author: Davis. J.

text:
    Albert G. Ruggles v. John Blank.
    1. Practice—Variance.—Where the .case, as made by appellee in his petition for a mechanic’s lien against appellant and A, was simply one of a sale and delivery by him of lumber, etc., to A to be used by the latter in erecting a house, and the case made by the proof was a purchase of the lumber by appellee of B, and a delivery of the same to A, on the promise to pay B for the same. Held, that the case made out by the proof is so variant from the one stated in the hill, that the petition should be dismissed.
    2. Pleading—Mechanic's lien.—A party seeking to enforce a lien under the statute relating to mechanics’ liens must, by his pleadings, bring himself strictly within the terms of the law, and show his right to the lien as against those made defendants.
    8. Shit by surety eoii mechanic’s lien.—Where lumber was furnished by B to A, who had the equitable title to the land, on which he built a house with said lumber, and appellee was the surety or guarantor to B that he would see the lumber paid for, and did afterward pay such hill. Held, that for the lumber so paid by him as surety or guarantor, the statute gives him no right to a mechanic’s lien on the house or lots.
    4. Owner ob land giving bond bob a deed to purchaser—Lien. —Two lots were sold by M. to A, and a deed left as an escrow, to be delivered to A upon the payment of the note given for the purchase money. A built a house on the land, but did not pay for the lumber. A being unable to pay the note, by arrangement the deed left as an escrow was surrendered, and appellant paid to M. the amount due, and by order of A received from M. a deed of the lots, and appellant gave to A an instrument in writin >■, agreeing to re-convey to A upon payment, etc. Appellee, who was A’s sure'y for the payment of the lumber, files a petition for a mechanic’s lien against appellant and A. Held, that appellant occupies the position M. occupied when he conveyed the lots to him, and he can not now be required to part with his title until he receives full payment of the purchase money he paid for the lots.
    Appeal from the Oircnit Court of Cass county; the Hon. C. Epler, Judge, presiding.
    Opinion filed November 21, 1884.
    Messrs. Morrison & Whitlock, for appellant;
    that the Mechanic’s Lien Law was passed for the benefit of builders and material men, and can not be extended by implication, cited Cook v. Heald, 21 Ill. 425; Brady v. Anderson, 24 Ill. 110; Rothgerber v. Dupuy, 64 Ill. 452; Arbuckle v. I. M. R. R. Co., 81 Ill. 429; Greenwood v. Town Man. Co., 2 Swan (Tenn.), 130.
    Blank did not furnish the lumber and can not be substituted to the legal rights of the Bussells so as to enforce the lien: C. & V. R. R. Co. v. Fackney, 78 Ill. 116; Fitzgerald v. First Pres. Church, 1 Mich. (N. P.) 243; Roberts v. Fowler, 4 Abbott Pr. (N. Y.) 263; Rollin v. Cross, 45 N. Y. 767; Caldwell v. Lawrence, 10 Wis. 331; Pearsons v. Tincker, 36 Maine (1 Heath.), 384; Tuttle v. Home, 14 Minn. 145; Jaege v. Bossienx, 15 Grattan, 83.
    Appellant occupies as favorable a position as Mather would have occupied had he not conveyed the land to appellant or Laird: Hickox v. Greenwood, 94 Ill. 266; Pratt v. Pratt, 96 Ill. 184; Phoenix M. L. Ins. Co. v. Batchen, 6 Bradwell, 621.
    Mr. George L. Warlow, for appellee;
    that a deed absolute in terms if intended to secure an indebtedness is a mortgage, cited Ewart v. Walling, 42 Ill. 453; Preschbaker v. Heirs, etc., 32 Ill. 475.
   Davis. J.

This was a petition filed by appellee against appellant and Ernest E. Laird to enforce a mechanic’s lien against two town lots, on which it is claimed a house was erected by Laird with materials furnished by appellee.

Blank, -in his petition, claims that on April 2, 1882, he sold and delivered to Ernest E. Laird a certain bill of lumber, hardware and tinware, to be used by him in erecting a house on certain described lots in Ashland, .for which materials Laird agreed to pay him in sixty days, or before June 21th follov ring. »

Laird withdrew a demurrer he had filed to the petition and making a default, suffered a decree 'pro ounfesso to he taken against him. Appellant answered the petition, denying in his answer that appellee sold and delivered to Laird, on a contract or otherwise, the lumber to build the house on the lots as alleged in the petition, but claimed that the lumber with which the house was built was sold to Laird by J. S. and G. S. Bussell, and Blank was security to the Bussells for the payment of the lumber they sold to Laird.

Evidence was heard before the master in chancery, and on the hearing before the court a decree was rendered in favor of appellee for the sale of the lots and a distribution of the proceeds. An appeal was taken by appellant to reverse the decree.

It was clearly proved bv the clerk of the Bussells who made the sale, that the lumber with which the house was built was sold by the firm to John Blank and charged to him, and he was looked to for the payment of the bill.

The firm refused to sell the lumber to Laird, but was willing to sell it to Blank, and it was agreed by appellee that if the firm would let it go out he would see it paid, and the lumber'was furnished-on those terms.

The testimony of appellee was substantially the same. He claimed to have paid the Bussells for the lumber. All he claimed to have furnished himself was some tin gutters and pipe which was worth about three dollars. The itemized bill of the lumber was made out by J. S. & G. S. Bussell against John Blank for lumber furnished E. Laird, April 25, 1882, and was dated February 5,1882, and amounted to $108.65.

It is a very familiar rule in chancery that the allegations and' proofs must correspond. A complainant must recover, if at all, on the case made by his bill. He is not permitted to state 'one case in the bill and make out a different one in proof. Although a good case may appear in the evidence, yet if it be variant from the one stated in the bill the bill will be dismissed. McKay v. Bissett et al., 5 Gilm. 499.

Tested by this rule the petition in this ease should have been dismissed by the court below. The case as made by appellee in his petition was purely and simply one of a sale and delivery by him of lumber, hardware and tinware to Ernest E. Laird, to be used by the latter in erecting a house on certain lots described therein. The case- made by the proof is a purchase of the lumber by John Blank of J. S. & G. S. Russell, and a delivery of the same to Ernest E. Laird on the promise to pay the Russells for the same.

The evidence utterly failed to prove the case as set forth in the petition and for that reason appellee was not entitled to the decree granted him by the court.

The case made by the proof was not only so variant from the one set out in the petition as to require the dismissal of the petition, but it is one which, if properly set out in the pleadings, would not entitle appellee to a mechanic’s lien.

A party seeking to enforce a lien under the statute relating to mechanics’ liens must, by his pleadings, bring himself strictly within the terms of the law and show his right to the "lien as against those made defendants. Crowl v. Nagle et al., 86 Ill. 437; Belanger et al. v. Hersey et al., 90 Ill. 70.

Sec. 1, Chap. 82, Revised Statutes, 1874, provides, “ That any person who shall by contract, express or implied, or partly express or partly implied, with the owner of any lot or piece of land, furnish labor or materials or services as an architect or superintendent in building, altering, repairing or ornamenting any house or other building or appurtenances thereto on such lot, or upon any street or alley and connected with such building or appurtenance, shall have a lien upon the whole of such tract of land or lot, and upon such house or building and appurtenances for the amount due to him for such labor, material or services.”

The evidence does not show that appellee furnished the lumber with which the house erected on the two lots was built. The lumber was furnished by J. S. & G. S. Russell to Ernest E. Laird, who had the equitable title to the Lots, and was by him used in the building of the house.

Appellee was the surety O'* guarantor to the Rnssells that lie would see the lumber paid for, and did afterward pay them the amount of their bill of lumber charged to him. For the money so paid by him as surety or guarantor, the statute gives him no right to a mechanic’s lien 'on the house or lots.

Even if he could be subrogated to the rights of the Rnssells, it would be under a bill trained differently to the petition in this case.

The court also erred in decreeing that the rights of Albert G. Ruggles are subject to the rights of John Blank, and in decreeing that out of the proceeds of the sale of the premises, after paying costs of the proceeding and expenses of sale, the commissioner appointed to sell should pay to John Blank the sum of §115.10 and interest due on same, and 'the surplus, if any, to Ernest E. Laird.

The evidence clearly established that the two town lots on which the house was built were owned in fee by the heirs of John Mathers and were sold to Ernest E. Laird, and a deed made and placed as an escrow in the hands of a banker, to be delivered to Laird on his paying the amount of a note given by him at the time of the sale for $110. Laird took possession of the lots and built the house, but was unable to pay the note given for the purchase money; and an arrangement was made with him by appellant under which the deed left as an escrow was surrendered, and appellant paid to the Mather heirs the sum of $112.35, and by order of Laird received a deed from them dated August 26, 1882, by which they conveyed to him in fee the two lots in question, and appellant gave to.Laird an instrument in writing by which he agreed that he would make Laird a warranty deed to the lots on the payment by Laird to appellant of $375 by February 1, 1884.

It was held in Hickox v. Greenwood, 94 Ill. 266, that w iere the owner of land gives a bond or contract for a deed to the purchaser, who procures a building to be erected thereon, the lien of the mechanic attaches upon the purchaser’s interest only, and the vendor can not be required to part with his title until he receives full payment of his purchase money. The vendor in such case does not occupy the position of a prior incumbrancer within the meaning of Sec. 17 of the Mechanic’s Lien Act. Where a mechanic’s lien is established .against a party holding a lot under a bond for a deed, who has not paid the purchase money, a sale of the property should be ordered, subject to the rights of the vendor, and out of the proceeds the mechanic should first be paid and then the amount due any subsequent incumbrancer, and the balance, if any, to the party against whom the lien exists.”

We think in the case before us, that appellant, by paying the amount of purchase money due the Mather heirs and obtaining the legal title to the two lots on which the house was built, occupies the position the heirs occupied when they conveyed the land to him and that he can not now be required to part with his title until he receives full payment of the purchase money he paid for the lots. And therefore, if the lien of appellee be at any time established, the lots can only be sold subject to the right of appellant, or if sold, that out of the proceeds of sale, appellant be first paid the sum of $112.35, with interest from the day lie paid such sum to the Mather heirs.

The decree of the circuit court must be reversed and the cause remanded.

Decree reversed.


source: Caselaw Access Project

author: Higbee, P. J.

license: Public Domain

text:
    Alexander R. Chesnut, Jr., et al. v. Thomas J. Chesnut et al.
    L Relinquishment op dower—Construction op instruments— Patent ambiguity.—Appellant, an heir, authorized appellees (one of whom was an heir and the other the husband of an heir for whom he was acting) to compromise and obtain the widow’s relinquishment of dower not yet assigned and homestead in the estate in which thejr were interested. Accordingly for $6,500 paid by appellees, two instruments were executed. The one was a full and perfect release of all the widow’s rights, including the right of do ¡ver, to the heirs and devisees who had such an interest in the property as to render the release valid; the other was a quitclaim deed from the widow to appellees releasing her rights of dower and homestead. Appellant refused to contribute his share, on the ground that the instruments were inoperative for the purpose of releasing the right of dower to the heirs and devisees. Held, that the two instruments were executed at the same time and relate to the same subject and must be construed together, and if there is a patent ambiguity which may reasonably be construed in two ways, one of which would effectuate the intentions of the parlies, and the other defeat them, the former construction should be adopted; that under the contract, in the absence of all fraud and unfair dealing, appellant is liable for his share.
    2. Dower—Legal and equitable interest.—Where a father in the lifetime of his first wife made a parol gift of a tract of land to his son upon the condition that he would improve the same and reside upon it, and the same being vacant the son moved upon it and resided there, making lasting and valuable improvements, and after his death his wife and child lived there and the father during the lifetime of his son recognized his right to it and promis ;d from time to time to deed the same to him, but died without having fulfilled his promise. Held, that the execution of the agreement on the part of the son by the-expenditure of money in improvements and the residence thereon was a sufficient consideration in equity to support the promise of the father to deed him the land and entitled him to a specific performance of the same, and that a second wife of the father would not be entitled to dower in such land.
    S. Contribution—Tenants in common—Dower.—The widow’s right to dower, not assigned, is an incumbrance endangering the estate, and one tenant in common can compel contribution from another for extinguishing it.
    4. Infant—Contribution.—The right to compel contribution, in equity, for protecting the common title, may be enforced as well against infants as adults, but the court will scrutinize the transaction closely to see that the interests of the infant are jealously guarded and properly protected.

      Appeal from the Circuit Court of Morgan county; the Hon. C. Epler, Judge, presiding.
    Opinion filed November 21, 1884.
    Messrs. Kirby & Brown and Mr. I. E. Brown, for appellants;
    that a court of equity would enforce specific performance of the agreement of testator to his son Nelson, cited Freeman v. Freeman, 39 N. Y. 34; Twiss v. George, 33 Mich. 253; Atkins v. Jackson, 8 Ind. 31; Davis v. Davis, 13 N. J. Eq. 246; Langston v. Bales, 84 Ill. 524; Bright v. Bright, 41 Ill. 97; Kurtz v. Hibner, 55 Ill. 514.
    Where the legal title is in the husband and the equitable title in another at the time of the marriage, no right of dower attaches as against such equitable title: Firestone v. Firestone, 2 Ohio, 415; Dean v. Mitchell, 4 J. J. Marsh, 451; 2 Perry on Trusts, 2d Ed. § 322; Washburn on Real, Property, 4th Ed. 204; Derush v. Brown, 8 Ham, 412; Green v. Green, 1 Ham, 249; Cooper v. Whitney, 3 Hill, 97.
    Until assignment, the widow’s dower is merely inchoate, and is not the subject of sale and transfer until it is allotted: Hoots v. Graham, 23 Ill. 81; Chicago Dock Co. v. Kinzie, 49 Ill. 290.
    It is no defense to an action of dower, that the widow has released her right to a stranger: 2 Scribner on Dower, 2d Ed. 307; Pixley v. Bennett, 11 Mass. 298; Eobinson v. Bates, 3 Met. 40; Littlefield v. Crocker, 30 Me. 192; Taylor v. Fowler, 18 Ohio, 557; Plain v. Harrison, 11 Ill. 384; Summers v. Babb, 13 Ill. 483; Gove v. Cather, 23 Ill. 634; Larter v. Walker, 2 Ohio, 337.
    Messrs. Morrison & Wiiitlook, for appellees;
    as to contribution among tenants in common, cited Chicago Dock Co. v. Kinzie, 49 Ill. 289; Titsworth v. Stout, 49 Ill. 78; Selb v. Montague, 102 Ill. 446; 106 Ill. 49.
   Higbee, P. J.

A bill for partition was. filed in the Morgan Circuit Court on the 25th day of January, 1882, by Mary A. Jones, John M. Jones, her husband, and Willard S. Cliesnnt, an infant, by his guardian and mother, Sarah A. Chesnnt, against Thomas J. Chesnnt, Matilda Donavan, Alexander B. Chesnut Jr., and Emily Chesnut, allegingthat one Alexander B. Chesnut Sr., died intestate as to the lands described, on the 23d day of June, 1880, the owner of certain lands in Morgan county known as the Bector farm, consisting of 252 acres. He left surviving him the said Emily Chesnnt, his widow, Mary A. Jones, Thomas J. Chesnut, Alexander B. Chesnut Jr., and Matilda Donavan, his children, and Willard S. Chesnnt, a grandson, his only heirs at law, to whom the said lands descended as tenants in common, subject to the said widow’s right of dower.

Appellants, Alexander B. Chesnut Jr., and Willard S. Chestm", the only parties who complain of the decree in this cause, each answered admitting the substantial allegations of the hill, and filed separate cross-bills, upon which issues were formed and tried, under which the questions presented for our decision arise.

From the cross-hills and the proofs in the record it appears that Alexander B. Chesnut. Sr., died testate, in Morgan county, where his will was admitted to probate, and Thomas J. appointed sole executor of the same; that by his will said testator devised to each of his children and his said grandchild, certain lands in Logan and Morgan counties; that he acquired title to the Bector farm after the making of his said will and the same descended to his heirs as intestate property; that the said Emily, his widow, was a second wife, to whom he was married in 1868, after the death of his first; that they lived together unhappily, and finally separated several years before his death, at which time a divorce suit was pending between them; that soon after his death the said Emily instituted a suit in the Morgan Circuit Court against his heirs and devisees for the assignment of dower in all the real estate of which her husband died seized, and fertile assignment of a homestead in the Bector farm, which suit was contested so far as it related to the homestead. She had also obtained in the county court a special award of something over $700, which had been sustained by the circuit court on appeal, from which the executor had further appealed, and the same was pending when a settlement was made as hereinafter stated. Soon after the death of the deceased, negotiations were entered into with the widow by Donavan, acting for his wife, Thomas J. and Alexander R. Jr., the said Wiliard S. being a minor, looking to a compromise and final settlement of all pending suits, and a relinquishment of all the rights of the widow to the heirs and devisees. Pending these negotiations, Alexander R. moved to Minneapolis, hut authorized Thomas J. and Donavan to make the compromise and obtain the widow’s relinquishment whenever the same could he done, and agreed to pay his share of the purchase money. In pursuance of this arrangement, Thomas J. and Donavan, in January, 1882, agreed with the widow upon the terms of a settlement by which all pending suits were to be dismissed and she was to relinquish all interest in the real and personal estate of her late husband, including homestead, dower and special award, for which they paid her in cash the sum of $6,500; and upon the receipt of the same she executed and delivered to them the two instruments in writing referred to in the bill as exhibits “ A ’’and16 B.” The purchase was made and the money paid for the benefit of all the heirs and devisees, and so the court found on the final hearing, and by its decree declared the equitable amount to be paid by each, and then directed the executor to apply as a credit upon the whole amount due, the sum of $2,880.25 then in his hands, which had been received by him for rent of the intestate lands and decreed the balance due from each to be a lien on his or her interest in the lands held as tenants in common.

The first ground upon which a reversal is urged by appellants that we will notice is that the instruments in writing o executed by the widow at the time of the compromise were inoperative for the purpose óf"releasing her right of dower in the lands; and that notwithstanding their execution the right of dower still remained in her, and appellants were subsequently compelled to and did purchase a release of said right of dower from her.

The argument in support of this position is that the effect of the two instruments executed by the widow was not to release her right of dower to the heirs and devisees, but it was an attempt to convey the same to Thomas J. and Donavan, whose only interest in the lands was an ownership of an undivided one fifth in the former; and that a right to dower not assigned could not be conveyed to one not the owner, and therefore the only effect the instruments had was to release the widow’s right of dower in the interest owned by Thomas J.

It is undoubtedly the law in this State that a right of dower not assigned is a mere inchoate right in the nature of a chose in action which can not be conveyed by the dowress to one not interested in the land. It can only be released to the legal or equitable owner or to some one having an interest in protecting the same. But we can not agree with counsel for appellants in the construction they give the instruments in question. Exhibit “ A ” is an agreement under seal in which Emily Chesnut, party of the first part, in consideration of $6,500 to her paid by Thomas J. Chesnut and Jefferson Donavan, parties of the second part, and of certain covenants to be by them kept and performed, “releases, sells, conveys and quitclaims to the heirs at law and devisees of Alexander R. Chesnut, senior, deceased, late of Morgan county, Illinois, all her right, title and claim of, in and to any and all right of dower and homestead in and out of the real estate of which he was entitled at the time of his death, and also all right or claim to her special dower or widow’s award in said estate, and also all right in and to any distributive share of the personal estate of said decedent.” It also provides that she shall dismiss two suits pending in the Morgan Circuit Court, and the parties of the second part another, and pay the costs in all three of them. Exhibit “B” is a quitclaim deed from the widow to Thomas J. and Donavan, in which in consideration of $6,500 paid by them she “remises, releases, sells, convexas and quitclaims to them and their heirs and assigns forever all her right, title and interest to the real estate in the counties of Logan, Mason and Morgan of which the late Alexander R. Chesnut, senior, died seized, and especially all rights of dower and homestead therein.”

The oral evidence leaves no room to doubt that the compromise was made for the benefit of all the heirs, and this is equally clear from the very nature of the transaction. Dona-van was acting for his wife. She and Thomas J. owned an undivided fifth each; the price to be paid for the widow’s whole interest in the estate was §6,500; why should they pay the whole price, instead of two fifths, if they did not suppose they were acting for all? When read in the light of the circumstances surrounding the transaction, these instruments, however conflicting in terms, are not difficult of construction. The one was a full and perfect release of all the widow’s rights, including the right of dower, to the heirs and devisees who had such an interest in the property as to render the release valid. The other was an attempt to release the dower to parties who had no interest in the land to which it could attach, except as to the undivided fifth owned by Thomas J.; and if, as is contendel by appellants’ attorneys, this instrument fails to release the widow’s dower as to the remaining four fifths, then it is not in conflict with the other, for so far as it is valid, they are the same in effect as to the dower right. But independent of this both instruments were executed at the same time and relate to the same subject and must be construed together, and if there is a patent ambiguity which may reasonably be construed in. two ways, one of which would effectuate the intentions of the parties, and the other defeat them, the former construction should be adopted.

It is next contended by appellant Alexander Chesnut Jr., that even if the release was valid and extinguished the widow's rights in his lands, that he did not authorize the purchase of the same and is not liable to contribution therefor. The evidence shows that Mrs. Jones, Mrs. Donavan, Thomas J., Willard 8., and said appellant, were tenants in common of the intestate lands in which the widow of their deceased father was entitled to dower and homestead, and each of them, except Willard 8., owned lands in severalty, devised to them by the will of their father, in which the widow was also entitled to dower.

This appellant, Thomas J., and Donavan, who was acting for his wile, agreed that it was for the best interests of all the heirs and devisees to compromise the suits pending and procure from the widow a release of all her rights in all the lands and personal estate of their father, if it could be done on terms deemed reasonable. With a view to such a settlement, negotiations were opened by them with the widow, and were pending when Alexander E. moved to Minneapolis; but he authorized the said Thomas J. and Donavan to continue their efforts to settle, and promised, in case they should succeed, that he would contribute his equitable share of the cost. When they had effected the compromise with the widow, and the instruments had been executed by her, Thomas J. immediately notified him of the fact and of the terms of settlement and the amount he was expected to pay. This letter he did not answer, but when afterward he returned to Morgan county he did not repudiate their authority to make the settlement, but objected only to the amount they required him to contribute as his part. These facts were fully established by the evidence of Thomas J. and Donavan, both of whom were competent witnesses, and their testimony was strongly corroborated by other facts and circumstances established in the case, while the only evidence to the contrary is that of appellant, which stands alone and unsupported. It is not necessary to determine to what extent, if at all, appellant would have been liable to contribution independent of the contract; for under it, in the absence of all fraud or unfair dealing, his liability can not be questioned.

There is a variance between the allegations of the bill and the proofs,,as to the effect of the instruments in writing above considered; and the bill is further defective in not sufficiently setting out the agreement between Alexander, Thomas J. and Donavan in reference to the purchase, but as these defects can be obviated by amendment, and the case has been considered at length in the briefs of both parties on its merits, we have thought it best to decide the questions presented.

It is contended by appellant, Willard S., that the court erred in charging him with the val tie of the dower in the N. W. quarter of Sec. 30, T. 21, N., R. 4, W., in Logan county, for the alleged reason that Mrs. Chesnut was not entitled to dower therein. This tract was devised to Willard S. by the will of his grandfather, the said Alexander B. Chesnut Sr.; but the proof shows that in 1803, nearly eighteen years before the death of the testator, and in the lifetime of his first wife, he made a parol gift of this tract of land to his son IN elson, the father of Willard S., upon the condition that he would improve the same and reside npon it. That in pursuance of this agreement the said Kelson entered upon the land, the same then being vacant, and made lasting and valuaable improvements thereon; and in the same year, 1863, moved upon it and resided thereon, cultivating it as a farm, until 1874, when he died; and that since his death his widow and child have contimred to reside thereon to the present time. After the gift, the said testator always, during the life of Kelson, recognized his right to the land, never claimed or received rent therefor and promised from time to time to deed the same to him, but died without having fulfilled his promise. The said Kelson in his lifetime, and his widow and child since his death, have claimed and occupied the said tract of land adversely to said testator at all times since the said Kelson moved npon it, paid all taxes thereon and enjoyed the entire rents and profits thereof.

The execution of the agreement on the part of the son by the expenditure of money in lasting and valuable improvements, and the residence thereon, was a sufficient consideration in equity to support the promise of the father to deed him the land, and entitled him to a specific performance of the same.

In the case of Stookey v. Stookey et al., 89 Ill. 40, the court said: <e We perceive in this regard no difference in principle between the legal effect of an agreement to convey to a. stranger, for a valuable consideration, and an agreement to convey to a child, for a good consideration.”

Long before the testator’s marriage to his widow, his son had, by a full compliance with the terms of the agreement on his part, become the equitable owner of the premises, and was entitled to a deed therefor from his father, who held the naked legal title in trust for him; and on his death this right descended to appellant as his heir-at-law, and the subsequent marriage and death of the testator did not invest his widow with a right of dower in the -premises as against appellant, and the court erred in charging him with contribution therefor.

It is next contended by this appellant that he did not consent, and being a minor could not consent, to the purchase of the widow’s right of homestead and dower, and that they were not such incumbrances as one tenant in common can compel contribution from another for extinguishing.

In equity, when tenants in common, or joint owners,'hold pi'operty incumbered or burdened in such a way as to endanger the title by which they hold it, either of the owners may take up the outstanding title, remove the incumbrance or make advances to preserve the property from destruction, and compel the other owners to contribute their share of the cost, in proportion to their interests in the same. Wilton v. Tazwell, 86 Ill. 29. In that case as in this it was insisted that the widow’s right to dower, not assigned, was not an incumbrance endangering the estate, and that one tenant in common could not compel contribution from another for extinguishing it. But the court held otherwise, and that ruling must be followed here.

The right to compel contribution in equity for protecting the common title may be enforced as well against infants as adults; but the court will scrutinize the transaction closely to see that the interests of the infant are jealously guarded and properly protected. Here the purchase seems to have been fairly made; it was beneficial to the infant’s estate, the price paid was reasonable, and he received and fully enjoys the benefits of the release of the widow’s rights, and should contribute his proportionate share of the purchase money.

The decree is reversed and the cause remanded.

Reversed and remanded.


text:
    Henry H. Swaim v. John F. Humphreys et al.
    Yendor and vendee—Fraudulent representations.—Tn order that a vendor may avoid a contract of sale on account of false and fraudulent representations as to commercial standing made by the vendee, it is necessary to prove not only that the representations made by the vendee were false, but that they were coupled with a dishonest intent. As the evidence in this case fails to show that the vendees induced the vendors to enter into the contract by fraud, the title to the goods passed by the sale, and the sheriff who had levied upon such goods, under a judgment and execution in favor of one of the vendees’ creditors, was entitled to the possession of the same.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed November 21, 1884.
    Mr. Wm. E. Hughes, for appellant;
    that the statements made by Arnspiger to appellees, at the time of the purchase, were not shown to be false and fraudulent, and therefore appellees have no right to disaffirm that sale, cited Nichols v. Penner, 18 N. Y. 295; Conyers v. Ennis, 2 Mason, 237; Powers v. Bradley, 9 G. & J. (Md.) 220; Greaver v. Mullen, 15 Pa. 206; Patton v. Campbell, 70 Ill. 72; Henshaw v. Bryant, 4 Scam. 97.
    Mr. A. E. DeMange, and Mr. B. D. Lucas, for appellees;
    that no title passes to goods purchased by false representations, and the vendor is entitled to recover them back from all persons except innocent purchasers for value, cited Am. M. U. Ex. Co. v. Willsie, 79 Ill. 92; Benjamin on Sales, §433.
   Higbee, P. J.

This was a suit in replevin brought by appellees against appellant, who was sheriff of McLean county, to recover the possession of a stock of groceries. The sheriff pleaded that the goods were the property of Arnspiger & Lovell, and justified- his possession under a judgment and execution against them in favor of one ¡N". ¡N. Winslow, to which appellees replied, property in themselves. This issue was submitted to a jury and found against appellant; a motion for a new trial overruled and judgment rendered upon the verdict, from which the defendant below appeals to this court and assigns several errors, the only one of which we deem it necessary to notice is that the court erred in overruling appellant’s motion for a new trial, because the verdict was not supported by the evidence.

Under the issues the burden of proof was upon appellees to show that they were the owners of the property at the time they commenced their suit. It is admitted that appellees, who were wholesale grocers in the city of Bloomington, were the owners of the goods in controversy on ¡November 1, 1883, when they sold and delivered them to Arnspiger & Lovell, retail grocers in the same city, who put them in their stock and offered them for sale, retaining the possession of those not sold until December 20th of the same year, when they were taken by the sheriff on the execution. The sale was on credit, and Arnspiger & Lovell gave their notes for $540, the price of the goods, and a mortgage on their entire stock to secure the same. The mortgage turned out to be invalid and of no binding effect, and after the goods were taken in execution appellees declared the sale void, on account of false and fraudulent representations alleged to have been made at the time by Arnspiger & Lovell, touching their commercial standing and ability to pay for the goods bought bv them, and this brings us to the consideration of the main question presented by the record; were the goods obtained from appellees by Arnspiger & Lovell by fraud? If so, the right to reclaim them, even as against a creditor whose debt existed before the fraudulent sale, can not be questioned. A. M. U. Ex. Co. v, Willsie, 79 Ill. 92. To have this effect, however, it is not enough that the representation made by the purchaser was false, but it must have been coupled with a dishonest intent. Therefore, however false may have been the representation of appellant to appellees, pending the negotiations, it is no ground for avoiding the contract, as having been obtained by fraud, if the party making the representation, honestly and on reasonable grounds, believed it to be true. Benjamin on Sales, Sec. 638. The only proof in the record showing what representations were made at the time of the sale by appellees is to be found in the evidence of Mr. Humphreys, who says he had had business transactions with Arnspiger & Lovell for two or three years; that his firm sold them, since the spring of 1883, from one to two hundred dollars’worth of goods each month, and they paid for them monthly; that about the 1st of November they wanted four or five hundred dollars’ worth, and he asked Arnspiger, who applied for them, how they stood, to which he answered that their stock was all or nearly all paid for, except what they owed us; that there were some few bills outside, but they did not amount to much; that their principal indebtedness was to our firm; that he relied upon these statements and was thereby induced to sell the goods; that he did not inquire about the individual indebtedness of the members of the firm. The indebtedness of the firm to appellees was then two hundred dollars. The evidence wholly fails to show that these representations were false and fraudulent when made. It is not clear from the evidence before us that either Arnspiger, or the firm of Arnspiger & Lovell, was indebted to any one except appellees at the time of the sale. It does appear that Lovell was indebted to Wins-low in the sum of $500, and had been for several years, but there is no pretense that either Arnspiger or the firm was liable for this debt, or that Arnspiger even knew of its existence when he made the purchase.

The evidence also shows that Lovell, in the spring of 1883, had borrowed from “ThePeople’s Bank ” $200, giving a note, with Winslow as security therefor, and that this money was used in the business of the firm, but it does not appear that the money was loaned by the bank on the credit of either Arnspiger or the firm. These are the only debts relied upon to show that the representations made were false and fraudulent. Admit that the $200 was the debt of the firm, it was not so clearly in conflict with the representations of Arnspiger as to justify appellees in rescinding the contract and repossessing themselves of the goods sold. The idea that Arnspiger was practicing a fraud on appellees is also rebutted by the fact that at the time of the purchase a chattel mortgage was given by the purchasers on their whole stock,-worth from $600 to $700, to secure the $540. And notwithstanding the fact that the mortgage turned out to be invalid, this fact was unknown to the parties at the time. On the contrary, both parties then thought the mortgage valid, and that the payment of the debt was thereby secured. This evidence fails to show that the purchasers induced the sellers to enter into the contract by fraud, and hence the title to the goods passed by the sale.

Judgment reversed and cause remanded.

Eeversed and remanded.


text:
    David H. Vandolah v. Addison Kanouse.
    G-atínishment—Res adjtjdicata.—A town recovered judgment against K., father of appellee, and a writ of garnishment was issued against appellant and his partner, who were bankers, and appellee, and served upon all except the partner, and interrogatories were filed by the town to which separate answers were filed, appellant denying that he had in his hands, or under his control, any moneys or properly belonging to K., hut admitting that they had in their hank $400 deposited by K. to the credit of appellee, to whom atone he claimed they were liable for the same; appellee, by his answer, denying all indebtedness to bis father, and claiming that he was the owner of the $400 in the bank. The trial resulted in a judgment against the banking firm, as garnishees, in favor of K.. for the use of the town, for $194.60, from which appellee appealed and the judgment was sustained. Appellee now brings suit against appellant and his partner to recover the amount of the deposit made with them. Held, that the adjudication in the garnishment suit is a bar to appellee’s right of recovery, to the extent of the judgment rendered; that it is not material in this suit whether the partner was served with process in the original suit or not.
    Appeal from the Circuit Court of McLean county; the Hon. E. M. Benjamin, Judge, presiding.
    Opinion filed November 21, 1884.

      Messrs. McNulta & Weldon, Mr. Joseph M. Weakly and Mr. William E. Hughes, for appellant;
    as to res adjudicata, cited Gray v. Gillilan, 15 Ill. 453; Wright v. Dunning, 46 Ill. 271; Rogers v. Higgins, 57 Ill. 244; Kelly v. Donlin, 70 Ill. 378; Baker v. Palmer, 83 Ill. 568; Hanna v. Read, 102 Ill. 596; Benjamin v. R. R. Co., 49 Barb. 448; B. of S. v. M. P. R. R. Co., 24 Wis. 124; Stevens v. Hughes, 7 Casey, 381.
    The rule as to the binding force and effect of a former adjudication extends in all its force to suits in garnishment and other statutory proceedings: Graceland Cemetery Co. v. People, 92 Ill. 619; Perkins v. Parker, 1 Mass. 117;. Glass v. Nichols, 35 Me. 328; Stevens v. Gaylord, 11 Mass. 265; Richardson v. Watson, 23 Mo. 34.
    Mr. Thomas F. Tipton, for appellee.
   Higbee, P. J.

This was a suit brought by appellee for the use of Thomas F. Tipton against appellant and one Isaac Harness, to recover the amount of a deposit made with them as bankers. Vandolah only was served with process, and the trial resulted in a judgment against him for the full, amount of the deposit and interest thereon, from which he appeals to this court.

Under the general issue, and an agreement that all matters of defense might be given in evidence under the same, appellant introduced in evidence the records of certain garnishee proceedings for the purpose of showing a former adjudication of the same matters in issue between the same parties.

The only question is as to the sufficiency of these proceedings to constitute a bar to the plaintiff’s right to recover the sum sued for or any part of it.

The evidence shows that the town of Lexington had recovered a judgment in the McLean Circuit Court against one Uzziel Kanouse, the father of appellee, for the sum of $25 and costs of suit, for the violation of one of its ordinances, upon which an execution was issued and returned wholly unsatisfied, and thereupon a writ of garnishment was issued from said court against appellant, his partner, Harness, and appellee, Addison Kanouse, and served upon all except Harness.

Interrogatories were filed by the town of Lexington, to which separate answers were filed by Yandolah and Addison Kanouse. The former, by bis answer, denied that he had in liis hands or under his control any moneys or property belonging to Uzziel, but admitted that he was a member of the banking firm of Yandolah & Harness and that they had in their bank the sum of $400 deposited by Uzziel to the credit of his son Addison, to whom alone he claimed they were liable for the same. Appellee, by his answer, denied all indebtedness to his father and claimed that he was the owner of the $400 in the bank and entitled to the same. Replications were filed to these answers and a trial had, resulting in a judgment against Yandolah & Harness, garnishees, in favor of Uzziel Kanouse for the use of the town of Lexington for $194.60, from which appellee prosecuted an appeal to the appellate court, where the judgment was affirmed.

A garnishee is a statutory proceeding and the effect of the judgment upon the rights of the parties must depend upon the effect to be given to the statute in force at the time. By chapter 62, entitled “Garnishment” Rev. Stat. 1880, p. 598, it was provided, § 11, “ If it appears that any goods, chattels, dioses in action, credits or effects in the hands of a garnishee are claimed by any other person, by force of an assignment from the defendant, or otherwise, the court or justice of the peace shall permit such claimant to appear and maintain his right. If he does not voluntarily appear, notice for that purpose shall be issued and served on liim in such a manner as the court or justice shall direct.”

§ 12. “If such claimant appears, lie may be admitted as a party to the suit, so far as respects his title to the property in question, and may allege and prove any facts not stated nor denied by the garnishee, and such allegations shall be tried and determined in the manner hereinbefore provided. If such person shall fail to appear after having been served with notice in the manner directed he shall nevertheless be concluded by the judgment in regard to his claim.”

That appellee had the right to interplead and try his right to the money in the hands of the bankers under these pro visions of the statute is settled by the case of Meado wcroft v. Agnew, 89 Ill. 469.

The answer itself, though not a formal interpleader, contains all the allegations necessary to enable appellee to litigate his right to the $400 in dispute. It matters not by what name it is called, it complies with the requirements of the statute, which provides that an adverse party may allege and prove any facts, etc.

Section 28 of the act above referred to gives the right of appeal from any judgment or final order to “any party to such proceeding.” Appellee availed himself of this right and appealed to the appellate court, where the judgment was affirmed. Both appellant and appellee were parties to the garnishee suit; the real question litigated was whether the money in the bank was subject to the garnishee process in favor of the town, or the property of appellee, who appeared as an interpleading claimant, and that issue was found against appellee, whether rightfully or wrongfully, can not be inquired into in this suit. He has had his day in court where the right to recover the money he now sues for was determined against him, and the adjudication in that case is a bar to his right of recovery here, to the extent of the judgment rendered.

It is not material in this suit whether Harness was served with process in the original suit or not. The judgment was valid against Vandolah and that is sufficient, but the record shows an appearance by Harness. It recites the appearance of the parties and then follows the judgment against Harness and Vandolah. Both prayed an appeal to the appellate court, which was allowed, but they failed to give the bond required and subsequently removed the case to said appellate court, by a writ of error, and both assigned errors upon the record in said court, where the judgment of the court below was affirmed.

The extent of the recovery in favor of the judgment creditor in the garnishee suit was necessarily limited to the amount of the judgment in favor of the town against Uzziel and the costs of the proceeding, which was less than the amount due from the bank. Of course this proceeding is only a defense in favor of the bank to the extent of the judgment rendered against it. The fact that the arrangement between the bank and the father and son may have been held void as against creditors does not affect its validity as between the parties themselves; and under it appellant was entitled to recover the amount due in excess of the judgment. But we think the court erred in rendering a judgment for the full amount. We are also of the opinion that the court erred in allowing interest on the sum due.

Reversed and remanded.


text:
    Margaret J. Fifield v. Gorton, Chapman & Co.
    1 Bill of discovert.—Where the answers of each and all of the defendants to a bill of discovery, authorized by § 49, Ch. 22, R. S. 1874, denied all the allegations of the bill and made no discovery, the right to proceed further under it was at an end.
    2. Equity jurisdiction—Removing fraudulent conveyances.— The power of courts of equity to remove fraudulent conveyances of a judgment debtor out of the way of an execution in favor of a judgment creditor can not he questioned. But the jurisdiction in such cases rests solely upon the grounds of fraud.
    3, Lien of judgment creditor does not extend to rents and profits.—Where at the time a bill in equity was filed by a judgment creditor, the judgment debtor owned only an equity of redemption in the house occupied by her tenant, the same having been previously sold on foreclosure of mortgage against her, and the argument used was that the judgment was a lien on the equity of redemption and therefore a court of equity should cause the rents to be paid to the judgment creditor. Held, that the lien in favor of a judgment creditor is given by statute and can not be extended beyond its terms; it is confined to the real estate and does not extend to .the rents and profits; that there was no occasion for the interference of a chancery court as the judgment creditor had a full and complete remedy at law by garnishment.
    Appeal from the Circuit Court of McLean county; the Hon. F. Blades, Judge, presiding.
    Opinion filed November 21, 1884.

      Mr. William E. Hughes, for appellant.
    Messrs. Herrick, Lucas & Spencer, for appellee.
   Higbee, P. J.

Tills was creditors’ bill by Gorton, Chapman & Co., against Margaret J. Fifield, her daughter, Alice Hulee, P. Schauin, Mrs. P. Sell an m, and Ed. Schanm, alleging that the complainants were the owners of four judgments against Mrs. Fifield, of record in the office of the clerk of the Circuit Court of McLean county, upon which executions had been issued, and returned unsatisfied for want of property whereon to levy, and that her daughter, Alice Hulee, had in her possession or under her control, divers goods, wares, personal property, moneys, stocks, bonds, judgments, promissory notes, bills of exchange, books of account, debts, evidences of indebtedness, and other dioses in action, real estate, chattels real, and contracts for real estate which she held in trust for her mother, and full discovery was asked of all such property) but not under oath.

To this extent this was purely a bill for discovery, authorized by Sec. 49, Chap. 22, Rev. Stat. 1874, and as the answers of each and all of the defendants denied all the allegations of the bill and made no discovery, the right to proceed further under it was at an end. The P. F. Ins. Co. v. Cent. National Bank, 1 Bradwell, 344; H. S. Ins. Co. v. Central National Bank, 7 Bradwell, 426.

But even if the answers refusing the discovery sought were not conclusive, the result would not be different, for there was not a particle of evidence to sustain these allegations of the bill.

There was another branch of the bill, however, which did not depend upon the discovery to be made, but found an independent ground of equity jurisdiction. It was that part alleging that the judgment debtor, Mrs. Fifield, was the owner of certain real estate in Bloomington, described in the bill; that the same was in the possession of defendants, who claimed to have some title or interest therein, which was charged to be fraudulent and void, as against complainants, and a hindrance to the collection of their execution.

The power of courts of equity to remove fraudulent conveyances of a judgment debtor out of the way of an execution in favor of a judgment creditor can not be questioned. But the jurisdiction in such cases rests solely upon the grounds of fraud. Here there was no evidence tending to show that defendants had interposed any fraudulent claim of right to the property, and hence the jurisdiction of the court was not maintained as to this branch of the bill.

It was also charged in the bill that said real estate was incumbered by a large amount oi bona fide prior liens and that its value over and above the liens was not sufficient to pay complainants’judgments, and a receiver was applied for and appointed to collect the rents and profits.

All of the material allegations of the bill were denied by the defendants, except that Mrs. Schaum admitted that she was the tenant of Mrs. Fifield under a written lease of one of the houses described in the bill. The order of the court required Mrs. Sclianm to pay rent to the receiver, who was finally decreed to pay-the same to complainants to be applied on their judgments.

It seems that at the time the bill was filed Mrs. Fifield owned only an equity of redemption in the house occupied by her tenant, Mrs. Schaum, the same having been previously sold on foreclosure of mortgage against her.

The argument is that the judgment was alien on the equity of redemption; therefore, a court of equity should cause the rents to be paid to the judgment creditor.

We are not referred to any precedent or authority to sustain this position and donbt if any can be found.

There is, in this respect, no analogy between the rights of a judgment creditor and a mortgagee. The latter, after condition broken, is entitled to the immediate possession of the mortgaged premises, and may recover the same by ejectment or writ of entry, and to receive the rents and profits to be applied on his mortgage debt.

A judgment debtor owning an equity of redemption in lands sold under an execution issued upon a judgment at law, is entitled to retain the possession and receive the rents and profits until a deed is made to the purchaser. The lien in favor of the judgment creditor is given by statute and can not be extended beyond its terms. It is confined to the real estate and does not extend to the rents and profits.

In case the debtor fails to redeem within the time allowed him by law for that purpose, the only right left to the creditor is to redeem as a judgment creditor under the statute. Again, if Mrs. Schanm was indebted to Mrs. Fifield for rent, the law afforded appellees a full and complete remedy. They should have instituted garnishee proceedings in which the question of her indebtedness to Mrs. Fifield could have been tried by a jury in a court of law. There was no occasion for the interference of a court of chancery, and the bill should have been dismissed on the hearing.

The decree is reversed and the cause remanded.

¡Reversed and remanded.


author: . McCulloch,’J. Higbee, P. .1.

text:
    B. F. Pickerell et al. v. John Kunst.
    1. Highway commissioners—Suit by individuals foe duty owed public generally.—Qucere whether a single individual who suffers special damage by reason of the negligent performance of a duty, owed by the commissioners of highways to the public generally, can maintain an action therefor.
    2. Liability of commissioners foe not keeping bridge in proper repair.—A bridge al a crossing had been washed away and the old material had been gathered together, and a temporary bridge constructed by the highway commissioners beside the new bridge which was in process of construction. Appellee, who had frequently driven over this temporary bridge, brings this action before a justice of the peace against the commissioners, charging them with a breach of offie’al duty in not keeping the bridge in proper repair, in consequence of which appellee lost a horse. Held, assuming that this action will lie,to determine whether or not appellants were bound, in the exerc se of reasonable diligence, to repair the bridge at that particular juncture would depend upon a variety of circumstances, among which Would b i i heir financial condition with respect to other necessary works and the approaching completion of the new bridge; that as the evidence shows the bridge was repaired in August, and was at the time of the accident apparently safe and sound, before appellants can be held liable it must appear that the defects, if any, of which complaint is now made, were either known to appellants, or that the circumstances surrounding them were such that it was negligence in them not to have noticed them.
    Appeal from the Circuit Court of Sangamon county; the Hon. W. R. Welch, Judge, presiding.
    Opinion filed November 21, 1884.
    Mr. William L. Gross and Messrs. Palmer, Robinson & Suutt, for appellants.
    Messrs. Patton & Hamilton, for appellee;
    that the construction or repair of a bridge is a ministerial duty, cited Tearney v. Smith, 86 Ill. 391; Cooney v. Town of Hartland, 95 Ill. 516.
    Commissioners of highways are liable not only for misfeasance, but for nonfeasance: Thompson on Negligence, 820, note 3; Hover v. Barkhoof, 44 N. Y. 113; Robinson v. Chamberlain, 34 N. Y. 389; Smith v. Wright, 24 Barb. 170; McCord v. High, 24 Ia. 436; Nowell v. Wright, 3 Allen, 166.
   . McCulloch,’J.

This was a suit commenced before a justice of the peace by appellee against appellants, to recover damages resulting from their alleged neglect of ofiieial duty as commissioners of highways, in failing to keep a bridge in proper repair, in consequence of which appellee lost a horse.

It appears from the evidence that, at the crossing of the stream in question, there had been a bridge, but in the early part of the summer it had been washed away by a flood. Appellants thereupon gathered together as much of the old material as they could, and constructed a temporary bridge on one side of the right of way, to'answer the purposes of public travel until they could construct a new bridge in the center of the highway, and upon the site of the old one.

This new bridge was in process of construction at the time of the accident which occasioned the injury complained of and was nearly finished.

The temporary bridge already mentioned was then in use by the public for the purposes of public travel. Appellee had passed over it two or three days prior to that time, and must have known of its general condition and of the fact that if was only a temporary structure, erected for the convenience of the public until the new one, then in process of erection close beside it, could be completed. It was built so low that in time of high water it would be overflowed, and in approaching it teams were obliged to make a slight divergence from the old and beaten track and to come upon it by a steep descent. Appellee so approached it about nightfall of a foggy day in November. Tie was accompanied by another man by the name of Sunderman, who was driving another team immediately in the rear of his. As appellee approached the bridge Sunderman stopped his team to see how he would get over. As soon as appellee’s team got fairly on the bridge and the front wheels of the wagon were about the edge of the planks the “off horse” fell from the bridge into the stream beneath, and, in the struggle that ensued, the tongue of the wagon became so fixed across its neck and head as to confine it beneath the water, and in a very short time it was drowned.

As there were no written pleadings in the case we are obliged to look to the evidence for the purpose of discovering the acts of negligence complained of. Appellee, who is the only witness of the occurrence, is a German and has but a limited command of the English language. It is therefore somewhat difficult to understand perfectly what he means to say, but from his several statements it appears that as he went on the bridge he saw nothing wrong, but when the horses had got so far along that the wheels of the wagon were about at the edge of the first plank, and the wagon was pushing forward upon the horses by reason of the steep descent, a plank slipped from its place and was pushed forward on top of the next one to it, leaving a hole in the bridge. At this the “ nigh horse ” became frightened and crowded the other one off the side of the bridge into the water beneath it. Appellee is to some extent corroborated in his statement by Sunderman, who says that when appellee called for him he went forward and found the hole in the bridge as described by appellee.

It is contended by counsel for appellee that in the construction of this bridge appellants were guilty of 'the grossest negligence and misfeasance. A number of supposed defects are pointed out which go to show that it was not constructed in a very artistic manner, but since the accident to appellee’s horse can not be attributed to any other defect than that of the looseness of the planks, it will not be necessary for us to discuss that branch of the case.

In order to justify a recovery in a case like this it must appear not only that the defendant was guilty of the negligence which caused the injury, but that the plaintiff was in the exercise of ordinary care. The evidence in the case leaves it very doubtful in onr minds whether such a degree of care is shown on the part of the plaintiff. Tie says he drove on the bridge in the center of the traveled way, but the position of his wagon and the tracks it made in approaching the bridge show he did not. We think the evidence preponderates in favor of the claim made by appellants’ counsel, that the front wheel on the right hand side of the wagon did not strike the bridge at all but missed it by several inches. If this was the case then his team was in dangerous proximity to the edge of the bridge, and possibly the whole trouble arose from this fact alone.

But be that as it may, the question still remains to be determined whether or not the evidence shows such a degree of negligence on the part of appellants, as to render them liable to the plaintiff for the injury he has sustained.

The negligence complained of is the breach-of official duty in not keeping the bridge in proper repair. It is not contended that the town in its corporate capacity is liable. Ilencc the suit is brought against the commissioners in their individual capacity, for a breach of official duty, whereby appellee has sustained damages for which the law gives him no other remedy.

The case stands upon very different grounds from one in which a municipal corporation is sued for damages, resulting from its failure to keep its streets or bridges in proper repair. In the latter case the duty is cast upon the municipal ity to keep its bridges in a reasonably safe condition for public use. They have the power and it is their duty to provide themselves with the necessary means to do so. In this case the commissioners are sued for negligence in the discharge of the duties of their office, whereby damage has accrued to a private person from their neglect.

It has been a disputed question, and it is not yet settled in this State, whether or not an action can be maintained against them. The cases cited by counsel for appellee from our own Supreme Court, we do not regard as deciding the question. It may well be said, that if the commissioners in constructing a ditch or an embankment, invade the rights of an adjoining property owner, or cause his land to be overflowed, an action will lie against them individually for the damage they have done. But it is not so clear that a single individual who suffers special damage by reason of the negligent performance of a duty, owed by the commissioners to the public generally,' can maintain an action therefor.

Assuming, however, that the action will lie, it becomes important to know under what circumstances the law will hold them liable. In Hover v. Barkhoof, 44 N. Y. R. 113, which settles the "law of the State of Hew York, after a great conflict of authorities in that State, the rule is thus laid down, that the commissioners of highways, having the requisite funds in hand, or under their control, are bound to repair bridges which are out of repair, they having notice of tlieir condition, and they are bound to repair them with reasonable and ordinary care and diligence, and, if they omit this duty, they are liable to individuals who sustain special damage from such neglect. See also, Robinson v Chamberlain, 34 N. Y. R. 389; Garlinghouse v. Jacobs, 29 N. Y. R. 297.

It is also said (Hover v. Barkhoof, supra,) that if it should appear that the commissioners had some money and that there were many roads and bridges to be repaired, then they would have a discretion as to where the money should be expended, and that their duty to repair any particular bridge might so far depend upon circumstances, and be so uncertain and indefinite, that they could not in any way he made liable for negligence.

In Bartlett v. Crozier, 17 Johns. R. 440, Chancellor Kent had denied the right of action altogether, giving as one of his reasons therefor, that the duty to repair was not absolute and imperative, but dependent upon a train of circumstances indefinite and varied.

Kumerous other cases are referred to in Thompson on Kegligence, 818-20, which go to show the unsettled condition of the law upon this subject. It will be seen, however, that the action, wherever it is allowed, is grounded upon the neglect of some official duty, upon the performance of which the safety of the individual in respect to his person or his property depended. It has .therefore been held that if, in consequence of a neglect on the part of the officer charged with the duty of repairing a public structure, in the performance of his duty in that regard the same gets out of repair and a private person suffers damage therefrom, and has no other remedy, such officer is personally liable. McCord v. High, 24 Iowa, 336.

Bat it may be asked, wherein consists the breach of official duty on the part of appellants? When the former bridge liad washed away, it then became their duty with reasonable speed to restore it by building a new one, if that was necessary for the public travel. But before proceeding to do so they must have provided the necessary funds by levying a tax, unless they had already provided funds applicable to that purpose. Town of Harwood v. Hamilton, 13 Bradwell. Having proceeded to build anew bridge, then it may be asked, under what obligations were they to gather together the materials of the bridge that had been washed away, and to construct therefrom a temporary bridge for the use of the public? We think it would be difficult to show that their failure to do so would have been a breach of their public duty.

But they did proceed to gather up the said materials and put them into the temporary bridge upon which the accident happened. During the summer it was washed away a second and a third 'time and again replaced. It was erected for a temporary purpose only, and this was apparent to every passer-by, from the fact that the new bridge was in process of erection close beside it, and appellee had notice of that fact from having passed over it only a short time before. This also appears from the fact that on approaching the bridge just before the accident, be notified Sunderman of its condition, whereupon Sunderman stopped his team to see if appellee would get over in safety. It therefore appears that appellee knew of the temporary nature of the structure and must have known that the commissioners would not be justified in expending a very considerable amount of the public money in keeping it in repair. He is not, therefore, in a condition to complain that appellants did not bestow the same amount of care upon it they would have done had it been a permanent structure.

Having erected this temporary bridge for the use of the public until the new one could be completed, the real question in the case is, whether or not under all the circumstances surrounding them, they failed to exercise reasonable care in the discharge of their official duty in respect to its maintenance for the purpose intended in its erection. Thompson on Negligence, 796; Humphreys v. Armstrong Co., 56 Pa. St. 204.

To determine whether or not they were bound, in the exercise of reasonable diligence, to repair the bridge at that particular juncture, would depend upon a variety of circumstances, among which would be their financial condition with respect to other necessary works and the approaching completion of the new bridge.

The evidence in the case establishes the fact that the bridge ■was repaired early in August; that then about five of the planks at each end of it were securely nailed down and that heavy timbers, reaching the whole length of the bridge, were laid upon both ends of all the other planks.

This arrangement served the purpose well. The road upon which it was erected was a very public one and a great deal of teaming and heavy hauling was being constantly done over it. It bore up well under all this, except that on one occasion it gave way under the weight of a steam separator, but the injury then done was immediately repaired. The public seemed well satisfied with it and trusted it implicitly.

The bridge being thus apparently safe and sound, before appellants can be held liable it must appear that the defects, if any, of which complaint is now made, were either known to appellants, or that the circumstances surrounding them were such that it was negligence in them not to have noticed them.

They knew the planks were not spiked down to the stringers, but, in lien of spikes, they had placed heavy timbers upon them. So far as the evidence shows they had any knowledge upon the subject, this arrangement had answered the purpose well. It is true one or two persons testified that in crossing the bridge they had encountered some trouble by some of the planks becoming misplaced. But no notice of these occurrences had been brought home to appellants. On the contrary, the evidence shows that they had no notice of any such occurrences, and such was the frequency of teams passing over the bridge that if anything of that kind had often happened, they would have heard some complaint about it.

This being one of the essential elements in the plaintiff’s right of recovery, and the proof failing to sustain it, the court below erred in overruling the motion to set aside the verdict.

Some question is raised in the argument as to the propriety of certain rulings of the court in giving and refusing instructions, but inasmuch as they are not set out in the abstract we can not notice them. Except in regard to the looseness of the planks, and appellants’ notice thereof, we can not see that under any circumstances the evidence in this record could charge appellants with being the cause of appellee’s loss.

It is for the court to lay down the rule governing the measure of diligence required by appellants and for the jury to say by their verdict whether or not they have performed their duty according to that rule. This we understand to be the meaning of the expression that negligence is a question of fact. Thus, if the case is one in Avhich the exercise of reasonable care and prudence is required, the jury should be told that such is the measure of the defendant’s duty, and then they should be left to say whether or not, under the circumstances in proof, the defendant has exercised that degree of care.

Being of the opinion that appellee has failed to make out a case wherein .appellants have been guilty of such misconduct in office as to render them liable for the loss appellee has sustained, the judgment of the court below is reversed and the cause remanded.

Beversed and remanded.

Higbee, P. .1.

I concur in this opinion, but I am also of the opinion that the justice of the peace had no jurisdiction in the case.


author: Pee Curiam.

text:
    Elizabeth McManaman v. Mary Blocks.
    Dower—Jurisdiction.—As dower in land is an estate of freehold, the appellate court has no jurisdiction to hear and determine this appeal.
    Appeal from the Circuit Court of Cook county; the Hon. Mubray F. Tuley, Judge, presiding.
    Opinion filed November 11, 1884.
    Mr. E. C. Cbaweord, for appellant.
    Mr. Daniel J. Aveby, for appellee.
   Pee Curiam.

This was a petition for the recovery and assignment of dower in certain lands described in the petition, brought by appellant in the Circuit Court of Cook county. The court, upon a final hearing of the case, dismissed the petition for want of equity, and the petitioner appealed to this court. As dower in land is an estate of freehold, this court has no jurisdiction to hear and determine the appeal.

It should have been taken to the Supreme Court.

Appeal dismissed.


author: McAllister, J.

text:
    Theodore Nelson v. Eliza Bowen.
    1. Replevin—Trover—Jury finding only as to part of matter put in issue.—Where plaintiff brought an action of replevin in justice’s court for certain goods described in the writ, under which a portion only of such goods was obtained, and on appeal to the circuit court defendant failed to appear, and the jury impaneled and sworn to try the issues returned the following verdict: “We, the jury, find the right of property obtained on the writ of replevin in the plaintiff, and assess her damages at §133.50 for detention of goods not obtained,” and the court rendered judgment that plaintiff retain possession of the property replevied, to be held irreplevisable, and recover of defendant §133.50 as damages. Held, that when the plaintiff below sought to recover for the goods which were not obtained, it was in trover, and the law raised the presumption of an issue being joined as upon a plea of not guilty to that count; that the verdict is fatally defective in finding only as to part of the matter put in issue.
    2. Practice—Defective verdict.—If a jury finds but part of the matter put in issue and says nothing as to the rest, the verdict is ill, and a venire facias de novo shall issue if no judgment is given; but if judgment is given upon such verdict it shall be reversed.
    Error to the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Opinion filed November 11, 1884.
    Hr. Frank Baker, for plaintiff in error;
    that if the jury find only part of the matter in issue, judgment can not be entered on the verdict, and if entered it must be reversed, cited 1 Tidd’s Practice, 140; Bemus v. Beekman, 3 Wend. 668; Miller v. Tretz, 1 Lord Raymond, 324; Patterson v. U. S., 2 Wheat. 221; Dart v. Horn, 20 Ill. 213; Swain v. Roys, 4 Wis. 130; Com. Dig. Plead., § 22; Van Belthnysen v. DeWitt, 4 John. 214.
    Hr. George Sparling, for appellee;
    that the informality in the verdict should not vitiate, cited Bates v. Williams, 43 Ill. 494; James v. Morey, 44 Ill. 352; Hartford Ins. Co. v. Vanduzor, 49 Ill. 489; Parmelee v. Smith, 21 Ill. 620; Kirkpatrick v. Cooper, 89 Ill. 210; Hudson v. Maze, 3 Scam. 578.
   McAllister, J.

This was an action of replevin, brought in justice’s court, by Bowen against Kelson, for certain goods and chattels described in the writ, under which a portion only of sncli goods was obtained. An appeal was taken to the circuit court, and when the case was reached for trial the defendant failed to appear, and the pi ai n tiff had a jury impaneled and sworn to try the issues, who, after hearing evidence, returned the following verdict, which was entered of record: “We, the jury, find the right of property obtained on the writ of replevin in the plaintiff, and assess her damages at one hundred and thirty-three and dollars, for detention of goods not obtained.” Whereupon the court rendered judgment that plaintiff retain possession of the property replevied, to be held by her irreplevisable, and recover of said defendant one hundred and thirty-three dollars and fifty cents, her damages so as aforesaid by the jury assessed, etc.

The defendant brings the case here on error, and assigns for error that said verdict was so defective in substance that the judgment must necessarily be regarded as erroneous.

The action having originatedin justice’s court, no pleadings in writing were required there or on appeal. But it does not follow that- there were no particular issues to be tried, when the jury was chosen and sworn in the circuit court. When the plaintiff below sought to recover for the goods which were not obtained by the writ of replevin, it was in trover, under the statute above referred to; and the case is to be regarded the same as if there had been a count in trover. That beine so, then the law raises the. presumption of an issue being joined, as upon a plea of not guilty to that count. Hennies v. The People, 70 Ill. 100.

What in that state of the case were the issues? In order to recover, the plaintiff was bound to show absolute or special property in the goods or some of them, and a wrongful conversion by the defendant. Whether there was such property in the plaintiff, and whether the defendant had wrongfully converted the goods in question, were necessarily the issues involved. A general verdict of guilty would, however, comprehend them all. But the verdict in this case does not find the defendant guilty under any issue. And, as respects the goods not obtained under the writ, it finds nothing as to the property of the plaintiff in them or any part of them; nor does it find that they had been wrongfully taken or detained by the defendant. The verdict is manifestly defective in finding only as to part of the matters put in issue, and in saying nothing as to other matters essential to the judgment which was given.

In Mattson et al. v. Hanisch, 5 Bradwell, 102, we stated the rule in such case to be this: “If a jury finds but part of the matter put in issue, and says nothing as to the rest, the verdict is ill, and a venire facias de novo shall issue if no judgment is given; but if judgment is given upon such verdict it shall be reversed.” That rnle is fully supported by the authorities. In Miller v. Trets, Ld. Raym. 324, there was an information exhibited against defendant for selling lace and silks, etc. Upon issue joined the jury found the defendant guilty as to the selling lace, etc., but said nothing as to the silks, and judgment passed in the exchequer for the informer. Upon error the judgment was reversed because the verdict did not comprehend the whole issue.

In Patterson v. United States, 2 Wheat. 221, the verdict of the jury varied from the issue and found only as to part of the matter in issue. The court, by Washington, J., said: “ The rule of law is precise upon this point. A verdict is bad if it varies from the issue in a substantial matter, or if it find only a part of that which was in issue. The reason of the rule is obvious; it results from the nature and the end of the pleading. Whether the jury find a general or a special verdict it is their duty to decide the very point in issue, and although the court in which the cause is tried may give form to a general finding, so as to make it harmonize with the issue, yet if it appears to that court or to the appellate court that the finding is different from the issue or is confined to a part only of the matter in issue, no judgment can be rendered upon the verdictd’

Bemus v. Beekman, 8 Wend. 668, is to the same effect. Sivani v. Roys, 4 Wis. 150, holds that the verdict in such a case as this, if it fail to find that the defendant wrongfully took or detained the goods, is so defective that a judgment .upon it must be reversed.

Being of the same opinion here, the judgment of the court below will he reversed and the cause remanded.

Judgment reversed.


author: Per Curiam.

text:
    George C. Hicks, Impl’d, etc. v. William G. Stephens.
    Rescission op contract.—The court is of opiniou that the court below was justified in rescinding the sale and decreeing a return of the notes and money paid on the contract. But the court should have decreed the return of the §250, as it was a part payment of the purchase money.
    Appeal from the Superior Court of Cook county; the Hon. Henry JM. Shepard, Judge, presiding.
    Opinion filed November 11, 1884.
    Hr. H. W. Wolseley, for appellant.
    Hr. Hllman Strong and Hr. Edward A. Dicker, for appellee.
   Per Curiam.

This was a bill in chancery brought by appellee, Stephens, against appellant, Hicks, and one Jones, seeking to rescind a sale by Hicks to Stephens and Jones, of an interest in a patented invention for a tube closer in boilers, designed to save fuel and steam. In execution of the contract of sale, Stephens gave to Hicks his three promissory notes for $2,500 each, and paid him $2,500 in cash. He also paid to Jones $250, being one half of $500 previously advanced by Jones to Hicks, for an option to make the purchase. By agreement of all the parties, the $250 thus paid to Jones was to he credited by Hicks as so much paid by Stephens on the purchase money, and it was accordingly indorsed by Hicks on one of Stephens’ notes. The bill prayed for a rescission of the sale, and a return of the notes and money, on the ground of fraudulent misrepresentations made by Hicks as to the merits of the invention, whereby Stephens was induced to make the purchase.

Upon the final hearing, the court below found that the invention was worthless, and that Stephens had been induced to make the purchase through the misrepresentations of Hicks, as alleged, and decreed a rescission of the contract, and that the notes be returned to Stephens, and that Hicks refund the $2,500 paid to him by Stephens in cash.

Upon a careful examination of the evidence, we think the court was justified in rescinding the sale, and decreeing a return of the notes and money paid on the contract. But we are further of opinion that .the court ought to have decreed the return of the $250 paid through Jones. If Stephens was entitled to the repayment of the $2,500, he was equally entitled to the repayment of the $250. They were both part payments of the purchase money, the only difference between them being that the $2,500 was paid directly by Stephens, and the $250 by the hands of Jones. They were both actually received by Hicks, and by the mutual agreement of all the parties, were credited to Stephens as so much paid by him on the purchase money.

Defendant in error has assigned as a cross-error, the omission of the court to embrace in the decree the $250 in question, which assignment we think is well taken. The decree will accordingly be reversed and the cause remanded, with instructions to the court below to add to 'the money decree the further sum of $250, the rest of the decree to be rendered as heretofore. The costs of this court to be paid by plaintiff in error.

Reversed and remanded with directions.


author: Wilson, P. J.

text:
    John Kranz v. Ludwig Thieben.
    1. Instructions must be accurate.—Where the evidence as to controverted questions of fact is conflicting, instructions must be accurate.
    2. Instructions—Negligence.—An instruction that “if the jury believe from the evidence and the instructions in this case that the plaintiff hath sustained damages by reason of negligence and carelessness of the defendant, or his agents and servants, acting under his direction, in and about his business, and that the plaintiff used due care and caution on his part-, then the law is for the plaintiff, and the jury should so find." Held, erroneous in not limiting the negligence complained of to the conduct of the particular business out of which the alleged cause of action arose; in not embracing negligence as a part of its hypothesis in clear and unambiguous terms; in adding “ and instructions of the court."
    3. Gross negligence defined.—■'Where the court modified an instruction defining “gross negligence” as “ a wrongful act or omission willfully and maliciously done or omitted,” by inserting “ gross negligence is defined to be a wrongful act or omission on the part, etc." Held, that both definitions were erroneous. Gross negligence is the want of slight diligence.
    Error to the Circuit Court of Cook county; the Hon. John C. Rogers, Judge, presiding.
    Opinion filed November 11, 1884.
    Messrs. McClellan & Cummins, for plaintiff in error.
    Mr. George H. Kettelle, for defendant in error.
   Wilson, P. J.

This suit was brought by Ludwig Thieben, the defendant in error, against John Kranz, plaintiff in error, before a justice of the peace, to recover damages alleged to have been sustained by Thieben by the falling of plastering from the ceiling of a store occupied by him as a crockery dealer. The case was taken by appeal to the Circuit Court of Cook county, where it was tried by a jury, resulting in a verdict for Thieben for $100.46. Kranz brings the case to this court by writ of error.

It appears Kranz was a manufacturer of candies, using the story above Thieben’s store for a packing room. In September, 1882, a piece of plastering fell from the ceiling of the store occupied by Thieben, breaking some of his crockery and glassware and causing the injury complained of. The testimony on the part of the plaintiff tended to show that the plastering fell by reason of the jar caused by hammering on boxes by Kranz and his employes, improperly handling them, rolling them on the floor to the elevator, etc. On the other hand Kranz offered evidence tending to prove that the packing and handling of the boxes was done in a careful manner and in such a way as not to injure the plastering; that the plastering was defective and fell in consequence thereof, and not by reason of any fault on the part of Kranz or his servants. The testimony on these controverted questions of fact was conflicting, making it a case especially appropriate for a jury. Had the instructions given in the case been free from material errors we should not have felt justified in reversing the judgment whichever way the jury might have found.

The first instruction given on the part of the plaintiff was as follows:

The court instructs the jury that if they believe from the evidence and the instructions in this case that the plaintiff hath sustained damages by reason of negligence and carelessness of the defendant or his agents and servants acting under his direction in and about his business, and that the plaintiff used due care and caution on his part, then the law is for the plaintiff and the jury should so find.

This instruction is drawn either without due care or very artfully. It does not limit or refer the negligence complained of to the conduct of the particular business out of which the alleged cause of action arose, but it is equally applicable to any business in respect to which the defendant and his servants may have been guilty of negligence or carelessness. It is referable to his business generally, and in that respect is not sufficiently definite.

Again the instruction was so worded as to be liable to be construed by the jury as an assumption by the court that the defendant and his servants had been guilty of ncgligence'and carelessness. It does not in clear and unambiguous terms embrace negligence as a part of its hypothesis. Had its language been: “If the jury believe from the evidence that the defendant was guilty of negligence, etc.,” and that “ the plaintiff thereby sustained damages, etc.,” the instruction would have been free from misconstruction.

Nor do we see the propriety of adding to the words “ If the jury believe from the evidence ” the words “ and instructions of the court.” The jury are to find the facts from the evidence, and not from the instructions of the court. Such language coming from the court might have been regarded by the jury as an intimation that the court was of opinion that the defendant and his servants were chargeable with negligence. We think the instruction taken as a whole was nota fair presentation of the law, and was liable to mislead. As was said in Bank of Lanark v. Eitenmiller, 14 Bradwell, 22, “The object of instructions is to convey to the minds of the jury correct rules of law as applicable to the evidence which has been laid before them, and nothing should be given to the jury unless it will promote that object.”

The modification of the defendant’s first instruction defining the term “ gross negligence ” was erroneous. The instruction as asked was in substance, that if, at the time the plaintiff leased the premises where the injury happened, the defendant to the knowledge of the plaintiff was using the store above in carrying on the business of manufacturing candies, and was so using it at the time of the injury, then the plaintiff must be held to have assumed all the ordinary risks attending the occupancy of the premises below, and the defendant had the right to use his premises in such manner as premises occupied in like manner are ordinarily used; and that the burden of proof was on the plaintiff to show that the defendant used said premises otherwise than in such usual and ordinary manner, and that the conduct of the defendant amounted to gross negligence; “ that by the term gross negligence as used in this instruction, is meant a wrongful act or omission willfully and maliciously done or omitted, or wantonly reckless conduct, showing an utter disregard of the right of others.”

The court modified this instruction by striking out the words defining gross negligence, and inserting in lieu thereof “ gross negligence is defined to be a wrongful act or omission on the part of the defendant or his servants.” It is difficult to say which of the two definitions is wider of the mark. In order to constitute gross negligence it is not necessary that the wrongful act or omission should be willful and malicious. Indeed, when an act is willfully and maliciously done, it can not be properly denominated negligence. As was said by Mr. Justice Scholfield, in C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 512, “ when there is a particular intention to injure, or a degree of willful and wanton recklessness, which authorizes the presumption of an intention to injure generally, the act ceases to be merely negligent, and becomes one of violence and fraud.” And in Gardner v. Heartt, 3 Denio, 236, the court said: In negligence there is no purpose to do a wrongful act, or to omit the performance of a duty.” And in 5 Denio, 267, “Negligence, even when gross, is but an omission of duty. It is not designed and intentional mischief, although it may be cogent evidence of such an act.” See, also, Whart. on Reg. 1, 2 and 3; Thompson on Reg. 135.

The definition of gross negligence as given in the court’s qualification of the instruction is equally faulty. It is there defined to be “ a wrongful act or omission.” All distinction between the different degrees of wrongfulness is ignored. According to the definition as thus given, if the act or omission be wrongful in the slightest degree it constitutes gross negligence; in other words, slight negligence is gross negligence. Gross negligence, as defined by our Supreme Court, is the want of slight diligence: 103 Ill. 512, supra. Under the instruction as modified the jury were liable to be confused or misled, for they might have believed from the evidence that the defendant had not used the highest care, and hence being guilty of some want of care, he was, according to the instruction, guilty of gross negligence.

As the errors above indicated were of a substantial character and liable to injure the defendant’s side of the case, we are of opinion there ought to be a new trial.

The judgment below is accordingly reversed and the cause remanded.

Reversed and remanded.