administratrix of the estate of John W. F. Berg, deceased, against Lake Erie & Western Railroad Company and Peoria & Pekin Union Railway Company to recover for the wrongful death of deceased while employed by the Peoria & Pekin Union Railway Company as a section man in its yards. His duty was to clean up and do various things about the yards. The deceased was killed by falling between the first and second coaches of a passenger train of the Lake Erie & Western Eailroad Company, a lessee of the other defendant Company. He stepped back from a track where he was working to make way for an engine of the Vandalia Eailroad Company that was approaching in one direction, and either while the engine was passing or just after it had passed he came into contact with the Lake Erie coaches going in the other direction. There was a space of about eight feet between the tracks and about four feet between trains if standing at the same time on these two tracks. From a judgment entered on a verdict for two thousand five hundred dollars against both defendants, defendants appeal.
    Stevens, Miller & Elliott, for appellants.
    Sheen & Galbraith, for appellee.
    Abstract of the Decision.
    Master and servant, § 704

      -—when recovery for death of a section man while working in railroad yards not sustained by the evidence. In an action against two railroad companies to recover ior the wrongful death of plaintiff’s intestate, a section man, employed by one of the defendant companies in its yards, it appeared that the deceased was killed by falling between the coaches of a passenger train of the other company after he had stepped off a track where he was working to let the engine of another company, not a party to the suit, pass, and that deceased, was killed while he was standing between the two passing trains. Held that a verdict and judgment against the defendants could not be sustained, there being no evidence to show what caused the deceased to fall between the coaches, and the evidence failing to show that defendants or either of them owed him any duty which was not performed, and the evidence failed to show ordinary care on the part of the deceased at the time of the injury.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    R. P. Wait, Appellant, v. W. H. Wenks, Appellee.
    Gen. No. 5,894.
    1. Evidence, § 261

      —when hank hooks admissible. In an action by a banker on a promissory note where defendant claimed that he handed the plaintiff a check of a third person drawn on plaintiff’s bank in his favor and indorsed by him in blank with directions to apply said check on the payment of the note, refusal of court to permit plaintiff to offer in evidence his bank books and to show by entries therein that the check had been charged to the account of the drawer of the check and credited to no account on the day the check was presented and that the bank books balanced at the close of the business on that day, held error.
    2. Witnesses, § 196

      —when hooks may he used to refresh recollection. Facts may be proved by producing witness who made entries in books, under certain conditions, using the entries so made to refresh their recollections, even though the witness has no independent recollection of the facts after seeing the entry.
    Appeal from the Circuit Court of Rock Island county; the Hon. Robebt W. Olmsted Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Searle & Marshall, for appellant.
    J. T. & S. R. Kenworthy, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Appellant, E. P. Wait, a hanker, September 10, 1910, sued appellee, W. H. Wenks, on a promissory note of $1,000 dated February 19,1907, due one day after date. Two payments had been made and indorsed on the note, and appellee claimed that on the morning of January 23, 1909, he handed appellant, at the door of the bank, the check of one John Eckhardt for $390.23, drawn on appellant’s bank in favor of appellee and by him indorsed in blank, with directions to apply said check on the payment of the note sued on. This appellant denied, and whether said check was turned in to the bank as part payment of the note and should have been applied and indorsed thereon January 23, 1909, is the only controverted fact in the case. Appellant had verdict and judgment for the amount of the note after allowing the payments indorsed and this check, and prosecutes this appeal.

Appellant resided at Reynolds, where he was engaged in the banking business, and also had this bank at Taylor Ridge. He came to Taylor Ridge two or three times a week and in his absence one of two clerks were in charge of this bank. He did not, in testifying, profess to have any distinct recollection of what occurred at his bank at Taylor Ridge on January 23,1909, and was not able to state from his independent recollection whether or not he was at this place on the morning of that day. It seems he was in the habit of making certain entries on his bank books when he was present and when he was absent they were made by one of his clerks. He offered to prove in whose handwriting entries were made in his books at the Taylor Ridge bank on that day, and to draw some inference from that as to what part of the day he was at Taylor Ridge. He offered to prove by certain entries in his bank book that said check had been presented at his bank on that day and had been charged to the account of John Eckhardt, the drawer. He offered in evidence entries in his bank books in relation to the note sued on, showing simply the payments that were indorsed on the note; and offered entries showing appellee’s account with the bank, and Eckhardt’s account with the bank, and entries showing all the transactions of the bank on that day, showing this check charged to Eckhardt’s account, and as we understand it credited to no account, and that the bank books balanced at the close of business on that day; and offered various explanations as to signs and figures shown on the books. The court sustained objections to each of these items of evidence, not on the ground of the want of technical proof of the manner of keeping the hooks but on the ground that the entries offered were not competent evidence of any fact at issue.

We are of the opinion that the court erred in excluding this line of evidence. To hold otherwise would be to put bankers at the mercy of customers that present checks or drafts at the bank window and receive the cash thereon. It is not to be presumed that bankers and their clerks, months or years afterwards, will have any independent recollection of such transactions. We assume in the case of checks presented by the payee, the bank books ordinarily show, as in this case, the amount of the check charged to the account of the drawer and the check is marked paid, as was this one, and returned to the maker, and there is nothing further to show the fact, if it is a fact, that the cash is paid to the party presenting the check. If the payee of a check can present it to the bank on which it is drawn and maintain a claim that he is entitled to credit by merely showing that he did present the check and that it is marked paid and in the hands of the drawer, and the bank is unable to get in evidence its books, it would ordinarily be powerless to resist such a demand. It is within the knowledge of most people at all familiar with business transactions that books of a bank are usually kept in such a way that they must balance at the end of a day’s business, and if a check is taken in by a bank and charged to the account of the drawer, and treated by the bookkeeper as paid in cash, when in fact it was not, and should have been credited to the account of the payee or indorsed on his note, that the bank books would not balance that night and attention would be at once directed to the error. If appellant’s bank books did balance upon the night of January 23, 1909, there are only two possible conclusions, either the check was paid in cash to the party presenting it or somebody abstracted from the bank’s cash that day the precise sum of money represented by the check.

We are of the opinion that the necessities of the situation require the admission of this class to testimony that the jury may determine whether the drawee is mistaken in his recollection that he was not paid the cash, or some employe of the bank did criminally appropriate that exact amount to his own use on that day.

There is some question made, and authorities cited to the effect, that account books are not evidence of money loaned and other money transactions. But we assume there is no ground for question and no need to cite authorities that in a suit between a banker and its depositor the books of the bank are competent evidence of the transactions they ordinarily in the regular course of bookkeeping and business show. If a customer deposits money and checks it out and has his checks marked paid and returned to him in the ordinary course of banking business, it surely would not occur to any lawyer that in a suit against the bank for the amount of the deposit, the books of the bank would not be competent evidence of the transaction, or that the bank’s defense must rest on the independent recollection of its employes.

Facts may be proved by producing witnesses who made entries in books, under certain conditions, using the entries so made to refresh their recollections, even though the witness has no independent recollection of the facts after seeing the entry. Diamond Glue Co. v. Wietzychowski, 227 Ill. 338; Richardson Fueling Co. v. Seymour, 235 Ill. 319. Bnt we are of the opinion that on principle and under the authority of Cooke v. People, 231 Ill. 9; Moshier v. Frost, 110 Ill. 206; Laughlin v. Brauer, 138 Ill. App. 524; Perry State Bank v. Elledge, 99 Ill. App. 307, the book accounts should have been received in evidence as such. The entries on the note register do not seem important, as they show precisely what the note with its indorsements shows, and there may be entries in some of the other accounts offered that are of no significance; but any entry in the accounts offered that throws any light on the fact in dispute should be received in evidence. There was an issue of tender in the case and some confusion as to the verdict and judgment because of that issue. We assume the question will not arise on another trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Jesse Whitley, Appellee, v. Wright Carriage Body Company, Appellant.
    Gen. No. 5,895.
    1. Master and servant, § 540

      —sufficiency of declaration. In an action by an employe for personal injuries, counts in the declaration held not defective in not sufficiently alleging that the defect was not open and obvious and that the plaintiff did not have equal means with the master of knowing of the defect.
    2. Master and servant, § 611

      —when admission of testimony as to guarding of machinery not prejudicial. In an action to recover for personal injuries sustained by an employe of defendant while operating a “sanding machine” alleged to have been caused by an unguarded disc, permitting plaintiff to testify that the unguarded space could have been protected by placing boards over it, held not prejudicial • error for the reason such testimony was equivalent to an expression of opinion that the machine was unsafe and that it could be made safe.
    3. Master and servant, § 784

      —sufficiency of instructions. In an action by a servant for personal injuries while operating an unguarded machine, instructions given for plaintiff held not open to the criticism that they take from the jury the questions whether the omission to maintain guards was negligence or that they leave out of consideration the element of open and obvious danger and do not impose on plaintiff the duty of exercising due care, or that they are vicious on the question of assumed risk.
    4. Appeai. and error, § 1466

      —when prejudicial error in admission of evidence must he pointed out. Admission in evidence of an inaccurate model of a machine cannot be held prejudicial error where it is not pointed out in what respect it was prejudicial.
    5. Appeal and error, § 1491

      —when exclusion of evidence not prejudicial error. In an action for personal injuries sustained by an employe while operating a machine, sustaining an objection to questions asked by defendant as to the customary and usual ways of doing work in its factory, field not prejudicial error where the record does not show what was expected to be proved by the witnesses and whether their answers would have been beneficial to defendant.
    6. Appeal and error, § 1507

      —when exclusion of questions on cross-examination not prejudicial. In a suit for personal injuries, sustaining an objection to questions asked of plaintiff on cross-examination whether he had received injuries subsequent to the one in question, held not prejudicial error where the court of review is not advised what answer was expected and there was no offered proof by the witness or any other witness that he had received such injuries.
    7. Damages, § 122

      —when recovery for injury to leg not excessive. A verdict of six thousand, five hundred dollars for. injury to leg held not excessive where the ligaments were torn from the ankle and plaintiff was confined to his home for four or five months, the injury being permanent so that he will never fully regain the use of his leg and will always be hindered in his business by the infirmity.
    Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    J. B. & J. L. Oakleaf and Searle & Marshall, for appellant.
    J. T. & S. R. Kenworthy, for appellee.

      See Dlinois 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 Carnes

delivered the opinion of the court.

Appellee, Jesse Whitley, a wood worker thirty-three years old, was injured while employed by appellant, Wright Carriage Body Company, in its factory at Mo-line, April 8,1910. He had been employed there about two months and had operated a bandsaw and worked with a boring machine prior to this injury, and on a few occasions had operated for a short time the ‘ sanding machine” on which he was injured. It was a combination machine and had both a revolving cylinder and a disc covered with sandpaper, against which wood was held to he finished. The disc was forty-two and three-fourths inches in diameter, and the cylinder was twenty-four inches long and seventeen and one-half inches in diameter. They both revolved on the same horizontal shaft turned by means of a belt running from a line shaft below the floor. The disc was inclosed by boxing, except at the lower portion near the floor for a space of six or eight inches. The face of the disc opposite the cylinder was covered with sandpaper fastened by an iron ring bolted to the disc with twenty-six bolts. About half of the bolts were fastened with wing nuts about an inch high, of the ordinary type made to be turned by the thumb and finger, and the other half with ordinary nuts screwed on. The boxing of the disc protected and concealed these wing nuts except in this exposed space of six or eight inches; they would not be noticed there when the disc was in motion and one of them might or not be visible when it was at rest, depending on where it stopped.

Appellee while working on the cylinder smoothing pieces of wood caught the bottom of his overalls on one of these wing nuts and was drawn into the machinery, where his leg was badly mangled. He says he did not know of these wing nuts, and it might be reasonably found from the evidence that he would not in the exercise of ordinary care know of them.

This suit was brought in September, 1911, to recover for that injury. The declaration, counting entirely on common-law negligence, was of three counts, the first charging negligence in permitting’ the machine to be operated without any guard or barrier about said thumb screws; the second, failure to warn the plaintiff of danger; the third, negligence in keeping the machine in a dark place where the thumb screws could not be seen by the operator. It is agreed by counsel that there is no evidence sustaining either the second or third count. There is no suggestion that either count states a cause of action under the Act of June 4, 1909, to “Provide for Health, Safety and Comfort. of Employees.”

A jury trial resulted in a verdict and judgment for six thousand, five hundred dollars, from which the defendant appeals, and assigns error in admitting and refusing evidence, giving and refusing instructions, and that the verdict and judgment are excessive and contrary to the law and the evidence.

Plaintiff was permitted to testify over defendant’s objection that guards could have been placed along the lower edge of the disc to cover up these thumb screws by nailing a couple of boards about three feet long across from one hood to the other, and that it would not interfere with the operation of the machine. This is urged as prejudicial error, and said to be opinion evidence equivalent to expressing the opinion of the witness that the machine was unsafe as it was and how it could be made safe, and several cases cited holding that such opinions are not competent. We do not think the gist of the testimony was that in the opinion of the witness the machine was unsafe in the one condition and could be made safe in the other. It is true that it is almost self-evident that such is the fact, but the substance of the testimony was that this space could be protected by placing boards over it; and appellant developed in its testimony, in offering photographs in evidence, that there were boards so placed immediately after appellee was injured. It seems so obvious that the disc could be so covered, that this testimony, even if it might be considered incompetent, should not be deemed prejudicial error. It is objected that the court admitted in evidence a model of the machine, offered by appellee, that was not accurate and was not claimed to be accurate, and that this must have prejudiced appellant’s case. But it is not pointed out in what respect it prejudiced the case. It may have been error to admit this model in evidence, but without any knowledge of the model or how it might have misled the jury we cannot hold it prejudicial error. There were photographs of the machine introduced by appellant, and we presume the jury from all the evidence were fairly informed of the shape, size and character of the machine.

The court sustained objections to questions asked by appellant as to the customary and usual ways of doing work in its factory, as to standing or sitting at the work and as to shutting off the machine when through working it, and the propriety of the court’s action in so doing is discussed by the respective counsel with citations of authority. But the record does not advise us what was expected to be proved by these witnesses; their answers if they had been permitted to answer, might or might not have been beneficial to appellant. We cannot hold refusal of proffered evidence prejudicial error without knowing what the evidence was. Johnson v. Peoria Ry. Co. 179 Ill. App. 304, and authorities there cited.

The court sustained objections to questions asked appellee on cross-examination, whether he had received injuries subsequent to the one in question, as not proper cross-examination. This may have been error, but we are not advised what answer appellant expected. There was no offered proof by this or any other witness that he had received such injuries, therefore within the principles above announced we cannot say there was prejudicial error. Complaint is made of plaintiff’s given instructions. In the first, the jury were told if plaintiff had made a case as laid in any count of his declaration he was entitled to recover; and it is said each count of the declaration was defective in not sufficiently alleging that the defect was not open and obvious, and that the plaintiff did not have equal means with the master of knowing of the defect. We do not think the counts are open to this objection. It was averred in the first count that the plaintiff did not know of the defect, and in the exercise of reasonable care could not have known it; in the second, that the operator of the machine could not see the thumbscrews and that plaintiff did not know of the danger and conld not know of it in the exercise of ordinary care; and the third count contains substantially the same averment. There are also averments that the defendant knew of the danger, and we assume the owner of machinery like this is presumed to know of such a feature of the machine as is here complained of. Plaintiff’s fourth and fifth instructions were as follows: “The Court instructs the jury that, if you believe from the evidence, that the plaintiff, Whitley, was employed by the defendant, and, as a part of his work he was to work with or upon said sanding machine, then it was the duty of said defendant to exercise reasonable care to maintain said machine and the surroundings thereof in reasonable safe condition, and in the maintaining suitable guards around any dangerous portion of said machine, and if the jury believe from the evidence, that the defendant did not exercise reasonable care in maintaining said sanding machine, but negligently and carelessly omitted to erect and maintain a guard or guards around the thumb screws on said machine, if the evidence so shows, and that the plaintiff did not know that the said machine was not reasonably safe, if the evidence shows it was not reasonably safe, and did not have equal means with the master of ascertaining that it was not reasonably safe, and would not have ascertained it unsafe, by the exercise of reasonable care, and that in consequence of said condition of said machine the plaintiff was injured while he was in the exercise of reasonable care on his part for his own safety, then you shall find the defendant guilty.”

“The Court instructs the jury that if you believe from the evidence that the defendant carelessly and negligently failed to guard the thumb screws or wing nuts on the sanding machine in question in manner and form as charged in the declaration or any count thereof, and if you further believe from the evidence that the plaintiff did not know of such unguarded condition of said machine, if it was unguarded, and had no knowledge of the danger of the projecting thumb screws thereon, if any, and did not have equal means with the defendant of ascertaining that the said thumb screws were dangerous and unguarded, if it was so, and would not have ascertained of such dangerous and unguarded condition by the exercise of such care as a reasonably prudent and careful person would exercise under the same or similar circumstances, then the plaintiff did not in law assume the risk of such projecting and unguarded thumb screws, if any there was.”

It is argued that these instructions take from the jury the questions whether the omission to maintain guards was negligence and impose an absolute duty on the defendant to do so; that the pivotal question is whether the defendant, under its duty to exercise reasonable care to provide reasonably safe machinery, was bound to provide guards. These instructions do not seem to us open to that criticism. The jury were told that the duty of defendant was to exercise reasonable care, etc., and that if it did not, but negligently and carelessly omitted, etc., this was not telling the jury that it was the duty of defendant to cover that part of the disc, which it clearly was under the statute, and may well have been so held without regard to the statute. It is said both of these instructions leave entirely out of consideration the element of open and obvious danger and do not impose on the plaintiff the duty of exercising due care in and about his work. We do not so read the instructions. It is argued that they are vicious on the question of assumed risk. If the duty neglected was one imposed by the statute there was no question of assumed risk. Streeter v. Western Wheeled Scraper Co., 254 Ill. 244; but independent of the statute we do not regard the instructions bad in that regard. He did not assume the risk if in the exercise of ordinary care he did not know and would not have known of the danger, and the jury were instructed that his right to recover depended upon proof of that fact.

There is little conflict in the testimony as to the extent of the injury. It appears from appellee’s testimony as a witness in his own behalf that he was injured on April 8, 1910, and did not go to work again until March, 1911, during which time it seems he was paid his wages; that the ligaments were torn from his ankle and he was confined to the house for four or five months; that the leg is stiff, the cord in the back of the leg shortened so that when standing on his bare feet he cannot get his heel to the floor; that he has to use a shoe with a higher heel on that foot; that he cannot do heavy work and that he suffers pain. The only physician called was one in the employ of appellant. He treated appellee and says the action of the ankle is not normal but has improved in the last few months and will continue to improve but will not get back to normal. In short it is a serious, permanent injury, and considering the pain and long sickness induced by the injury and the fact that appellee will never fully regain the use of his leg and will' always, to some extent, be hindered in his business by that infirmity, we do not feel warranted in reversing the case on the ground of excessive damages. It seems to us a clear ease of liability of appellant, and finding no reversible error in the record the judgment is therefore affirmed.

Affirmed.


text:
    Edna Tilton, Appellant, v. Burney E. Maley, Appellee.
    Gen. No. 5,897.
    1. Libel and slander, § 64

      —truth alone as a defense under constitutional and statutory provisions. Under our Constitution and statutes in a civil action for libel, the truth is a sufficient defense without it further appearing that the publication was made with good motives and for justifiable ends.
    2. Libel and slander, § 64

      —truth as a defense at common law. At common law the truth was a sufficient defense to a civil action for libel, but truth as a defense could not he shown in a criminal prosecution for libel.
    Appeal from the Circuit Court of Carroll county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Ralph E. Eaton and John D. Turnbaugh, for appellant.
    F. J. Stransky, 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 Carnes

delivered the opinion of the court.

This is a civil action of libel brought by appellant, Edna Tilton, against appellee, Burney E. Maley. The declaration charged the malicious publication of a false, scandalous, malicious and defamatory libel. Appellee pleaded the truth of the matter alleged to be libelous, the plea was held good on demurrer and judgment against the plaintiff followed, from which she appeals. The sole question is whether in a civil action for libel the truth is a sufficient defense or whether it must further appear that the publication was made with good motives and for justifiable ends.

We are referred to no case in this State, and know of none, directly answering this question. We assume the law must be fixed and uniform, that it cannot be necessary to plead good motives in a hard case and not necessary in other cases, therefore we omit a statement of the facts in this case.

At common law the truth was a sufficient defense to a civil action for libel. Cooley’s Blackstone (4th Ed.) vol. 2, book 3, star page 125; Cooley on Torts (2nd Ed.) p. 243; 25 Cyc. 413, and cases cited in the notes.

At common law the truth of a defamatory statement cannot be shown as a defense in a criminal prosecution for libel. People v. Fuller, 238 Ill. 116; People v. Strauch, 247 Ill. 220; 25 Cye. 573.

The case of People v. Croswell, 3 Johns. Cas. (N. Y.) 336, in which it was held that the truth of the defamatory matter charged was not a defense to an indictment for libel, attracted so much attention because of the prominence of the parties involved, that it was followed in New York and in most other States of the Union by constitutional and statutory provisions admitting the truth as a defense in an action for criminal libel in certain classes of cases and conditions, varying in the different jurisdictions. The State constitutional and statutory provisions in that regard are collected and shown as they existed at the time in a note in 21 L. R. A. 512, which note is supplemented by one in 31 L. R. A. (N. S.) 135.

Our Constitution of 1848 in the “Bill of Eights” recited: “The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty,” and provided (section 24): “In prosecutions for the publication of papers investigating the official conduct of officers, or of men acting in a public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence, and in all indictments for libel, the jury shall have the right of determining both the law and the fact, under the direction of the Court as in other cases.”

The Constitution of 1870, in the “Bill of Eights” (article 2, sec. 4, J. & A. p. 132.) provided: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.”

The Constitution does not provide penalties for the crime of libel, or redress for civil injuries resulting from publishing defamatory matter. In the absence of common or statutory law there could be no prosecution either civil or criminal grounded on this constitutional provision. The framers of the Constitution of 1848, because the common law did not permit the defense of truth in a criminal prosecution for libel, provided that under certain circumstances and conditions the truth should be a complete defense to an indictment; and the framers of the Constitution of 1870 provided that the truth should be a sufficient defense in either criminal or civil proceedings if published with good motives and justifiable ends. Neither of these constitutional provisions required the legislature to enact any law punishing a libel, or prevented the legislature from abolishing or changing any existing law affecting remedies for libel, provided only the legislature must not enact any law under which publishing the truth with good motives and for justifiable ends would subject one to civil or criminal prosecution. It would of course be absurd to say because of that constitutional provision there could be no defense to the publication of defamatory matter except that it was true and published in good faith and for justifiable ends. Under the Constitution that defense must be recognized, and other and different defenses are left to depend on the common law and such statutes as may be enacted.

Our Criminal Code (section 177, J. & A. ¶ 3808) reads: “A libel is a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or publish the natural defects of one who is alive, and thereby expose him to public hatred, contempt, ridicule or financial injury.” And section 179, J. & A. j[ 3810: “In all prosecutions for libel, the truth, when published with good motives, and for justifiable ends, shall be a sufficient defense.” It is to be observed that the legislature defined criminal libel as a “Malicious defamation” and not a “false and malicious defamation. ’ ’

In our act on ‘ Slander and Libel” (R. S. ch. 126, sec. 3, J & A. ¶ 10577) it is provided: “In actions for slander or libel, an unproved allegation of the truth of the matter charged shall not be deemed proof of malice, unless the jury, on the whole case, find that such defense was made with malicious intent. And it shall be competent for the defendant to establish the truth of the matter charged, by preponderance of testimony. ’ ’

While this act of the legislature may not be of much weight as an indication that it was intended the truth alone should be a sufficient defense in civil actions, it has generally been assumed by pleaders in civil actions that it is necessary to aver that the publication is false, and it is so averred in the declaration in this case. The plea traverses that averment, and to hold it bad would be in effect holding the averment surplusage.

It is, settled in this State that the truth is not a sufficient defense to an indictment for libel, and the present constitutional and statutory provisions are held to require the further showing that the publication was made with good motives. People v. Fuller, 141 Ill. App. 374, affirmed by the Supreme Court in 238 Ill. 116. Our courts recognizing that at common law the truth of the publication was no defense to an indictment for libel hold that the present constitutional and statutory provisions permit that defense if the truth is published with good motives and for justifiable ends and not otherwise; thus enlarging the liberty of the press in accordance with the apparent purpose of this section of the “Bill of Rights” which is entitled “Freedom of speech and publication.”

We think a fair construction of the decisions of our courts above cited is that our constitutional provision of 1870 leaves the common law as it found it, except that the defense of truth with good motives must be given effect, not precluding other defenses then permitted by the common law or that might thereafter be provided by statute. We do not see that a statute making the truth alone a sufficient defense, thereby further enlarging ‘ ‘ Freedom of speech and publication, ’ ’ would be in violation of that constitutional provision. The legislature, in defining “criminal libel” and providing for a défense, saw fit to enact the exact terms of the Constitution, therefore the truth alone is not now a defense to an indictment because it was not a defense at common law, and the legislature has not seen fit to make it a defense by statute. The Supreme Court of Nebraska in construing a constitutional provision identical with ours, in Razee v. State, 73 Neb. 732, held the truth a complete defense in a criminal prosecution for libel, and held an instruction that the truth was not a defense if it appeared from the evidence that the defendant acted without good motives and without justifiable ends, error, and based that holding on the act of their legislature defining criminal libel requiring it to be both false and malicious. (Which we have seen our legislature did not.) We will later refer to Nebraska decisions that are not in accord in civil cases with the conclusions we have reached; but the reasoning of that court in the case above cited is in accordance with our construction that the legislature is left free to provide such defenses as it sees fit providing it does not deny the defense provided in the Constitution; and the fact that the Nebraska legislature included the element of false statement in its definition of criminal libel and our legislature did not, makes the decision of our courts, that the truth alone is not a sufficient defense and the decision of the Nebraska courts that it is a sufficient defense, entirely consistent.

A reference to the cases cited in the two notes to L. R. A. above referred to, will show much apparent conflict in construction of similar provisions of constitutions and statutes in different jurisdictions, explained in part by different wording of the acts, and in part by different views of the courts. The case of Castle v. Houston, 19 Kan. 417, sustains our' construction and is much quoted in later cases. The State of Nebraska as we have seen, has a constitutional provision identical with ours of 1870. Their Constitution was adopted in 1875, and they had in their Constitution of 1866 a provision similar to ours before quoted in the Constitution of 1848. Their courts recognize the common law as to defenses in civil and criminal actions for libel as we have stated it, but in Pokrok Zapadu Pub. Co. v. Zizkovsky, 42 Neb. 68, and in Neilson v. Jensen, 56 Neb. 430, without much discussion it was held that the truth alone was not a sufficient defense in a civil action for libel. In Larson v. Cox, 68 Neb. 44, the correctness of this holding was doubted; but in Wertz v. Sprecher, 82 Neb. 834, the law was reviewed and the conclusion reached that the intention of the framers of their Constitution was that the truth alone should not be a sufficient defense in a civil action. The court discusses the case of Castle v. Houston, supra, and denies its application and authority. It makes no reference to its decision in Razee v. State, supra, and does not rely on any statutory provision, but apparently bases its holding alone on the provision of the Constitution construing it to be a repeal of so much of the common law as.made the truth alone a sufficient defense in a civil action.

Counsel for appellant urge that reputation is quite as .important and worthy of legal protection as is the liberty of the press, and urge the facts in this case as an example of outrage in publishing vices of. youth long abandoned and forgotten. There is some ground for this argument in expressions of court holding appellant’s theory of the law. But when we remember that this line of constitutional law began in an attempt to give greater liberty of speech, and its whole history down to the present time is to guarantie, as expressed in the title to our provision, “Freedom of speech and publication,” it seems to us judicial legislation to give effect to the provision as abridging freedom of publication by repealing the existing common law, under which truth alone was a sufficient defense. The framers of our Constitution intended that no one should ever become liable under any existing law or any future law, in either a civil or criminal action for publishing the truth with good motives and for justifiable ends; they used the words ‘ ‘ or civil ’ ’ giving the provision an effect beyond that of the Constitution of 1848. But it does not follow that they were aiming at the protection of reputation.

If the provision had been so intended it would have been differently worded and entitled. There is nothing in this provision to prevent the legislature from enacting a law under which the truth alone will not be a defense in civil action, as it has in effect provided in criminal actions; and nothing so far as we can see to prevent it from entirely abolishing all laws against libel. In short it is left, as far as this provision goes, to the legislature to act as it sees fit, provided. only it must not interfere with publishing the truth with good motives and for justifiable ends. Therefore the argument of necessity for more stringent laws to protect private reputation should be addressed to the legislature and not to the courts.

It follows that in our opinion the trial court did not err in overruling the demurrer to the plea, therefore the judgment is affirmed.

Affirmed.


text:
    C. L. Roberts, Appellant, v. Estate of Henry L. Roberts, Appellee.
    Gen. No. 5,903.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.

      Statement of the Case.
    Suit on a claim filed by C. L. Roberts against the estate of his father, Henry L. Roberts, deceased, for a balance due on an open account. From a judgment entered on a verdict in favor of the estate, claimant appeals.
    This case has been once before in the Appellate Court on an appeal by the estate from a judgment in favor of the claimant, which judgment was reversed and the case remanded in 175 Ill. App. 109.
    C. F. Preston, for appellant.
    Trusdell, Smith & Leech, for appellee; Adam C. Cliffe, of counsel.
    Abstract of the Decision.
    1. Executors and administrators, § 305

      —questions for jury. In a suit on a .claim filed against an estate for a balance due on an open account, held the question whether a certain written memorandum on which the claimant relies in support of his claim was of any probative force was for the jury.
    2. Witnesses, § 41

      —when husband of heir competent witness. On trial of a claim filed against the estate of claimant’s father, held that the husband of an heir who was defending the estate was a competent witness to testify to a conversation with the claimant occurring after the father’s death, for the reason that husband may testify in suits concerning the separate property of his wife.
    3. Appeal and error, § 1491

      —when rejection of evidence not material error. In an action on a claim filed against the estate of claimant’s father, rejection of the inventory of the estate offered in evidence by the claimant for the purpose of showing what stock and produce there was on the farm at the time of his father’s death, held not material error for the reason that it had little bearing on the real issue.

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

   Mr. Justice Carnes

delivered the opinion of the court.


author: Mr. Justice Dibell

text:
    Nicholas Doubet et al., Appellees, v. Joseph Doubet et al., Joseph Doubet and Cecily Dorenbus, Appellants.
    Gen. No. 5,787.
    1. Witnesses, § 66

      —test as to interest of witness. The real and not apparent interest of a witness is the test by which to determine whether he is testifying against his interest or not.
    2. Witnesses, § 98

      —when heirs are competent witnesses. On bill for partition between the heirs at law, where the question in dispute was as to how much should be charged some of the heirs for the use and occupation of the premises for the year following the death of the intestate, and such heirs claimed the occupation of the premises under verbal leases from the intestate, held that they were competent to testify for themselves and for each other to establish the oral leases.
    3. Frauds, statute oe, § 41

      —effect on verbal leases. A contract of leasing, void under the statute of frauds, may yet be carried out by the parties in interest and they are then bound thereby.
    4. Frauds, statute oe, § 107

      —what constitutes part performance to take verbal leases out of statute. Where sons, under verbal leases of lands from their father for a year commencing the next spring, plowed portions thereof in the fall under the direction of their father as to the kinds of crops to be planted, and sublet portions to other persons who plowed and sowed certain portions to wheat, and the tether died late in December, held that there was such a part performance as to take the verbal leases out of the statute of frauds, and that the lease was binding on the heirs.
    5. Landlord and tenant, § 324

      —when lease void under statute of frauds competent to ascertain rent to be paid. Although an original verbal lease is void under the statute of frauds, yet if the tenant occupies the premises under such lease, such verbal agreement is competent evidence for the purpose of ascertaining the rent to be paid.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.

      Sheen & Galbraith and Cameron & Cameron, for appellants.
    Glen Cameron, for cross-appellants.
    Covey, Campbell & Covey, for appellees Nicholas and Edward Doubet.
    Judson Starr, for appellee Peter Doubet.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Joseph Doubet, senior, died intestate in Peoria county on December 19, 1909, leaving surviving him four sons, Joseph, Peter, Nicholas and Edward, and five daughters, and the children of a deceased son and of a deceased daughter, as his heirs at law, and seized of numerous tracts of real estate and of a large amount of personal property. On January 7, 1910, Nicholas and his wife filed a bill for partition of said real estate against the other heirs at law. This is the partition suit referred to in our opinion in Falor v. Doubet, 164 Ill. App. 433. The land has been sold, and every question but one has been disposed of. Nicholas, Peter and Edward each occupied portions of this real estate for the year beginning March 1, 1910, and ending March 1, 1911, and the disputed question is how much shall be charged against each of them for the use and occupation of said respective tracts for that period. Some of this land is fine, tillable land, some is fair, some is hilly, some is brush or timber and pasture land and not tillable. The other heirs claim said occupants should pay the fair, cash rental value of the premises, which was variously estimated at from $2 to $2.50 per acre for the poorer pieces and from $5 to $7 for the better land per acre. The three occupants claim under oral contracts for that year, made with their father in the late summer or early fall of 1909.

These and several other matters were referred to the master to take and report the proofs and to report his conclusions and he did so and reported in favor of Nicholas, Peter and Edward, and the court overruled exceptions to that report, and entered a decree on this subject pursuant to said report. One son and one daughter appeal therefrom. They claim that the evidence by which these oral contracts were established was not competent and that the oral contracts alleged are void.

Nicholas established the oral contract between his father and himself by the testimony of Peter and Edward. Peter established his contract with his father by the testimony of Nicholas and Edward. Edward established his contract for that year by the testimony of Nicholas and Peter. The original arrangements between the father, Joseph Doubet, senior, and his sons, Nicholas, Edward and Henry, had been made about fourteen years before March 1,1911, the termination of the annual tenancies now in question. There had been some changes as to lands two years later, and some slight changes afterwards as to lands, and in 1905 Henry had died and Peter had stepped into his place. The original tenancy and some of the changes and the change in 1905 were proved before the master by at least two witnesses without any objection being made as to the competency of such witnesses to testify to those arrangements, and there is probably enough testimony in the record to which no objection was made to show that in August and September, 1909, Joseph Doubet, senior, renewed the same arrangements with Nicholas, Peter and Edward for the year 1910. But each of these parties called his two brothers to prove specifically what his arrangement with his father was in August and September, 1909, for the year 1910, and when all the oral testimony is read in the record rather than the abstract, it will be found that the details of said arrangements were fully proved if each of said brothers was competent to testify for the other two brothers. Apparently, each in so testifying was testifying against his own interest, for each of these brothers was entitled to one-eleventh of what should be charged against his brother, and appellants contend that the bargain each made with his father in the fall of 1909 was less than the fair, cash market value of the premises for the year 1910, and therefore each would gain if his two brothers were required to pay the fair, cash rental value of the premises for the year 1910. The real and not apparent interest of a witness is the test by which to determine whether he is testifying against his interest or not. Appellants contend that there must have been some arrangement by which they would testify for each other, and that each obtains a lower rental by reason of the testimony of his brothers, and therefore in fact each testified for his own interest, because he thereby procured the testimony of his brothers in his own behalf. There is force in this position, although, as we shall see later, it cannot readily be determined whether the net result of their bargain with their father was less than the cash rental value of the premises. But it is not so clear that each brother would not have been competent to testify on these subjects for himself, as well as for his brother. Pigg v. Carroll, 89 Ill. 205, was, like this, a bill for partition between heirs at law of one who died intestate. Advancements had been made by the intestate to his sons and daughters and the matters in dispute related to the value of such advancements. The Court said:

“The property involved belonged to the litigants, and it makes no difference how they acquire the title to it, whether by purchase or descent. Under our statute, parties are competent witnesses notwithstanding their interest in the property, except where they sue or defend in certain representative capacities. There is, however, no more reason for saying the parties in this case sue or defend as heirs than if the property had been acquired otherwise than by inheritance, and that clause of the statute which inhibits parties in interest or of record in suck cases from becoming witnesses on their own motion, has no application to the case in hand.”

This decision has been approved and applied in Mueller v. Rebhan, 94 Ill. 142; Laurence v. Laurence, 164 Ill. 367; Fleming v. Mills, 182 Ill. 464; In re Maher’s Estate, 210 Ill. 160; and Seaton v. Lee, 221 Ill. 282, and has been recognized and distinguished in a number of other decisions by our Supreme Court. Several of these were cases in partition. In Laurence v. Laurence, supra, the Court said:

“In the case of Pigg v. Carroll, supra, there was a controversy among heirs over the distribution of an estate where the value of certain advancements to several children of a deceased person were in dispute; but as said in the opinion in Comer v. Comer, 119 Ill. 170, in commenting on the case of Pigg v. Carroll, ‘the parties litigant held title derived from the same identical source, and the litigation concerned property it was conceded belonged to parties to the suit.’ The rule in Pigg v. Carroll was further explained in Mueller v. Rebhan, 94 Ill. 142, and in Ebert v. Gerding, 116 id. 216, where it was said that the statute ‘was intended to protect the estates of deceased persons from the assaults of strangers, and relates to proceedings wherein the decision sought by the party testifying would tend to reduce or impair the estate. ’ The rule to be deduced from these cases is, that where, among those who are conceded to be the heirs, there arises a controversy as to the distributon of the estate among them, they may testify, as such testimony does not tend to reduce or impair the estate among them.”

Here, Joseph Doubet, senior, died intestate. This is partition. The parties are heirs at law of said deceased and the husbands and wives of some of them. The heirship is conceded. No stranger is intervening to obtain any part of the estate. At the time of his death the deceased left in his safe in his bedroom over $75,000 in cash and good certificates of deposit, besides other moneys in banks, and his debts were very small. He left between seven hundred and eight hundred acres of farm land, which passed to these parties. The only question is whether the heirs at law take these lands subject only to the verbal leases previously running, which were to expire March 1, 1910, or whether they took them subject to verbal leases made in August and September, 1909, for the use of the property by three of the heirs at law for the year beginning March 1, 1910. It would seem that this controversy between the heirs at law as to the rents for the latter year comes within the meaning of the decision in Pigg v. Carroll, supra, as applied and explained in said later cases. If so, then the evidence was competent and the oral contracts of leasing are established.

But the conclusion of the court below may be sustained upon another ground. A contract of leasing, void under the statute of frauds, may yet be carried out by the parties in interest and they are then bound thereby. Joseph Doubet, senior, died December 19, 1909. The parties had then substantially completed the obligations of the verbal contract for the year ending March 1, 1910. This suit was begun in January, 1910, and proofs were taken in May, 1910, and the premises were sold at master’s sale under a decree in this suit in July, 1910. If the leases now in question were to be treated as void, then they would have been terminated by the sale and approval thereof in July, 1910, and the purchasers at the sale would take the entire property upon its confirmation and the delivery of master’s deeds. The decree of sale is not in the record before us, but it is plain from a stipulation made before the master during the hearing in May, 1910, that Nicholas, Peter and Edward were to retain possession of the premises as tenants until March 1, 1911, and the proof shows that they did retain their possession as tenants until the latter date. The law seems to be settled that although an original verbal lease is void under the statute of frauds, yét if the tenant occupies the premises under such lease, such verbal agreement is competent evidence for the purpose of ascertaining the rent to be paid. Marr v. Ray, 151 Ill. 340.

Joseph Donbet, senior, was quite old when he died. Nicholas had always lived at home with his father. The wife of Joseph Doubet, senior, died about fifteen years before the death of the latter. It would seem from the evidence that Nicholas married soon after his mother’s death and Nicholas and his wife thereafter conducted the home and the father lived with them. Some fourteen years or more before March 1, 1911, Joseph Doubet, senior, called his sons together and told them that he wished to quit farming himself and divide the farming of his lands among his sons, and it was arranged that Nicholas should take one part of the lands, including the home farm, and Henry should take another part and Edward a third part. Peter, by the direction of his father, measured off the lands which each of the three should take. Nicholas was to have one eighty free of any cash rent, and it is at least possible that this was because that was the home where the father still lived. It was arranged that Henry should have one eighty free of any cash rent. Why that arrangement as to Henry was made does not appear. Each son was to pay all the taxes on the land which he farmed, was to pay one dollar per acre rent, except as to said two tracts of eighty acres each, was to keep the fences repaired, was to build new fences as required, was to do all needed general repairs, was to fill up the ditches, was to keep the hedges and orchards trimmed and keep the land free of bur-docks and other weeds, was to seed down every meadow which he broke up, was to buy the seed himself and was to put in each field such crop as Joseph Doubet, senior, directed. As before stated, this original agreement was proved by testimony to which no objection was made by any one. It will be seen therefore that this was not an ordinary letting. The father retained supremacy over the land and did not give his sons the ordinary right of a tenant to raise such crops as he desired. Obviously, the father intended to allow such cropping as in his judgment would best preserve and( benefit the fertility of the soil. He required of his' sons much more in the way of repairs than an ordinary tenant makes. The sons were really farming under his direction and not as mere ordinary tenants. Two years later, some changes were made in the holdings, particular fields being taken from one son and placed in charge of another, and Peter seems to have obtained some land under this arrangement before 1905. In 1905, Henry died and the father placed in charge of Peter the lands which Henry had theretofore cultivated. There was no dispute as to the amount and dispositions of the lands each had under this verbal arrangement in the years 1909 and 1910. As before stated, there is sufficient testimony, not objected to, to warrant the conclusion that the same arrangement was renewed with each of these three sons, Nicholas, Peter and Edward, in the early fall of 1909 for the year beginning March 1,1910, and if the testimony objected to is competent, as we hold that it is, the details of those arrangements are shown. Each of these verbal contracts seems to have been made at a different time. They were partly proved by oral statements made by the father. These circumstances seem to distinguish this case from Linn v. Linn, 261 Ill. 606.

The remaining question is whether there is sufficient part performance to take these leases out of the statute of frauds. As to verbal contracts for the sale of land, it is well established that taking, possession and making lasting and valuable improvements on the faith of the verbal contract will, in equity, take it out of the statute of frauds. Black v. Hoopeston Gas & Electric Co., 250 Ill. 68; Morrison v. Herrick, 130 Ill. 631. These principles were applied to leases of real estate which, though in writing, had been made without any written authority from the owner, in Chicago & N. W. Ry. Co. v. Miller, 233 Ill. 508. In Taylor’s Landlord and Tenant (6th Ed.), sec. 32, it is said that such a parol lease will be enforced in equity if there has been a substantial part performance of it and that possession, delivered under such an agreement, is part performance, especially if the tenant has expended money in improving the property. This general subject is discussed in 1 Tiffany’s Landlord and Tenant, pp. 257-264. In O’Connor v. Enos, 56 Wash. 448, an oral lease had been made in May, 1904, by which one Oliver was to have the possession of and the right to farm certain lands for the farming season of 1905 for a certain rental, and Oliver afterwards sublet part of said land for said crop year of 1905 to one Elliott, and thereafter pursuant to said agreement, Oliver and Elliott, in the summer of 1904, entered upon some four hundred acres of said land and plowed the same and put the land in condition to be seeded to wheat, and when the lessors sought to repudiate this agreement said four hundred acres had been summer fallowed and were ready to be seeded to wheat in the spring of 1905. It was held that the lease, standing alone, was void by reason of the statute of frauds, but that the acts of the tenants in taking possession under their oral lease and plowing, cultivating and summer fallowing the land before the landlords repudiated the verbal lease, which was in December, 1904, constituted part performance and took the oral lease out of the statute, and that this became a valid, subsisting lease of the premises. In the case now before us, each of these three tenants, in reliance upon his oral lease, made in August or September, 1909, plowed a part of his land in preparation for 1910. Peter had sublet portions of his land to his two sons and they had plowed and sowed wheat upon their portions. Nicholas had sublet portions of his land to a son and to a neighbor and they had plowed part of the land. On at least two of these farms wheat had been sowed in October or November and in the lifetime of Joseph Doubet, senior. Moreover, inasmuch as Joseph Doubet, senior, had retained the authority to direct the particular kind of a crop, that should be planted, it is fair to assume that this plowing and this seeding was done under his direction or with his express or implied approval. These sons did not take possession in the strict sense of the word under the verbal lease for the ensuing year, because they were already in possession as tenants for the year 1909; yet it is obvious that the crop for 1909 ha,d been severed from these lands which were plowed, so that each tenant was practically done with the valuable use of these lands for the year 1909. Under all the circumstances of this case and in view of the fact that the tenants with the express or implied approval of Joseph Doubet, senior, had sublet various parts of these lands and thereby bound themselves in contractual relations with the subtenants, and in view of the control over the crops by Joseph Doubet, senior, we conclude that there was such part performance that Joseph Doubet, senior, could not afterwards have repudiated the oral leases, and that his heirs at law cannot do so. The determination of what acts shall constitute part performance should be governed to some extent by the character of the verbal contract. More should be required to constitute part performance of a verbal contract to sell and convey lands or to lease them for a long period of years than where the verbal contract is only for a lease for a single year. This decision does no injustice. If the contracts were treated as void and the rights of all the parties in this land as terminated at the sale of July, 1910, the land would have been uncropped for that year and therefore likely to bring a less price, or difficulties would have existed in adjusting the pay for what had been done. It is not likely that a tenant would agree to pay as much for the use of lands where the owner retained the powers over the cropping here reserved to himself by Joseph Doubet, senior. 'There is no proof that the rights which these tenants acquired by these verbal leases were worth more than what they agreed to pay and to do therefor. If all these considerations are incorrect, yet even then we fail to see why these sons did not hold over as tenants from year to year, as they had not been notified to quit, and such holding over would be on the same terms.

We approve the decree of the court below, which it is conceded is in exact accordance with the terms of the verbal leasings.

The decree is therefore affirmed.

Affirmed.


text:
    Edward McCormick, Appellee, v. Agnes Downs and M. E. Fleming, Appellants.
    Gen. No. 5,839.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of tlie Case.
    Action by Edward McCormick against Agnes Downs and M. E. Fleming to recover the.price of a colt alleged to have been sold by plaintiff to Agnes Downs. Suit was originally commenced before a justice of the peace where plaintiff had judgment for ninety-five dollars. On appeal to the Circuit Court plaintiff recovered a like judgment. From the judgment of the Circuit Court, defendants appeal.
    Brooks & Brooks, for appellants.
    Harry Edwards, for appellee.
    Abstract of the Decision.
    1. Sales, § 18

      —when evidence sufficient to sustain finding that seller assented to terms of sale. In an action for the price of a colt, where the purchaser claimed that she never bought the colt, and that plaintiff did not assent to her proposition to wait until corn shelling time for his pay, a verdict for plaintiff held sustained by the evidence.

      See Illinois Notes Digest, Vole. XI to XV and Cumulative Quarterly, san>e jtcpjc and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

2. Fbauds, statute of, § 16 —when oral promise to pay for goods sold to another is an original promise. Where a person sent word to another that a colt which the latter had traded for with a third person belonged to him and for him to sell it back to such third person and he would see that the colt was paid for, and a sale was made to such third party in reliance on the promise, held that the promise thus made was an original promise not within the statute of frauds, and that the maker of the promise was liable with the purchaser for the price of the colt.


text:
    W. Heller and Sons, Appellees, v. Illinois Traction Company et al., Appellants.
    Gen. No. 5,844.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county, the Hon. Leslie D. Putebbauoh, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by W. Heller & Sons against Illinois Traction Company et al. to recover a certain amount of overpayments made on the purchase of a carload of junk from the defendants. Plaintiffs had verdict and judgment for $305.82. To reverse the judgment, defendants appeal.
    James A. Knowlton, for appellants; George W. Burton, of counsel.
    Sheen & Galbraith, for appellees.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

Sales, § 352 —when purchaser may recover overpayments resulting from shortage in weights. In an action to recover overpayments made on a carload of junk purchased by plaintiffs of defendants at a certain price a pound, it appeared that an agent of defendants represented in a memorandum that there was a certain number of pounds of different kinds of metal consisting of, brass, copper, white borings, yellow borings, brass and iron, and copper and iron, and that one of the plaintiffs inquired what the white borings were and was told to go to investigate the same at the place they were loaded in the car, which he did, and it appeared that the plaintiffs after receiving the car found there was a shortage in weight on several items and very much less “brass” than the memorandum called for, and a very much greater weight of the item of “brass and iron.” The defense to the action was that defendants did not warrant the brass to be free from iron and that plaintiffs could not recover the shortage because one of them inspected the car. Held, that the inspection was to ascertain what was meant by “white borings,” that the plaintiffs had no opportunity to ascertain the weights of each kind of metals in the car and that a verdict for plaintiffs was proper.


text:
    Alma Shurlow, Appellee, v. Lester J. Hoadley, Appellant.
    Gen. No. 5,847.
    (Not to be reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Statement of the Case.
    Action by Alma Shurlow against Lester J. Hoadley to recover for personal injuries sustained by plaintiff while riding in a buggy with her husband. The injury was caused by defendant’s automobile striking the hind wheel of the buggy when defendant attempted to pass the buggy from behind. The wheel was ‘ ‘dished” and that corner of the buggy went down to the ground and plaintiff was injured. From a judgment entered on -a verdict for plaintiff for two thousand dollars, defendant appeals.
    McDougall & Chapman, for appellant.
    E. J. Kelly and L. W. Brewer, for appellee.
    Abstract of the Decision.
    1. Automobiles and garages, § 3

      —when instruction erroneous. In an action for injuries resulting from collision with an automobile in the nighttime, an instruction allowing plaintiff to recover because of a violation of the statute requiring motor vehicles to carry sufficient lights without submitting the questions whether failure to comply with statute caused or contributed to the injuries or whether defendant operated his automobile in a negligent manner, held erroneous.
    2. Evidence, § 423

      —when expert testimony whether injury was due to accident improper. In an action for personal injuries permitting expert witnesses to testify, over objection, in answer to hypothetical questions, that in their opinion a fractured rib and a dislocated kidney were due to the accident, held improper as such questions were to be determined by the jury.
    3. Trial, § 139

      —when remarhs of counsel concerning instructions to he offered hy opponent improper. Action of plaintiff’s counsel in his address to the jury seeking to cause the jury to look with suspicion upon the instructions to be given on behalf of defendant, held improper.
    4. Negligence, § 250

      —when admission of improper evidence and improper remarhs of counsel prejudicial. In an action by a wife for personal injuries, where counsel for plaintiff, over objection, succeeded in getting before the jury the poverty of plaintiff’s husband, and an appeal was made to the jury in behalf of “her little family of children,” though the latter remark was withdrawn, held that the effect of such proof and of such remark was prejudicial.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Medard Dupuis et al., Appellants v. William F. Snook et al., Appellees.
    Gen. No. 5,855.
    1. Mechanics’ liens, § 62

      —when original eontraot deprives subcontractor of lien. Where, by reason of the presence or absence of language in the original contract the original contractor is not entitled to a lien, the subcontractors can have no lien, and a provision in the original contract that the building shall be delivered free of liens deprives both original and subcontractors of liens.
    2. Mechanics’ liens, § 62

      —original contract construed, as to right to liens. A provision in an original contract that “the remainder twenty per cent, to be paid when the building is completed, and accepted and delivered free from all liens,” construed to mean that the contractor is to deliver the building free from liens and not to mean that liens on the premises were permitted and that the twenty per cent, was reserved to protect the owner against liens.
    3. Mechanics’ liens, § 213

      —when party obtaining lien may be required to pay part of costs. On bill by subcontractors for a mechanic’s lien, certain subcontractors obtaining a lien for less than the amount of their claim for lien, held properly adjudged to pay part of the costs.
    4. Mechanics’ liens, § 212

      —when determination of questions on appeal may be obviated. On appeal from a decree allowing certain subcontractors a lien, the subcontractors complained that the court erred in failing to provide for a sale of the premises to pay the lien, and in decreeing that their lien was subject to a mortgage, and the owner entered a motion to transfer the cause to the Supreme Court on the ground that a constitutional question was involved, held that if the owner would pay the lien with interest there would be no occasion to pass upon the question of priority between the lien and the mortgage and no occasion to determine any constitutional question, and the opinion of the Appellate Court was directed to be lodged with the clerk and the owner notified thereof.
    Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Fabrand, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Brearton & Walter, for appellants M. Dupuis & Sons.
    Ralph E. Eaton, for appellants Rhodes Brothers.

      Charles E. Stuart, for appellant Squires Hardware Company.
    F. J. Stransky, for appellee George Humphrey.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On April 1, 1912, William F. Snook, a builder, and George B. Humphrey, the owner of real estate in the city of Savanna in Carroll county, entered into an agreement by which Snook was to erect a dwelling on said real estate for Humphrey for $2,734. After the building was in the main erected and Humphrey had paid Snook $2,500 thereon, Snook abandoned the work and Humphrey completed it and expended in all at least $250 more than the contract price. A firm of material men, subcontractors under Snook, filed a petition for a mechanic’s lien on said property for a balance due to them from Snook for material furnished to said building. Other subcontractors under Snook filed answers and cross-petitions. The Savanna State Bank filed an intervening petition, in which it set up a mortgage by Humphrey to it, executed on April 13, 1912, upon said premises, securing a certain indebtedness. Humphrey answered the original petition and the cross-petitions and the intervening petition. There was a hearing. The court denied all liens, except that it gave Bhodes Brothers, subcontractors, a lien for a small sum for material they furnished after Snook abandoned the work, and this was made subject to the mortgage of the bank. The decree did not direct a sale of the premises to pay Bhodes Brothers, nor any method for the enforcement of their lien. It found the costs to be $42.30, and apportioned the same and required Bhodes Brothers to pay $7.40 and Humphrey $7.40. The subcontractors all appeal and insist that they were entitled to liens for the full amounts claimed by them. Rhodes Brothers also insist that it was error to assess costs against them and to fail to provide for a sale of the premises to pay their lien and to make their lien subject to the bank’s mortgage. Humphrey entered a motion to transfer this cause to the Supreme Court on the ground that constitutional questions were involved and that motion was taken with the case.

The liens were denied on the ground that under the contract between Snook and Humphrey no lien can be had. In Von Platen v. Winterbotham, 203 Ill. 198, it was held that if the original contract was not sufficient to create a mechanic’s lien under the statute no subcontractor could have a lien. In Brown Const. Co. v. Central Illinois Const. Co., 234 Ill. 397, where the contract provided that the completed work, when offered for acceptance, should be delivered free of all liens, it was held that this amounted to an agreement that there should be no lien and therefore the subcontractor had no lien. In Kelly v. Johnson, 251 Ill. 135, it was held that if the original contract provides that there shall be no lien, then a subcontractor can have none. In that case, the original contract was made on March 5, 1906. On March 15, 1906, the original contractor executed a waiver of all liens. It was held that those who had made subcontracts before the waiver were entitled to liens, but that those who made their subcontracts after the waiver had no liens. In Cameron Co. v. Geseke, 251 Ill. 402, the contract provided that the completed work, when offered to the owner for acceptance, should be delivered free of all liens. A decree denying a subcontractor a lien was affirmed. In Rittenhouse & Embree Co. v. Brown & Co., 254 Ill. 549, the original contract provided that the contractor should deliver the building to the owner free of liens. The trial court denied a lien to a subcontractor. The decree was affirmed. In Elgin, J. & E. Ry. Co. v. Northwestern Nat. Bank, 165 Ill. App. 35, the original contractor, by his contract, agreed to turn over the completed work free of all liens. This court held that no subcontractor could have a lien. It must therefore be considered the settled law of this State that if, by reason of the presence or absence of language in the original contract, the original contractor is not entitled to a lien, then the subcontractor can have no lien, and that a provision in the original contract that the building shall be delivered free of liens deprives both original and subcontractors of liens.

In the case at bar, the contract between Snook and Humphrey contained these provisions:

“The payments to be made as the work progresses in amounts equivalent to 80 per cent, of the work done and material in place. Payments to be made once every thirty days as work progresses. The remainder 20 per cent, to be paid when the building is completed, and accepted and delivered free from all liens or other incumbrances.”

It is contended by appellants that the fact that twenty per cent, was reserved and was to be paid when the building was delivered, free of all liens, should be construed to mean that liens upon the premises were permitted and that the twenty per cent, was reserved for the purpose of protecting the owner against such liens. We have before us the abstract in Cameron Co. v. Geseke, supra, and find therefrom that the contract there involved provided that payments were to be made monthly to the amount of eighty-five per cent, of the value of the labor and material put into the building during the preceding month, and the balance within ten days after completion and acceptance. It also contained these words:

“The completed work called for by this contract, when offered to the owner for acceptance, shall be delivered free from any and all liens, claims or encumbrances of any description whatsoever.”

It could, with just as much force, have been argued that that contract should be construed to mean that liens were authorized and fifteen per cent, was held back to protect the owner against such liens. We have before us the abstract in Elgin, J. & E. Ry. Co. v. Northwestern Nat. Bank, supra. The Elgin, J. & E. Ry. Co. was the owner and the Crouch Construction Co. the original contractor. The owner in that contract agreed to pay the construction company eighty-five per cent, on the first day of each month and reserved the remaining fifteen per cent, until the work was done; and the construction company agreed to complete the work free of all liens, and also to save the owner harmless from any and all liens. Under the arguments appellants make here, this language should have been construed to mean that liens were authorized and fifteen per cent, was reserved to protect the owner against the liens. In each of the above cases that construction was not adopted, but it was held that because it was agreed that the work was to be delivered free of liens, the subcontractors could have no liens. In our opinion, the language above quoted from the contract now before us plainly means that the contractor is to deliver the building to the owner free of all liens, and it is expressly held in Brown Const. Co. v. Central Illinois Const. Co., supra, that under such a provision a subcontractor can have no lien. We approve the action of the court below in denying the liens.

Rhodes Brothers argue that the court erred in directing them to pay $7.40 of the costs, because, as they say, they were not defeated. They claim a lien for $523.24, and only obtained a lien for $47.85. They were therefore defeated and were properly adjudged to pay part of the costs. Moreover, their petition asked that the costs be equitably apportioned among the parties.

Rhodes Brothers complain that there was no order of sale to make their lien of $47.85. Humphrey replies that this was omitted because it was known that he was ready to pay the amount so awarded for the material furnished after Snook abandoned the work; and, to avoid a reversal because of the lack of an order of sale and because the decree made the sum due Rhodes Brothers subject to the lien of the mortgage to the bank, he offers to pay into court here said sum found due Rhodes Brothers and interest thereon. His offer is defective in this: He treats the decree as having’ established a lien in favor of Rhodes Brothers for $43.50, and that is the sum he offers to pay with interest, instead of $47.85, the actual decree. This opinion will be lodged with the clerk and the solicitor for Humphrey notified thereof, and if he pays into this court within seven days $50.50, for the benefit of Rhodes Brothers, being the amount of said decree and interest, and files the receipt of the Circuit clerk, showing that he has paid to that officer the $7.40 costs ordered taxed against Humphrey, we shall then have no occasion to pass upon the question of priority as between Rhodes Brothers and the mortgage, and shall have no occasion to determine any constitutional question, because no such question has been decided against Humphrey, except that involved in the allowance of a small sum to Rhodes Brothers, which he concedes to be correct by offering to pay the same; and in that case, the motion to transfer the cause will be denied and the decree affirmed.

The solicitor for Humphrey having complied with the foregoing requirements, after notice by the clerk, the motion to transfer the cause is denied, and the decree is affirmed.

Affirmed.


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    Daniel Donovan, Appellee, v. John Ingoldsby, Appellant.
    Gen. No. 5,860.
    (Not to be reported in full.)
    Appeal from the County Court of Lee county; the Hon. Robert H. Scott, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.

      Statement of the Case.
    Action by Daniel Donovan against John Ingoldsby to recover certain indebtedness which it was alleged defendant promised to pay in consideration of a conveyance of lands from the wife of the original debtor. On trial without a jury, plaintiff recovered a judgment for $261.50. From the judgment, defendant appeals.
    Harry Edwards, for appellant; Donald A. Callahan, of counsel.
    Henry S. Dixon and George C. Dixon, for appellee.
    Abstract of the Decision.
    1. Contbacts, § 385

      —when recovery on agreement to pay indebtedness of another sustained by the evidence. In an action to recover on a certain indebtedness which it was alleged that defendant agreed to pay on taking a conveyance of property from the wife of plaintiff’s original debtor, the defense being that defendant did not promise to pay such indebtedness, held that a finding in favor of plaintiff was sustained by the evidence.
    2. Appeal and ebboe, § 1487

      —when admission of incompetent evidence not ground for reversal. Where an action at law is tried by a judge without "a jury, the admission of incompetent evidence will not be ground for reversal if there is sufficient competent evidence to sustain the finding.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Anna Weltz, Appellee, v. John R. Connell, Appellant.
    Gen. No. 5,863.
    1. Exchange of pbopebty, § 8

      —when refusal of requested instruction in action for misrepresentations reversible error. In an action for fraud and deceit in an exchange of lands and for breach of warranty, where plaintiff claimed that defendant made misrepresentations as to the value of his lands, held that the refusal of defendant’s requested instruction which told the jury that defendant’s misrepresentations must have been known by him to he false when made was reversible error, in view of the conflict in the evidence and of proof of defendant’s lack of acquaintance with the land in question.
    2. Evidence, § 348

      —when oral warranties merged in deed. Oral warranties concerning land exchanged, made before the delivery and acceptance of a written warranty deed therefor, are merged in the deed.
    Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Fareand, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed April 15, 1914.
    Brearton & Walter, for appellant.
    F. J. Stransky, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

In August, 1911, Anna Weltz was the owner of two lots, with a dwelling house thereon, in the city of Savanna in Carroll county, while John B. Connell owned one hundred and twenty acres of land in La Crosse county, Wisconsin. After negotiations during the month of August, 1911, between Connell and Henry Weltz, the husband of Anna Weltz, acting as her agent, a deal was made whereby the two properties were exchanged, Connell receiving the note of Mrs. Weltz for a certain sum of money in addition. The Wisconsin land which Anna Weltz received in the trade after-wards turned out to be not so valuable as she and her husband had supposed, and she brought this suit against Connell, filing a declaration of one original count and four additional counts. Four of these counts were for fraud and deceit and the last one was on warranties, by which it was alleged that defendant deceived and defrauded plaintiff. A plea of the general issue was filed and, upon a jury trial, plaintiff recovered a verdict and a judgment for $1,477.89, from which defendant appeals.

The evidence presented at the trial in the court below is conflicting with regard to the statements made by appellant as to the quality of the land in Wisconsin which he then owned and which he offered .to appellee in trade, but it seems that appellant had never seen his land until he went upon it in company with the husband of appellee, shortly before the deal was completed, and that he so told said husband. In view of that conflict in the evidence and of the proof of appellant’s lack of acquaintance with the land, we consider that the refusal of the court to give instruction No. 17, requested by appellant, constitutes such error as requires that this case be submitted to another jury. It is as follows:

“You are instructed that as a matter of law before the plaintiff can recover a verdict against the defendant in this case, she must prove by a preponderance of the evidence that misrepresentations relative to the lands in question were made by the defendant, that such misrepresentations were false and known by the defendant to be false when made, that she was deceived thereby and that she has been injured because of them.”

In actions of fraud and deceit it is not enough that the representations made by the defendant were false, —they must have been known by him to be false. To warrant an action for deceit the false representations must have been knowingly made with the intent to deceive. The fraud and the scienter constitute the grounds of the action. A knowledge of the falsity of the representations must rest with the party making them, and he must use means to deceive. Cantwell v. Harding, 249 Ill. 354, and cases there cited. No other instruction stated the law as to scienter. There are cases where one is liable to an action for fraud and deceit though he did not know the falsity of his statements, where he claimed to know and stated that which he knew nothing about but which was in fact false and did deceive. But no such case was alleged in this declaration. The original count and the first and third additional counts alleged that defendant knew the statements to be false, and the second additional count made no averment on that subject. But appellee contends that said instruction was properly refused because the fourth additional count, upon the breach of warranties, did not require proof that defendant knew the falsity of his statements. That count is somewhat anomalous, for it not only charges warranties and breaches thereof, but also that defendant thereby deceived and defrauded plaintiff. If this is meant as a count for fraud and deceit, then every count was for fraud and deceit, and said instruction should have been given. If this was a count upon warranties, then there could have been no recovery upon that count under the proofs. The supposed warranties set up in that count, if made, were all oral, and afterwards defendant delivered and plaintiff accepted his written warranty deed for the land. All prior conversations were merged in the deed, and it contains no such warranties as said count sets up. Appellee contends that as the statute of frauds was not pleaded, she could recover for the breach of these alleged oral warranties. But that contention does not answer the proposition that prior oral engagements are merged in the latter written contract, and that the writing cannot be modified by prior oral arrangements. This is a suit at law and is governed by the rules of law. This oral proof of statements or warranties could not be kept out by objection as it was competent under the counts for fraud and deceit, but it could not authorize a recovery under the last count. Instruction No. 17 was applicable to all the counts under which there could be a recovery, and should have been given.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.