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    Samuel I. Pope et al. v. Elias Lowitz.
    1. Questions of fact — Instructions.—A court by submitting questions of fact to a jury, impliedly assures them that there is evidence tending to prove the facts so admitted. As the first instruction given submitted questions of fact which were not based on the evidence it was erroneous.
    2. Instructions giving undue prominence to certain portions of evidence. — An instruction calling the attention of the jury specially to certain portions of the evidence, bearing upon the question of the scope of a party’s agency, thus giving such portions undue prominence a,nd omitting other facts in evidence bearing upon the same question, is improper.
    3. Illogical instruction. — An instruction which requires the jury to find as to certain facts and then, instead of instructing them as to the legal consequences of such facts as found, announces a proposition of law' which in no way follows as a consequence of the finding, but which is equally true and equally applicable to the case, whichever way the facts submitted are determined, is illogical, inconsequential and improper.
    4. Agency — Payment to principal of money wrongfully obtained by agent — Consequences.—If an employe collects from a'county $1,000 of money due his employers which he fails to account for to them ancl for which he is owing them, and by wrongfully assuming to act as their agent, borrows money from a third party, and a portion of such money so obtained is paid to his employers in satisfaction of the county indebtedness, and is received and applied by them on the supposition that it came from the county and was their money, as between the employe and his employers, the money belongs to the employers, and they have a right to retain it, and the fact that the employers subsequently learn that their employe, wrongfully assuming to act as their agent, had in fact borrowed the money of a third party, would not make it their duty to refund the money to such party under penalty of being deemed in law to have ratified the unauthorized act of their employe so as to become liable for the entire loan.
    Appeal from the Circuit Court of Cook county; the Hon. William H. Baknum, Judge, presiding.
    Opinion filed December 21, 1883.
    In this case, a judgment in favor of Elias Lowitz, the plaintiff, and against Samuel I. Pope and Charles H. Batten, the defendants, for $1,550 and costs, was entered by confession upon a cognovit and warrant of attorney, and afterward, on motion of the defendants, proceedings on said judgment were stayed, and leave was given to the defendants to plead. The original declaration consisted of one count in assumpsit, upon a promissory note for $1,500, dated December 30, 1882, due twenty-four days after date, purporting to be executed by the defendants, by their firm name of Samuel I. Pope & Co., and payable to their own order, and by them indorsed, said note containing in the body of it a warrant of attorney, authorizing a confession of judgment in favor of the holder, for the amount appearing to be due thereon, with costs and attorney’s fees. Afterward, by leave of the court, the plaintiffs .amended their declaration by filing the common money counts, and the defendants pleaded the general issue, and upon the stipulation of the parties, an order was entered giving leave to the defendants to avail themselves on the trial, under said plea, of all defenses, the same as though properly pleaded.
    It appeared in evidence that the defendants were engaged in the business of putting into public and private buildings, machinery, apparatus and fixtures for heating such buildings by steam, and that on tbe first day of February, 1882, they employed one Samuel E. Bullock to serve them in and about their said business. Said contract of employment was reduced to writing, and from the writing it appears that Bullock, for certain stipulated wages, agreed to devote his time, energies and business abilities to the service of the defendants for the term of one year, and to do everything in his power to further the interests, increase the business, and well and truly to serve them in the capacities in which they might choose to employ him, but the precise nature of his duties and extent of his powers as agent were not marked out or prescribed by the agreement.
    Some time prior to the date of the note in suit, the defendants had entered into a contract with the county of Cook for putting steam heating apparatus into the county infirmary; and the business of carrying on said contract, and of collecting from the county the moneys becoming due the defendants thereunder, was committed by the defendants largely to said Bullock. In order to enable the defendants to realize the moneys due them from the county in advance of their payment in regular order, Bullock, as it seems, made an arrangement with one E. A. Eilkins, who was then clerk of the county board, by which, in anticipation of the coming in of an architect’s estimate, he could draw an order on said Eilkins as clerk of said board, for the whole or a part of such estimate, and such order being accepted by Eilkins, might be negotiated by the defendants and be afterward paid by the county treasurer, out of the moneys payable to the defendants on their contract. This scheme was communicated by Bullock to the defendants, and there being an architect’s estimate in their favor for $5,088.82, the defendants drew an order on Eilkins for $8,000, payable out of said estimate, and delivered if to Bullock, who obtained Eilkins’ acceptance. The order was returned to the defendants and by them negotiated, and it was subsequently paid by the county. Shortly afterward, as it appears, Bullock collected from the county the residue of the estimate, and paid over to the defendants only $1,088, representing to them that the county had held back $1,000 until certain boilers should be furnished for the infirmary, and that when said boilers should be delivered, the sum so held back would be paid. On the 30th day of December, 1882, the date of the note in suit, Bullock handed to the defendants the sum of $1,000, representing to them that it was the money previously retained by the county and now paid over, and the defendants so received and applied it.
    It appears that on the 28th day of November, 1882, Bullock, desiring to borrow $1,000, went to one Julius Jonas, accompanied by Filkins, and applied to him for said loan. Bullock was introduced to Jonas by Filkins, as a member of the defendants’ firm,and Bullock thereupon produced to said Jonas an order on Filkins for said sum of $1,000, said order being signed by Bullock in the name of the defendants and accepted by Filkins, and upon said order obtained from Jonas a loan for that amount. Said order was subsequently paid, and the evidence tended to show that such payment was made with the $1,000 collected by Bullock from the county, and withheld from the defendants as above stated.
    A day or two prior to the date of the note in suit, Bullock applied to Jonas for a further loan of $1,500, and repeated the representations made on the former occasion by Filkins, viz., that he was a partner in the defendants’ firm. Jonas not having the money introduced Bullock to the plaintiff, and rehearsed to him said representations as to Bullock’s relations to the defendants. Bullock claimed that he wished to obtain the proposed loan for the purpose of paying the defendants’ employes, and as security for said loan he produced an order for $1,500 on the clerk of the county .board, payable to the order of J. Jonas & Co., and signed by him in the name of the defendants. Said order did not appear to have been accepted by the clerk of the board, but its non-acceptance was accounted for by Bullock by the fact that another person was then holding that office, who refused to accept orders of that character. Said order was not indorsed or assigned by the payees, J. Jonas & Co., but the plaintiff received it, and loaned Bullock $1,475, but required Bullock, as additional security, to make and execute to him, in the name of the defendants, the note in question in this suit. The money was paid over by the plaintiff to Bullock, in a check for $1,000, another check for $125 and $50 in currency, and the repayment by Bullock to the defendants of the $1,000 withheld from them, was made on the same day Bullock obtained the loan from the plaintiff. The defendants, at the time they received said $1,000 from Bullock, had no knowledge of the source from which he derived it, but supposed that it came from the county as represented by Bullock, nor had they any knowledge of the loan from the plaintiff, or of the execution by Bullock of said note and order.
    There is no evidence apart from the representations of Filkins and Bullock to Jonas and the plaintiff, that Bullock was in fact a partner in the defendants’ firm, but the evidence is directly and clearly to the contrary. It does not appear that the defendants had any knowledge of Bullock’s executing commercial paper in their name, nor is there any evidence of any express authority on his part to do so. For the purpose of showing the nature and extent of his authority, however, Filkins was called as a witness, who testified that Pope, one of the defendants, in a conversation with him in relation to the defendants’ obtaining a contract with the county, said that “ Mr. Bullock represented them, the defendants, in connection with Cook county affairs; that everything he did, or was necessary for him to do, in relation to the matter, would be made right by their firm in every way.” Also, that defendant Patten on another occasion, in a conversation with the witness, said that “ In all things connected with the contract, Mr. Bullock was authorized to act for them in every particular, for the purpose of securing the contract and carrying it out, and in doing any and all business in connection with it.” It also appears that Bullock was in fact intrusted by the defendants with the general management of their business growing out of the execution of their contract with the county.
    At the instance of the plaintiff, the court gave to the jury the following instructions:
    1. “If the jury shall believe from the evidence, that Samuel it. Bullock was employed by the defendants, on or about the 1st day of February, 1882, by a written contract entered into between them, and by which contract his duties were not particularly specified and pointed out; and that, after his employment, he was, by the defendants, appointed to be foreman of their store and business, and was directed from time to time by the defendants, or either of them, to solicit work from public and private corporations, and from the county of Cook, and to secure from the board of commissioners of Cook county, if he could, the acceptance of the defendants’ bid upon the hospital and infirmary work, and to secure the contract therefor; and that the defendants, or either of them, introduced or represented him to E. A. Filkins as a representative of, or as interested in, the business of the firm of Samuel I. Pope & Co., and that Mr. Filkins was then the chief clerk of the board of county commissioners; and that in so introducing or representing Mr. Bullock, the defendants, or either of them, told Mr. Filkins, in words or in substance, that he was their representative, and had the power and authority to act for them, and that what he did as their representative in and about the county contract, in obtaining and carrying out the same, they would approve and confirm, then, whatever Mr. Bullock thereafter did within the scope of his authority, to be ascertained from the evidence under the instructions given you, was binding upon the defendants.
    2. “And if the jury shall further believe from the evidence that as the work and the furnishing of materials upon the infirmary contract progressed, the defendants, or either of them, learned through Mr. Bullock, or otherwise knew, how money could be obtained in advance of payment by the county, and that they, or either of them, instructed or directed Bullock to aid them in procuring money in advance, and did not limit liisauthority, but left him free to do whatever appeared to him in his discretion to be necessary or proper to do to obtain the money, and sent him, or knowingly permitted him to go to Mr. Filkins for that purpose, without expressing or indicating to Mr. Filkins what were the limits of Mr. Bullock’s authority, or whether he was limited at all as to the number of orders he might draw, if any, or as to the amount of money he might obtain, if any, or the use he was to make of the orders, if any, in getting them cashed, then in law he was the authorized agent of the defendants to do whatever was necessary or proper to be done with such orders, to procure the money thereon for his principals, and they are bound by his acts, so far as the jury shall believe from the evidence he did act within the scope of his authority as the defendants’ agent.
    3. “ And if the jury shall further believe from all the evidence in this case, that Mr. Bullock was authorized by the defendants, or either of them, to procure or draw orders upon Mr. Filkins, and to have them accepted by him, and to get them cashed, and that Filkins, as chief clerk of the board of commissioners, and Mr. Townsend, as assistant clerk, (if the jury shall find from the evidence that he was assistant clerk,) were informed of such authority, and that being so informed, Mr. Filkins introduced him to Mr. Jonas and through Mr. Jonas to the plaintiff in this suit, and that Mr. Townsend introduced him directly to the plaintiff in this suit, as a person duly authorized by the defendants to raise money upon such orders, and that the plaintiff herein, in good faith, and relying upon the truth of what had been so told him, lent to Mr. Bullock for and on behalf of the defendants, the sum of $1,500 upon an order, if drawn within the scope of authority, then the defendants are liable in this case, whether Bullock had the nower to sign the note offered in evidence or not, and in that case the' verdict of the jury should be in favor of the plaintiffs.”
    4. “ And if from all the evidence in this ease, and from all the instructions of the court, the jury shall find that the defendants did authorize Bullock to draw and negotiate the order in controversy, .or orders generally for money in advance of the architect’s estimates, or did knowingly permit him to do so, then, although the jury shall believe from the evidence that his authority did not extend so far as to justify his executing the note offered in evidence, still the plaintiff will be entitled to recover in this case, provided the jury shall believe from the evidence that he lent the $1,500 to Bullock in good faith, and relying upon the order which has been given in evidence herein. Authority of Bullock to execute the note is not necessary to be proven to entitle the plaintiff to recover, provided you believe from the evidence that Bullock was authorized to execute the order and obtain the money upon it, and that he did actually obtain the money upon it.
    5. “ But, although the jury shall believe from the evidence that Mr. Bullock was not expressly authorized by the defendants to draw or negotiate the $1,500 order offered in evidence in this case, yet, if the jury shall believe from the evidence that he did it, and that any part of the money which he received from the plaintiff upon such 'order, (if he did so receive it,) was delivered or paid to the defendants by him, and that such money has been used by them in the regular course of their business, with knowledge on their part that it was procured by Bullock upon such order, then they are liable in this case to the plaintiff for the full amount of the money, if any, which he lent upon such order.
    6. “ And if the jury shall believe, from the evidence, that on the 30th day of December, 1882, Mr. Bullock delivered to the defendants the sum of $1,000, and that the money so delivered was a part of the money he received, if any, from the plaintiff, and if the jury shall further believe from the evidence that they did not know the source from which Bullock received the money, but afterward ascertained the truth to be that it came from the plaintiff, then it was the duty of the defendants, if they wished to repudiate Bullock’s authority to obtain it, to refund such money to the plaintiff. The law will not permit the defendants, under such circumstances, to retain money, if obtained upon a forged order, or upon an order drawn and negotiated without authority by their agent or servant or employe, aiffl then repudiate the order. By keeping the money, under such circumstances, if proved, they, in effect and in law, ratify and approve what. Bullock did, and are thereby estopped from denying his authority.”
    The jury thereupon found the issues for the plaintiff, and assessed his damages at $1,500, and the court, after denying the defendants’ motion for anew trial, vacated the judgment by confession, and entered judgment in favor of the plaint•iff on the verdict. The remaining facts áre sufficiently stated in the opinion of the court.
    Messrs. Tagert & Cutting, for appellants;
    that without some special authority, the agent can not hind his principal, by negotiable instruments, cited Weber v. Williams College, 23 Pick. 302; Rossiter v. Rossiter, 8 Wend. 495; Smith v. Gibson, 6 Blackf. 369; Davidson v. Stanley, 2 Man. & G. 721; Gould v. Norfolk Lead Co., 9 Cush. 338; Lagow v. Patterson, 1 Blackf. 252; Temple v. Pomeroy, 4 Gray, 128.
    Only repeated recognition of authority of agent to draw-bills will justify conclusion of such authority: 1 Parsons on Notes and Bills, 100; Page v. Stone, 10 Metc. 160; Temple v. Pomeroy, 4 Gray, 128.
    In interpreting the authority of the agent, it is to be construed strictly: Daniel on Neg. Inst., 3d ed., 292; Suwanee Mining Co. v. McCall, 3 Head, 619.
    Language, however general in form, when used in connection with a particular subject-matter will be presumed to be used in subordination to that matter: Story on Agency, 9th ed., § 62; Wood v. McCain, 7 Ala. 800.
    Evidence of the declarations of an alleged partner in the absence of his copartners, is never admissible to prove a partnership or allowed to bind copartners: Gordon v. Bankard, 37 Ill. 147; Degan v. Singer, 41 Ill. 28.
    It was error to cross-examine appellant Patten upon an account before it had been mentioned in direct examination or offered in evidence: Stafford v. Fargo, 35 Ill. 481; Bell v. Prewitt, 62 Ill. 361.
    An instruction which sets forth at length, facts as testified to by plaintiff’s witnesses, and, upon the hypothesis of the belief of such facts, directs the jury how to find, is objectionable: Village of Warren v. Wright, 103 Ill. 298; Evans v. George, 80 Ill. 51; Martin v. Johnson, 89 Ill. 539; Logg v. The People, 92 Ill. 589; Ogden v. Kirby, 79 Ill. 555; Rockford Ins. Co. v. Nelson, 75 Ill. 548.
    Instructions not based upon the evidence are erroneous: Martin v. Johnson, 89 Ill. 537; City of Freeport v. Isbell, 83 Ill. 440; Coggeshall v. Mates, 13 Bradwell, 117.

      As to the scope of authority of an agent: Evans on Agency, 61; Wurster v. Reitzinger, 5 Bradwell, 115: Kerr v. Sharp, 83 Ill. 199; Stein v. Kendall, 1 Bradwell, 103; Spooner v. Thompson, 48 Vt. 259; Dickinson v. Inhabitants of Conway, 12 Allen, 487; Reynolds v. Ferree, 86 Ill. 570; Vincent v. Ruther, 31 Tex. 77; Story on Contracts, §§ 160-1; Story on Agency, 9th ed., § 239.
    Mr. G. W. Stanford, for appellee;
    as to evidence, cited McBean v. Fox, 1 Bradwell, 177; 1 Greenleaf on Ev., § 113; Collins v. Swan, 7 Robt. (N. Y.) 623.
    Although a party’s name to an instrument may be a forgery, yet he may so far approve and adopt it as that it will be as binding upon him as though he had in fact originally executed it himself: Livings v. Wiler, 32 Ill. 387.
    One can not take the profits of a transaction and reject the burdens: Wharton on Agency, 89; Toledo, W. & W. R. R. Co. v. Chew, 67 Ill. 378.
    Though an agent exceed his authority, the principal can not adopt one part of it and reject another: Newell v. Hurlburt, 2 Vt. 351; Gray v. Otis, 11 Vt. 628; Henderson v. Cummings, 44 V. 325; Hurd v. Marple, 2 Bradwell, 402.
    Where an agent does any act for the use of his principal, and the principal enjoys the benefits and fruits of the act, he shall not afterward be allowed to say the act was illegal: Ruggies v. County of W., 3 Mo. 348; Cushman v. Lokeg, 2 Mass. 105; Low v. Conn. & P. R. R. Co., 46 N. H. 284.
    Declarations made by an agent employed in negotiating sale of promissory note, regarding purpose for which same was executed, will be considered fairly within the scope of his agency, and will bind his principal: McBean v. Fox, 1 Bradwell, 177; Bernstein v. Bernstein, 11 Bradwell, 238; Wallace v. Gould, 91 Ill. 15.
    Slight circumstances will sometimes suffice to raise presumption of a ratification: Meister v. Cleveland Dryer Co., 11 Bradwell, 227.
   Bailey, J.

The assignments of error in this case which principally claim our attention are those which relate to the instructions given to the jury at the instance of the plaintiff. As to many of the facts in the case there is no serious controversy. Thus, it is not disputed that the defendants employed Bullock as their agent, and authorized him to take charge of various matters pertaining to their business. Hor is it disputed that while he was acting as agent for the defendants he borrowed of the plaintiff the money in controversy, and executed to him, in the name of the defendants, the promissory note and order which the plaintiff now holds. The main controversy relates to the nature and extent of Bullock’s authority as agent, the question being whether he was authorized by the defendants to borrow said money and execute and deliver said note and order as security therefor.

The plaintiff’s first instruction enumerates a large number of facts bearing more or less directly upon the nature and scope of said agency, and then tells the jury that if they find said facts from the evidence, tlien, whatever Bullock thereafter did within the scope of his authority was binding on the defendants.

One objection to the instruction is, that some at least of the facts which the jury are thus directed to consider, have no basis in the evidence. For instance, the jury are directed to find whether Bullock, after his employment, was appointed by the defendants to be foreman of their store and business. We find no evidence in the record tending to show such appointment. The utmost that can be said is, that there is evidence tending to show the employment of Bullock by the defendants as their general agent in some particular matters pertaining to their business, but it nowhere appears that he was appointed foreman of their business generally. Thus, the evidence tends to show that he was their agent or representative in their dealings with the county of Cook, both in the negotiation of contracts, and in carrying such contracts out and doing all business in connection therewith. These Cook county contracts, however, or rather the one contract which the defendants are shown to have obtained from the county, constituted but a small portion of the aggregate business of the defendants. The position of foreman of their business generally was one importing more ample power and authority than that of genei’al agent in respect to a particular matter or in the performance of a particular conti’act.

The instruction further required the jury to find whether the defendants or either of them introduced or represented Bullock to Filkins, the clerk of the board of county commissioners, as a representative of, or as interested in, the business of the defendants’ firm. There is no evidence that the defendants intx’oduced Bullock to Filkins as interested in the business of their firm, or that they made any representations to Filkins that he had any such interest. The defendants testify that all that passed between them and Filkins in relation to the character and extent of Bullock’s authority was, that they answered in the negative a question put to them by Filkins as to whether Bullock was their partner. Filkins, on the other hand, testifies that both the defendants told him that Bullock was authorized to act for them in every particular in securing the contract and in carrying it out, and in doing all things in connection with it, but he does not pretend that they told him that Bullock had any interest in their business. Having an interest in the defendants’ business might well have imported to the minds of the jury the relation of partner, a relation which, if it had existed, would of itself have conferred upon Bullock authority to box'row the money in question for his firm and execute on their behalf commercial paper for its security. The court, by submitting these questions of fact to the jux’y, impliedly assured them that there was evidence tending to prove the facts so submitted.

The instruction is also erroneous in calling the attention of the jury especially to certain portions of the evidence beai'ing upon the question of the scope of Bullock’s agency, thus giving them undue prominence, and omitting other facts in evidence bearing upon the same question. It is like saying to the jury, “ In determining the scope of Bullock’s agency, these are the facts you are to consider.”

But there is a still more serious difficulty with the instruction. It is wholly illogical and inconsequential. It requires the jurv to find as to certain facts, and then, instead of instructing them as to the legal consequences of such facts as found, announces a proposition of law which in no way follows as a consequence of the finding, but which is equally true and equally applicable to the case, whichever way the facts submitted are determined. The material question is as to the scope of Bullock’s agency, but instead of submitting that question to the jury to be determined either from direct proof or as an inference from other evidential facts, it merely requires them to find certain facts from which inferences, either of fact or of law as to the scope of said agency, might have been drawn, but wholly fails to tell them what inferences would be proper, or what the force or effect or use of the facts, if found, would be in determining the issues in thecase. It thus merely submits to the jury certain facts which of themselves and apart from the inferences properly dedueible therefrom are unimportant; and follows with the legal truism that, whatever the agent did within the scope of his authority was binding on his principals. Such an instruction, instead of aiding the jury in the determination of the issues, could only have had a tendency to confuse and mislead them.

The second instruction told the jury, in substance, that if the defendants instructed or directed Bullock to aid them in procuring money in advance of its payment by the county, and did not limit his authority, but left him free to do whatever appeared to him in his discretion to be necessary or proper to do to obtain the money, and sent him, or knowingly permitted him to go to Filkins for that purpose, without expressing or indicating to Filkins what were the limits of his authority, or whether he was limited at all as to the number of orders he might draw, or as to the amount of money he might obtain, or the use he was to make of the orders in getting them cashed, then in law he was the authorized agent of the defendants to do whatever was necessary or proper to be done with such orders to procure the money thereon for his principals, and they are bound by his acts, so far as he acted within the scope of his authority.

As Bullock himself was not a witness, the only evidence of the facts treated of in this instruction is to be found in the testimony of the defendants. Patten testifies that shortly after handing in the schedule for their first estimate, Bullock told him that there was a custom at the county offices of allowing drafts to be made against the anticipated estimates in such form as to be available at the bank; that Patten told him to go and find out what the custom was, and he thereupon went and procured two blank orders of the form used by the county offices for that purpose. These were orders on Filkins, as clerk of the county board, payable out of the estimates, and authorizing the holder to receipt to the county therefor. These blanks were both filled up by Patten for the same sum, viz: $3,000, and signed with his firm name, Bullock telling him that one was to be filed with the county treasurer as his guide in paying the estimate, the other to be retained by the defendants. Patten then delivered both of said papers to Bullock to take to Filkins to get his acceptance and one of them was afterward returned to Patten duly accepted by Filkins. This order was subsequently negotiated by Patten at the defendants’ bank. It does not appear that the defendants ever employed or directed Bullock to assist them in obtaining money or orders of this character, or that they sent him to Filkins for that purpose, on any other occasion or in any other way, nor does it appear that they had any knowledge of his going to Filkins at any other time on that business, or of his drawing or negotiating or attempting to negotiate any other orders whatever. Such being the facts presented by the record, it is manifest that the foregoing instruction is a mere perversion of the evidence. It not only directs the jury to find upon facts of which there is no evidence, but authorizes inferences from those facts of which the record furnishes no warrant.

The fourth instruction requires the jury, among other things, to find whether the defendants, knowingly permitted Bullock to draw the order in controversy, or to draw and negotiate orders generally for money in advance of the architect’s estimates. There is no evidence that the defendants had any knowledge whatever of the fact that Bullock had drawn or negotiated the order in question until a considerable time afterward, nor do we find any evidence of their knowledge of his drawing or negotiating any other orders of the same character, and much less do we find evidence of the defendants knowingly permitting him to draw or negotiate such orders. The instruction to this extent has no evidence to support it, and is therefore erroneous.

The fifth instruction holds, that even if Bullock was not authorized to draw or negotiate the order in question, yet if he did so, and paid over to the defendants a portion of the money which he obtained on it, and that they received it, and used it in their business with knowledge as to how it was procured, they are liable for the full amount of the money lent on the order. The sixth instruction goes further, and holds that even if the defendants, at the time they received a part of said money, did not know the source from which Bullock obtained it, but afterward ascertained that it came from the plaintiff, then it was the duty of the defendants, if they wished to repudiate Bullock’s authority to borrow it, to refund the money to the plaintiff, and that by keeping it they ratified Bullock’s authority, and are estopped from denying it.

Had there been evidence tending to show that a portion of the money obtained by Bullock from the plaintiff was paid over to the defendants, and that they received and retained it, knowing at the time the source from which, and the circumstances under which, Bullock obtained it, the proposition of law announced in the fifth instruction would doubtless be correct. Such acts on the part of the defendants would be a ratification of the unauthorized act of their agent. But we are unable to find any evidence in the record tending to show such knowledge on their part.

On the day the loan was obtained, Bullock paid the defendants $1,000, representing to them that it was money collected by him from the county, being the sum previously withheld by the county officers, and there is no evidence that the defendants had any knowledge that the representation was untrue. And we find no evidence,, apart from the mere coincidence in dates, that said money was in fact a part of the money borrowed from the plaintiff. The extract from the defendants’ counsel’s opening address to the jury, embodied in the bill of exceptions, in which he admitted that it might be a part of the money borrowed, if to be regarded as legitimate evidence at all, neither proves nor tends to prove that it was so in fact.

But the proposition laid down in the sixth instruction is, we think, clearly erroneous. Prior to the date of the loan from the plaintiff, Bullock had collected from the county $1,000 of the defendants’ money which he had failed to account for to them, and for which he was owing them. The money obtained by Bullock from the plaintiff, if paid to the defendants at all, was paid in satisfaction of that indebtedness, and was received and applied by the defendants on the supposition that it came from the county and was their money. As between them and Bullock, it belonged to them, and they had a right to retain it. Did their learning some time afterward that Bullock, wrongfully assuming to act as their agent, had in fact borrowed it from the plaintiff, make it their duty to refund the money to the plaintiff under penalty of being deemed in law to have ratified the unauthorized act of Bullock so as to become liable for the entire loan? This question is satisfactorily answered by the case of Spooner v. Thompson, 18 Vt. 259. There an agent employed to buy goods for a principal, and to sell them at the principal’s store, borrowed some money on the credit of the principal, without authority, and put into the principal’s business, without the knowledge of the latter; it was held that the principal was not liable therefor to the person from whom it was borrowed, in the absence of a promise to pay, the court citing and applying the maxim that a party can not be made the debtor of another without his own consent. The case of Thatcher v. Pray, 113 Mass. 291, is also in point. There the plaintiff left a horse in the custody of one Gray to be kept for him through the winter, but gave him no authority to sell it. Gray afterward sold the horse to the defendant, and received in payment therefor a check which he indorsed and delivered to the plaintiff in payment of a debt which he owed him, and the plaintiff, in ignorance of the sale, collected the.' check, and applied the proceeds to the payment of the debt. In an action to recover the value of the horse, it was held! that the plaintiff’s receipt and collection of the check was not\ a ratification of the sale, and that he had a right to receive : and appropriate the check to the extinguishment of the debt in payment of which it was given to him.

Other questions are raised by counsel which we do not deem it necessary to consider, but for the error in the instructions above pointed out, the judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: McAllister, P. J.

license: Public Domain

text:
    Cleveland Co-operative Stove Company v. Thomas F. Wheeler.
    1. Hearsay evidence. — Appellee was occupying a lower floor of a building of which appellant occupied the entire upper floor. Appellee sued appellant for an injury to goods caused by an overflow of water from a water-closet in appellant’s store. The statements of appellant’s porter-as to his having found the soil pipe to the water-closet stopped up with paper when he returned from church on the night of the overflow, and how he removed it, were admitted in evidence on behalf of appellee. Held, that these statements were inadmissible, being mere hearsay evidence, since the porter was in the performance of no act in the course of his employment by appellant at the time of the declarations made by him, and they were the statements of a past occurrence resting entirely upon the credit of the person making them.
    2. Questions pertinent to the issue. — Where it was averred in the declaration and shown by the evidence that appellee, suing appellant for an injury to goods from an overflow of water, occupied the store jointly with a company who were dealers in the same kind of goods as appellee, and that the company had an agent in charge of the goods, and appellee in his examination in chief testified in a general way that he owned part of the goods and held a part for other parties. Held, that appellant’s counsel had a right to cross-examine him on the matter of ownership. Where questions put and excluded are pertinent to the point in issue, the court is bound to assume that the evidence called for would have been material.

      3. Lease — Tenants holding separately erom same landlord.— Where plaintiff occupying the same building with defendant sued defendant for an injury caused by au overflow of water from defendant’s store upon plaintiff’s goods, and both parties held separately as tenants of the samo landlord, it was error to admit in evidence, against defendant’s objection, defendant’s lease. Plaintiff was no party to such instrument, and the only duties or obligations thereby imposed or created were solely to the lessor.
    4. Responsibility op occupant op premises — Repairs.—It is a general rule of law that the occupant of premises is responsible for injuries received in consequence of a failure to keep them in repair.
    Appeal from the Superior Court of Cook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Opinion filed December 21, 1883.
    The appellee, Wheeler, on and before Hov. 30, 1882, was in the occupation of-the lower floor of store Ho. 203 Lake street, Chicago, and carrying on there the business of leather merchant, having a stock of leather goods in said store, while the appellant corporation occupied the entire floor above appellee’s store for its business, both parties holding separately as tenants of the same landlord. There was a water-closet in appellant’s store, over that of appellee, which was under the care, control and management of appellant; and some time after appellee’s store was closed on said 30th of Hovember, and during the night of that day, there was an overflow from said closet, and the water ran down into appellee’s store and upon the leather there, doing damage to a portion of it. This action was brought by appellee, Wheeler, against the appellant, to recover the damage so sustained, on the ground that it was the result of negligence on the part of the appellan t, its agent and servant, in the care and management of said water-closet. On the trial under the general issue, the plaintiff gave evidence tending to show the situation and occupation of the premises of the respective parties. The plaintiff, as a witness in his own behalf, testified that the Eagle Tanning Works occupied the lower floor jointly with him; that it had goods there, and an agent of the name of McConnell in charge; that he, plaintiff, was connected with the Eagle Tanning Works Company, and was a stockholder therein, but that his business was separate from that of the company. The witness testified that the water ran on to thirty or forty thousand dollars worth of property, and that the water did damage to his leather to the amount of $2,076.56. On cross-examination by defendant’s counsel, the witness said he was the owner of most of the property; some of it he was selling for other people. The witness was then asked to state what he owned and what belonged to somebody else. To this inquiry, the plaintiff’s counsel objected, the court sustained the objection, and defendant’s counsel excepted. The witness was then asked to state what part of the property was his own absolute property. This was objected to in like manner, the objection sustained by the court and exception by plaintiff. The court permitted one Clark, a private watchman belonging to Pinkerton’s force, to testify that about half past twelve o’clock of the night in question lie went to the street door of the stairs leading up to defendant’s store, and called up the colored porter; that the latcer told witness that when he (the porter) came back from church that evening — that night, that he caught the water running over the floor, as the soil pipe was stopped up with paper, and he got an umbrella cane, and poked the paper down through the soil pipe. The defendant’s counsel objected to the witness telling what the porter said; but the court overruled the objection, and exception by defendant was duly taken.
    The court permitted the plaintiff’s counsel to introduce in evidence the lease between the defendant and its landlord, which contained stringent covenants on the part of the defendant as to repairs. This was also objected to by defendant, and exception duly taken.' The jury found the defendant guilty, and assessed plaintiff’s damages at $2,076.56, for which judgment passed, and defendant brings the record to this court.
    Mr. Sidney Thomas and Mr. O. 0. Kohlsaat, for appellant;
    that the presence of a fish in the supply valve of a water-closet without the knowledge or fault of the defendant, causing a continuous flow of water which floods a building is an inevitable accident for which no recovery can be had, cited Carstairs v. Taylor, L. R. C. Ex. 217; Chicago v. Lavelle, 83 Ill. 482; Hodgson v. Dexter, 1 Cranch, C. N., 109; Ross v. Feddew, 1 Thompson on Neg., § 6, p. 91.
    Contributory negligence on the part of the plaintiff will defeat his. action unless it appears that the defendant was guilty of gross negligence: Village of Kewanee v. Depew, 80 Ill. 119; C., B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; City of Quincy v. Barker, 81 Ill. 300; Town of Earlville v. Carter, 6 Bradwell, 421; Folsom v. Town of Underhill, 36 Vt. 691; Buckingham v. Fisher, 70 Ill. 122; Ortmayer v. Johnson, 45 Ill. 469; T., W. & W. Ry. Co. v. Black, 88 Ill. 112; C. & N. W. Ry. Co. v. Scates, 90 Ill. 586; I., B. & W. Ry. Co. v. Flanigan, 77 Ill. 365.
    The evidence as to the declarations of the porter was inadmissible: Luby v. Hudson River R. R. Co., 17 N. Y. Court of Appeals, 131; Whitaker v. 8th Ave. R. R. Co., 51 N. Y. 295; Bellefontaine R. R. Co. v. Hunter, 33 Ind. 335; Robinson v. Fitchburg R. R. Co., 7 Gray, 92; Moore v. Conn. R. R. Co., 1 Greenleaf on Ev., § 113; Story on Agency, §§ 134, 135-137; Kent v. Mason, 79 Ill. 560; Ohio & Memphis R. R. Co. v. Porter, 92 Ill. 437; Wabash, St. L. & P. Ry. Co. v. Fenton, 12 Bradwell, 417; Rogers v. McCane, 19 Mo. 570; Ladd v. Congins, 35 Mo. 513; Mich. C. R. R. Co. v. Gougar, 55 Ill. 503; Mich. C. R. R. Co. v. Carrow, 73 Ill. 348; 1 Greenleaf on Ev., §§ 113 and 114.
    The evidence as to prior leakages was irrelevant: 1 Greenleaf on Ev., §§ 51, 52; Malcomson v. Clayton, 13 Moore, P. C. C. 198.
    The covenants of defendant’s lease were incompetent: Swords v. Edgar, 59 N. Y. 28; Clancy v. Bryne, 56 N. Y. 129.
    It was error to admit over appellant’s objections, irrelevant though immaterial evidence, which tended to mislead: Harris v. Miner, 28 Ill. 155; Denman v. Bloomer, 11 Ill. 177; Coughlin v. The People, 18 Ill. 266; Kelderhouse v. Saveland, 1 Bradwell, 65.
    As to the admission of newly discovered evidence: Sollman v. Becker, 85 Ill. 183; Edgmon v. Ashelby, 76 Ill. 161; Bowers v. The People, 74 Ill. 418.

      Mr. Geo. O. Ide, for appellee;
    that appellant having exclusive use of the closet and being under the legal as well as the assumed duty of keeping the closet in repair and safe condition was presumptively responsible for the damage from the overflow, cited Warner v. Kauffman, 2 Phila. 259; Mendel v. Fink, 8 Bradwell, 383; Chicago City Ry. Co. v. Lewis, 5 Bradwell, 242-6.
    As to combined negligence and accident: City of Joliet v. Verley, 35 Ill. 60; City of Bloomington v. Bay, 42 Ill. 510; City of Aurora v. Pulfer, 56 Ill. 276.
    The statement by appellant’s servant while in the scope of his employment was admissible as it was part of the res gestas: Wallace v. Goold, 91 Ill. 15; O. & M. R. R. Co. v. Porter, 92 Ill. 437; Merchants D. T. Co. v. Leysor, 89 Ill. 44.
    Appellee had the lawful right to sue and recover for the entire amount of damage done, whether he owned the whole or held a part only as bailee for others. He was in lawful possession of the whole and as against him, appellant, as a mere tort feasor could not question his right to recover the entire amount of damage proved: Benjamin v. Stremple, 13 Ill. 468; Winne v. Hammond, 37 Ill. 105; C. & N. W. Ry. Co. v. Shultz, 55 Ill. 421; P. P. & J. R. R. Co. v. McIntire, 39 Ill. 298; G. W. R. R. Co. v. McComas, 33 Ill. 187; C. & A. R. R. Co. v. Shea, 66 Ill. 480; Green v. Clarke, 2 Kernan, 343.
    As to diligence in discovering new evidence: Champion v. Ulmer, 70 Ill. 322; Wright v. Gould, 73 Ill. 56; Union Rolling Mill Co. v. Gillen, 100 Ill. 52; Meyer v. Mead, 83 Ill. 19; Dyer v. The People, 84 Ill. 624.
   McAllister, P. J.

The damages which the plaintiff would be entitled to recover in respect of the injury complained of would be limited to such as were proximately consequent upon an injury to goods in which he had some property, either absolute, special or qualified, or goods which he had in charge under such circumstances or relations, as that he would be legally accountable to some third party. The circumstance alone that the goods alleged to have been injured were there in the store of which he was an occupant, would not raise a prima facie presumption of property in him because it was averred in the declaration and shown by the evidence that he occupied the store jointly with the Eagle Tanning Works Company, dealers in the same kind of goods, and that they had an agent, Mr. McConnell, in charge of them.

The plaintiff, in his examination in chief, testified in a general way, that he owned part of the goods in question, and held a part for other parties. Whereupon the defendant’s counsel innocently supposing that this case was in no wise different from others, and that the defendant was not conclusively bound by what the plaintiff had stated upon these points in his direct examination, proceeded to cross-examine him on the matter, when, upon objection of plaintiff’s counsel, the court stopped the inquiry and excluded the evidence.

It is obvious, from this bare statement, that such ruling was erroneous. It might have turned out when the plaintiff was brought close down to particular facts, that he was the owner of a very small portion of the goods, and that as to those of which in a general way he had claimed to be bailee, there was no bailment at all so far as he was concerned; that they belonged to the Eagle Tanning Works Company, and were at that time in the custody of their agent, McConnell.

It is enough, however, that the questions put and excluded were pertinent to a point in issue in which case the court is bound to assume that the evidence called for would have been material. 2 Phil. on Ev., Cowen, Hills & E.’s Notes, p. 903; Halsey v. Jarvis, 7 Bosw. 461.

The admission in evidence on behalf of the plaintiff, of the statements made by the defendant’s porter as to his having found the soil pipe to the water-closet stopped up with paper when he returned from church, and how he removed it, was manifestly improper. The porter was in the performance of no act in the course of his employment by the defendant, at the time of the declaration made by him. The injury, the principal event, was completed. They were the statements of a past occurrence, and resting entirely upon the credit of the person making them. They can not be regarded as a part of the res gestae, but must be taken as mere hearsay evidence. The porter should have been called as a witness. But it was urged by appellee’s counsel that this evidence was not objected to by defendant in apt time. The answer to that is, that the presiding judge has certified in the bill of exceptions, that to the admission of that evidence, the defendant’s counsel then and there duly excepted. Besides, it appears from the record that defendant’s counsel was prevented from moving to strike it out or to exclude it, by the court saying he should let it stand, and would not change his ruling if the plaintiff wanted it to stay there.

We are of opinion that the court erred in admitting in evidence against the defendant’s objections, the lease between the Couch estate as lessor, and the defendant as lessee of the premises occupied by the defendant, and in which the water-closet in question was located. The plaintiff was no party to such instrument, and therefore no legal duty could arise, on the part of the defendant, toward the plaintiff, from that instrument 'or any covenants contained in it, since the only duties or obligations thereby imposed or created, were solely to the lessor.

It was not required to show the extent of the defendant’s possession, because that was obvious and well understood. It is a general rule of law that the occupant of premises is responsible for injuries received in consequence of a failure to keep them in repair. Gridley v. City of Bloomington, 68 Ill. 47.

To admit the lease in evidence, was simply the admission of irrelevant testimony, calculated to confuse and mislead the jury. Notwithstanding its irrelevancy, the lease was alluded to in the instructions for the plaintiff as a substantive element in the case. Other points for reversal have been made and discussed by appellant’s counsel, but which we do not deem it necessary to consider. Bor the errors pointed out, as above, the judgment of the court below will be reversed and the cause remanded for a new trial.

Judgment reversed.


author: Wilson, J.

text:
    City of Chicago v. The Wright and Lawther Oil and Lead Mfg. Co.
    1. Damages for building viaduct — Ordinance—Evidence.— Where, in an action against a city for damages to plaintiff’s property by the construction of a viaduct, an ordinance of the city, by which the city was indemnified for all such damages by a certain railroad company, was read to the jury professedly for the purpose of fixing a date, and was commented upon by counsel. Held, that to fix the date it was not necessary the entire ordinance should be introduced; whether the city was indemnified or not was wholly immaterial, and the introduction of such evidence was prejudicial error; even if the entire ordinance was admissible, it was improper for the counsel to comment upon the indemnity clause.
    2. Instruction — Evidence.—An error in admitting improper evidence is not cured by an instruction not to regard the same.
    Appeal from the Superior Court of Cook county; the Hon. J oseph E. Gaby, J udge, presiding.
    Opinion filed February 12, 1884.
    This is an appeal from a judgment for $50,000, recovered by appellee in the court below in an action on the case, for damages alleged to have been done to appellee’s property by the construction of a viaduct by appellant on Polk street in said city. Prior to the construction of the viaduct, appellee, being the owner of lots having a frontage of about 150 • feet on Polk street and 200 feet on Beach street, erected and fitted up at large expense, buildings for manufacturing linseed oil. The machinery, consisting of heavy presses resting on massive foundation, large tanks, steam engine boilers and other fixtures, was placed in the first or lower story of the building. In 1881, the city constructed a viaduct on Polk street over Beach street, the east approach of which was directly in front of appellee’s building, and consisted of a solid embankment of earth and stone, the full width of the street, and about fourteen feet in height, thereby cutting off the light and means of access from Polk street to the main floor of the building.

      Upon the trial, the court, against the objection of appellant, admitted in evidence an ordinance of the city, granting permission to the Chicago, Burlington & Quincy Railroad Company to construct and operate railroad tracks between West Harrison and West Twelfth streets. Sections three and four of the ordinance are as follows:
    “Sec. 3. The permission and authority hereby granted are upon the express conditions that the said railroad company shall pay, or cause to be paid to the city of Chicago, the cost and expense of constructing and erecting a new viaduct on Polk street, over the railroad tracks crossing said street, between Canal street and the Polk street bridge, together with all proper lateral and other approaches necessary thereto, the money necessary therefor to be paid by said company as aforesaid, as fast as required by the city in pajdng for the construction and erection of said viaduct and the lateral and other approaches thereto, and shall maintain and keep the same in repair without expense or cost to the city of Chicago, such construction, maintaining and keeping in repair to be done pursuant to the direction of the city council, under the supervision of the commissioner of public works, and the permission and authority hereby granted are upon the further express condition that the said railroad company shall pay to the city of Chicago the expense of constructing, erecting, maintaining and keeping in repair viaducts over any of its said tracks, on any street or streets crossed by its tracks, except said Polk street above provided for, with proper approaches thereto, as’ the city council may from time to time require. Provided, however, that when any such viaduct, except said Polk street viaduct above provided for, can not be constructed across the tracks of said railroad company, without crossing the track or tracks of some other railroad company or companies, the said Chicago, Burlington, and Quincy Railroad Company, shall only be obliged to join such other railroad company or companies in paying the expense of erecting, constructing, maintaining and keeping in repair such viaduct and approaches, and to pay its fair proportion of such expense as between it and such other company or companies; and if such other railroad company or companies shall not join said Chicago, Burlington and Quincy Railroad Company in paying said expense, then, when the proportion of said other company or companies shall be otherwise provided, the said Chicago, Burlington and Quincy Railroad Company shall pay what would be its fair proportion of said expense, in case such other company or companies should join with it in the payment of said expense as aforesaid.
    “ Said viaduct or viaducts, and approaches thereto, to be constructed according to the plans and specifications of the department of public works. Said Chicago, Burlington and Quincy Railroad Company shall furnish sufficient outlets for the private property bounded by Harrison street, Twelfth street, Beach street and the south branch of the Chicago river.
    “ Sec. 4. The permission and authority hereby granted are upon the further express condition that the said railroad company shall and will forever indemnify and save harmless the city of Chicago against and from any and all legal damages, judgments, decrees and costs and expenses of the same which it may suffer or which may be recovered or obtained against said city, for or by reasons of, or growing out of, or resulting from, the passage of this ordinance, or any matter or thing connected therewith, or with the exercise by said company of the privilege hereby granted, or from any act or acts of said company under or by virtue of the provisions of this ordinance.”
    Exceptions were duly taken by the defendant to the ruling of the court, admitting the ordinance in evidence.
    It appears from the bill of exceptions, that while the plaintiff’s counsel was'arguing the case to the jury, he was proceeding to state that by the terms of the ordinance, the railroad company would have to pay whatever judgment the plaintiff might recover against the city, whereupon the defendant by its counsel interrupted plaintiff’s counsel in his argument, and addressing himself to the court objected to the counsel for plaintiff making such statement to the jury, and insisted that the same was improper; but the court said that the ordinance being in evidence, plaintiff’s counsel had the right to comment on it, and overruled the objection and allowed the counsel to continue his comment, to which ruling the defendant duly excepted.
    The jury found for the plaintiff $50,000. The city brings the case to this court for review, and assigns various errors.
    Mr. Francis Adams, for appellant;
    that the damages are the real, substantial and permanent decrease in value, if any, caused by the construction of the viaduct, cited C. & P. R. R. Co. v. Francis, 70 Ill. 238; Page v. C., M. & St. P. R. R. Co., 70 Ill. 328; City of Shawneetown v. Mason, 82 Ill. 342; City of Elgin v. Eaton, 83 Ill. 537; C. & W. Ind. R. R. Co. v. Berg, 10 Bradwell, 607.
    As to the rules of evidence applying where witnesses testify as to the value of real estate: 1 Greenleaf on Ev., 440, 576; Starkie on Ev., 10th ed., 172; Mills on Eminent Domain, 169; Whitman v. B. & Me. R. R. Co., 7 Allen, 316; Pinkham v. Chelmsford, 109 Mass. 225; Rochester, etc., R. R. Co. v. Budlong, 6 How. P. R. 467; Clark v. Baird, 5 Selden (9 N. Y.), 183; McCormick v. Penn. C. R. R. Co., 49 N. Y. 316; Jarvis v. Furman, 25 Hun, 391; Treespenning v. The Conn. Esc. Ins. Co., 43 N. Y. 279; Bedell v. Long I. R. R. Co., 44 N. Y. 367; White v. Hermann, 51 Ill. 243; Lycoming F. Ins. Co. v. Jackson, 83 Ill. 304; Ill. & Wis. R. R. Co. v. Van Horn, 18 Ill. 257; Chandler v. Jamaica Pond Aqueduct, 122 Mass. 305; C. & A. R. R. Co. v. S. & N. W. R. R. Co., 67 Ill. 142.
    It was error to permit appellee’s witnesses to be limited to giving their opinions as to the value of the premises as an oil mill; all or any of the uses to which land may be put are proper for consideration: Burt v. Wigglesworth, 117 Mass. 306; Harlan v. G. & S. W. R. R. Co., 64 Ill. 353; Miss. Riv. Bridge Co. v. Ring, 58 Mo. 491; Mills on Eminent Domain, § 173; Rickett v. Met. Ry. Co., 2 Eng. and Irish Appeals, 175; Cripps on Law of Corp., 165, 166; Edmunds v. Boston, 108 Mass. 535; Schuylkill N. Co. v. Freidley, 6 Wharton, 109; Salem, etc., R. R. Co. v. Camp, 45 Ga. 180.
    Where improper evidence is admitted, it is not cured by instructions not to regard it: Lycoming Fire Ins. Co. v. Rubin, 79 Ill. 402; Lafayette, B. & M. R. R. Co. v. Winslow, 66 Ill. 219.
    Messrs. John P. & T. R. Wilson, for appellee;
    that in determining the value of the property and the amount of compensation to be awarded, the particular use to which the property has been put, and for which it is valuable, may be taken into consideration, cited St. L., V. & T. H. R. R. Co. v. Haller, 82 Ill. 211; L. S. & M. S. Ry. Co. v. C. & W. I. R. R. Co., 100 Ill. 33; City of Shawneetown v. Mason, 82 Ill. 343; St. J. & S. R. R. Co. v. Kirby, 104 Ill. 345; Beckett v. Midland Ry. Co., L. R. 3 C. P. 82; South Park Comrs. v. Dunlevy, 91 Ill. 49.
    As to the competency of witnesses: Mills on Eminent Domain, § 169; Butler v. Mehrling, 15 Ill. 488; Ill. & Wis. Ry. Co. v. Van Horn, 18 Ill. 257; Keithsburg & E. R. R. Co. v. Henry, 79 Ill. 295; Ottawa, G., L. & C. Co. v. Graham, 35 Ill. 346; C. & St. L. R. R. Co. v. Woosby, 85 Ill. 373; Cooper v. Randall, 59 Ill. 317.
   Wilson, J.

Of the grounds relied upon for a reversal of the judgment below, we shall consider but one, namely, the ruling of the trial court in admitting in evidence the ordinance of the city, authorizing the Chicago; Burlington and Quincy Railroad Company to lay down its tracks in Beach street and permitting appellee’s counsel in his argument to the jury to call their attention to, and comment upon, that portion of the ordinance which requires the railroad company to indemnify the city against any damages it might incur by reason of the construction of the viaduct. The ordinance was in effect merely a license or permit from the city to the railroad company, (not a party to the suit) to construct its tracks in Beach street, upon certain specified conditions to be performed by the company. Appellee was neither party nor privy to it, and was not bound by any of its terms or conditions. It was claimed, however, by appellee upon the trial, that it was important to its rights to fix the time when certain of the railroad tracks crossing Polk street, immediately west of appellee’s property, had been laid prior to the construction of the viaduct, the argument being that the greater the number of tracks before the construction of the viaduct, the greater the damage occasioned thereby to appellee’s property, and consequently the smaller the damage resulting to appellee’s property from its construction; and that for the purpose of fixing the dates when the tracks were laid, and to show that a witness previously called by the city was mistaken as to the time stated by him, the ordinance became pertinent evidence. The court, against the objection and exception of the defendant, admitted the entire ordinance in evidence, and subsequently, against a like objection and exception, permitted appellee’s counsel to call the'attention of the jury to the fact that the city was indemnified by the ordinance, and that the railroad company would have to pay whatever damages the jury might find. In this, we think there was prejudicial error. Whether the city was indemnified or not was wholly immaterial, either to the plaintiff’s cause of action or to the amount of damages to which it was entitled. To argue to the jury that the city was indemnified by the railroad company, so that whatever damages they should award would not come out of the tax-payers, but would have to be paid by the railroad company, was to present to their minds an improper consideration. Its inevitable tendency was to make them (to say the least) less circumspect in estimating the actual loss occasioned by the injury complained of.

It is true the court, at the request of the defendant, instructed the jury that they should disregard the evidence as ' to the liability of the railroad company. This was perhaps a technical correction of the evil, but we can not say it was effectual to wholly cure it. An impression once created in the mind is not easily removed. We may close the door after looking out upon a beautiful landscape, but we do not thereby shut out the landscape. The vision still remains, photographed upon the tablet of the brain. The jury could not forget when considering of their verdict that it was the railroad company and not the city that was to pay the damages; and it is a reasonable inference that this consideration had its influence in their deliberations. For the purpose for which the ordinance was professedly offered, namely, to fix a date, it was not necessary that the entire ordinance should have been introduced. Section 4, which contained the indemnity clause, was separate and distinct from the other pro visions, and conceding that the ordinance furnished competent evidence as to the alleged date, it was only necessary and only admissible to introduce such parts of it as were sufficient to show the date. But even if the entire ordinance were admissible, it was wholly improper for the counsel to comment upon the indemnity clause. The court properly instructed the jury to disregard the evidence on that subject, and for the same reason should have interposed to prevent the evidence from being discussed. We can not say that justice has been done in this case, because we can not know to what extent the jury were influenced by the testimony improperly admitted and commented upon by counsel.

We are therefore of opinion that a new trial ought to be had, and accordingly reverse the judgment below and remand the case for further proceedings.

Reversed and remanded.


text:
    Chicago and Western Indiana Railroad Company v. Ferdinand Bingenheimer.
    Negligence — Instruction.—An instruction, that “ if the jury believe from the evidence that the servants of the defendant having charge of an engine attached to a car caused said car to he suddenly started, at the time and place stated in the declaration, and while the plaintiff, without any. fault on his part, was in the act of getting on hoard of said car, and that he was thereby injured and suffered the loss, etc., and that the plaintiff wa^' without fault, then the verdict must he for the plaintiff. ’ ’ Held, that as such instruction in effect declares that the mere fact of causing the car to be suddenly started in the switch yard, while the plaintiff, without any fault on his part, was in the act of getting on board such car, constituted negligence per se, it is erroneous.
    Appeal from the Circuit Court of Cook county; the Hon. John G-. Rogers, Judge, presiding.
    Opinion filed February 12, 1884.

      This was an action in the court below, by Bingenheimer against the Chicago and "Western Indiana Railroad Company, to recover damages for a personal injury alleged to have been occasioned by the negligence of the defendant’s servants in suddenly, and without any notice to plaintiff, starting a certain car backward, while plaintiff was in the act of going onto said car for the purpose of performing therein his duties as car cleaner, which he had been employed to do, whereby he was violently thrown and fell under the wheels of such car, which ran over one of his legs, cutting it off.
    On the trial under the general issue, it appeared that the plaintiff, July 15, 1882, was in the employment of the Louisville, Hew Albany and Chicago Railway Company as a car cleaner in a railroad yard near 14th street, Chicago, which yard and the track therein belonged to the defendant, but which was, by arrangement between the latter and the Louisville and Hew Albany Company, used by said last named company, the defendant’s engine and servants, during the switching onto what was known as the “ wash track,” where the cars of the Louisville and Hew Albany Company were cleaned by plaintiff and his assistants, and made up into trains by defendant’s engine and its servants; that while one of the cars of the Louisville and Hew Albany Company, called a Pullman car, was being taken to its proper place on said wash track, the plaintiff, in attempting to go upon such car for the purpose of cleaning it, fell upon the track and one of his legs was run over by the wheels and so crushed as to require amputation.
    The plaintiff testified that when he attempted to get on the car it was standing still, and had been for several minutes; that those in charge of defendant’s engine suddenly, and without any notice to him, started the car backward with such force as to throw him off; while the defendant’s witnesses gave testimony tending to show that the car was in motion when plaintiff attempted to get on, and that the bell on the engine was ringing and that plaintiff was told by one of the employes present not to get on then. Such being the state of the case, the court below gave, for the plaintiff, the following instruction to the jury:

      2. “If the jury believe from the evidence that the servants of the defendant, having charge of an engine attached to a car, caused said car to be suddenly started at the time and place stated in the declaration, and while the plaintiff’, without any fault on his part, was in the act of getting on board of said car, and that he was thereby injured, and suffered the loss of his foot and a portion of his leg, and that the plaintiff was without fault, then the verdict must be for the plaintiff.” To the giving which, exception was taken, and the jury returning a verdict for plaintiff assessing his damages at §5,000, the court overruled defendant’s motion for a new trial and gave judgment on the verdict, from which this appeal is presented by defendant.
    Mr. O. M. Osborne and Mr. S. Lynde, for appellant;
    as to negligence, cited I. C. R. R. Co. v. Hall, 83 Ill. 225; I. C. R. R. Co. v. Godfrey, 71 Ill. 507; C. & N. W. Ry. Co. v. Coss, 73 Ill. 395; C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 255; C. B. & Q. R. R. Co. v. Clark, 2 Bradwell, 596.
    Messrs. Rubens, McGaffey & Ames, for appellee.
   McAllister, P. J.

By the second instruction given on behalf of the plaintiff below, the jury were directed that if they found from the evidence that the servants of the defendant having charge of the engine attached to a car, caused said car to be suddenly started, at the time and place stated in the declaration, and while the plaintiff, without any fault on his part, was in the act of getting on board of said car, and that he was thereby injured, and suffered the loss of his foot and a portion of his leg, and that the plaintiff was without fault, then the verdict must be for the plaintiff.

The time, stated in the declaration as above referred to, was July 15, 1882. That could have no possible bearing upon the question of defendant’s negligence, and the reference to it was therefore immaterial, any farther than that it was before suit brought. The place was in the defendant’s switch yard, at 14th street, in Chicago. So that the instruction in effect declares that the mere fact of causing the car to be suddenly started in such switch yard, while the plaintiff, without any fault on his part, was in the act of getting on board of such car, constituted negligence fer se, or, in other words, negligence as matter of law irrespective of any other attending circumstances. That this was erroneous is too plain to justify either discussion or citation of authorities. ISTor can the error be disregarded because there was a conflict of testimony as to material facts, with an apparent preponderance in favor of the defendant in respect thereto, so that the instruction was presumably prejudicial to the defendant.

The judgment of the court below will, for the error pointed out, be reversed and the case remanded.

Judgment reversed.


text:
    City of Chicago v. Patrick Dignan.
    1. Pleading — Allegations and proofs. — If a pleader, though needlessly, describe the tort and the means by which it was effected with minuteness and particularity, and the proof substantially varies from such statement, the plaintiff must fail in his action. As the allegations in this case substantially vary from the proofs, the case must he reversed.
    2. Instructions — Notice.—Where the declaration averred that a city had notice of a defect in the highway but the instruction given failed to submit the question of notice to the jury. Held, that the instruction was improper, as notice was not only averred but was indispensable to liability on the part of the city, for the negligence or non-feasance charged.
    3. Municipal corpokation — Notice of defect in highway. — There is no rule of law prescribing for what length of time the continuance of a defect in a highway shall constitute notice to a municipal corporation of its existence. Whether notice could be inferred from the existence of the defect is to he determined by the jury.
    4. Preponderance of evidence, instruction upon. — The second instruction directing the jury how to determine the preponderance of evidence was erroneous in that it excluded from their consideration circumstances which were in evidence and undisputed, and which strongly tended to support defendant’s witnesses.

      Appeal from the Circuit Court of Cook county; the Hon. John Gf. Rogers, Judge, presiding.
    Opinion filed February 12, 1884.
    This action was brought by Dignan against the city of Chicago, to recover damages for a personal injury to him, occasioned by the negligence of the city in not keeping Monroe street in good repair. The declaration, containing but one count, sets out by way of inducement that said street was one of the public streets of said city, and that it was the duty of the latter to keep the same in a safe condition, etc., and then describes the tort complained of thus: “That said-street, at the point of place aforesaid above described, to wit, at the date aforesaid (June 20, 1880) above described, was and had been for a long time prior thereto, in a bad, unsafe and defective and dangerous condition; that the pavement and filling near, about and around a certain man-hole, located and constructed on said Monroe street, near the corner of Jefferson street and said Monroe street, was allowed and permitted to wear away near and about and around said man-hole, so as to expose said man-hole and cause it to protrude, stand elevated and raised above the level of said pavement and said street to the extent of from six to eight inches; that the same was knowingly, negligently and dangerously allowed and permitted by said defendant, to be and remain in an unsafe and dangerous condition, so that the public and individuals driving and riding in vehicles, wagons and carts, would by passing, traveling, riding upon, over and along said street, be in great danger of their lives and limbs, all of which the said defendant then and there, to wit, at the city of Chicago, had notice.” It is then averred that, “by means whereof and in consequence of said dangerous and msafe condition of said defeat as aforesaid afterward, to wit, on the 2Uth day of June, 1882, at the said Chicago, etc., the said plaintiff, while in the employmer<¡t of said defendant and riding upon a hose cart belonging to one of the fire companies of said defendant, to a fire, under the instructions and orders of said defendant, as was his duty to do, said hose cart while on its way to said fire, to •wit, at, etc., said Monroe street, near the corner of Jefferson street aforesaid, came in contact with, and one of its wheels ran against said man-hole, causing said hose cart to be thrown over and said plaintiff to be thrown upon the ground and street, and said hose cart to be thrown over and upon said plaintiff, thereby, at, etc., injuring the plaintiff.”
    On the trial under the general issue, it appeared in evidence that Jefferson is a north and south street, and Monroe an east and west street, crossing Jefferson; that there was a sewer running lengthwise and near the middle of each of said streets, crossing each other where the streets cross; that, where Monroe Street crosses Jefferson, at a point five or six feet west of the center of the latter, there was located what is called a manhole, and which is within a few feet of the north and west corners of Monroe and Jefferson; that west of said corners, and eighty feet from said last mentioned man-hole, there was, near the center of Monroe street, another man-hole to the sewer, this latter being more than double the distance from said corner than was the first mentioned man-hole. It appears in evidence that the engine house of the fire department of the city was located on the west side of Jefferson street, nearly three blocks south of the intersection of Monroe with Jefferson street; that just after 9 o’clock of the morning of June 20, 1880, in response to an alarm of fire, the hose cart in question came out of the said engine house, and the driver being absent, it was driven by the captain of the engine, Smith; that plaintiff sat on a seat behind him; that there were also two other men on, but standing up; that the cart took a course north on Jefferson street, a little east of the center of the street; that a truck of the hook and ladder company also came out, taking its course also north on Jefferson, on the space west of that taken by the hose cart, and kept close up with the cart, and apparently striving to get ahead of it; that arriving at Monroe street, the hose cart was suddenly turned from Jefferson street, westward on Monroe; that it had hardly completed the turn, when it was capsized. Oapt. Smith went under it and was killed; the plaintiff also went under, and claims that he was injured. The plaintiff testifies that the south or nigh wheel of the cart struck the sewer cap, at the man-hole west of the corner on Monroe, and was thereby upset. In that statement he was corroborated by a saloon keeper of the name of Ginsburg, and in some degree, by a witness of the name of Fyan. The defendant introduced twelve witnesses who saw the accident, most of whom were entirely disinterested, whose testimony showed that the cart was upset by reason of the suddenness of the turn on Monroe, and by the end of the pole of the truck striking the poles of the nigh wheel; that it was turned over several feet east of, and before it reached said man-hole. It appeared by the uncontradicted testimony of a disinterested observer, who examined at the time the marks on the ground, that the cart ran several feet on one wheel, on the occasion of its being turned over.
    It appeared by uncontradicted evidence that trimmings on the end of the pole of the truck presented the bruises and marks which would naturally be made by such collision with the wheel of the cart, and that several of the spokes of the nigh wheel of the cart had the appearance of abrasion and being shivered, so much so that new spokes were required to be put in to repair it. There was no evidence tending to show that the man-hole, or sewer cap, nearest to the corner of lefferson and Monroe had any connection with the cause of the accident. Nor was there any evidence of the wearing atoay of the pavement cmd filling near cmd about and around the man-hole on Monroe,' eighty feet west of the former, so as to expose said man-hole and cause it to protrude, stand elevated and raised above the level of the said pavement and the said street, to the extent of from six to eight inches. Instead of there being any evidence tending to show that defendant had permitted such wearing awct/y of the pavement and filling near, around and about such man-hole, the plaintiff himself testified that the cause of the bad condition there, was that parties had taken out the blocks of the pavement in spots around in that portion of the street to use for fire-wood. bTo witness testified that the man-hole stood exposed to any such extent as from six to eight inches above the level of the pavement, nor did the evidence tend to prove that it was raised any distance above the level of the pavement. There was no evidence tending to show that the city had any actual notice of such condition of the street, or that it was in a bad condition.
    The court, on behalf of the plaintiff, gave to the jury the following instructions:
    1st. The court instructs the jury that it is the duty of the city to keep its streets in good repair and free from obstructions, so as to be reasonably safe for the ordinary purposes for which they are used; and if you believe from the evidence that on the 20th of June, 1880, the plaintiff was a member of the fire department of the said city, and, as such, was on that day going to assist in the extinguishment of a fire in said city, and was riding upon a hose cart in the discharge of his duty as such fireman, and in company with, and obeying the orders of his superior officer in said fire department, Captain Smith, and that in going to said fire, said hose cart was being driven along and upon one of the public streets of said city, and came in contact with a sewer cap in or about the middle of said street, and that said sewer cap protruded six or eight inches above the level of the street, and that by reason thereof said hose cart was capsized and the plaintiff thereby injured, and if you further believe from the evidence that said street and sewer cap made it unsafe to.travel over and along said street, and had been in that condition for several weeks or months next prior to said day, and if you further believe from the evidence that the plaintiff was, and that Captain] Smith, the driver of the cart, was, at the time of the accident, exercising reasonable and ordinary care, then the city is liable^ in this case, and your verdict should be for the plaintiff. Given.
    2d. The court instructs the jury that the preponderance of the evidence is not alone determined by the number of witnesses testifying to any fact or facts, but in determining the preponderance of the evidence you should take into consideration the opportunities of the witnesses for seeing, knowing or remembering what they testify to, the probability or improbability of its truth, the relation or connection, if any, between the witnesses and the parties, their interest or lack of interest in the result of the case, and their conduct and demeanor while testifying. Given.

    The jury found the defendant guilty, and assessed the plaintiff’s damages at $500, and the court, overruling the defendant’s motion for a new trial, gave judgment on the verdict, from which this appeal is prosecuted.
    Mr. Julius S. Gkinnell, for appellant;
    that the principal is not liable to one servant for the carelessness of another servant, where both are engaged in his business, cited Honner v. I. C. R. R. Co., 15 Ill. 550; Joliet v. Seward, 86 Ill. 406; C. & N. W. Ry. Co. v. Scheuring, 4 Bradwell, 533.
    The members of the fire department are not the servants of the city, for whose conduct it is liable: Dillon on Municipal Corporations, 3d ed. § 964; Wilcox v. City, 107 Ill. 334.
    The proof is not sufficient to cover the allegations of the declaration; Chitty on Pl., 407, 14th Am. ed.; City of Bloomington v. Goodrich, 88 Ill. 558; Gavin v. City of Chicago, 97 Ill. 66; C. & N. W. Ry. Co. v. Scheuring, 4 Bradwell, 541; W., St. L. & P. Ry. Co. v. Fenton, 12 Bradwell, 419.
    As to instructions: Harris v. Hale, 71 Ill. 554; Logg v. The People, 92 Ill. 602; Evans v. George, 80 Ill. 52; C., B. & Q. R. R. Co. v. Griffin, 68 Ill. 499; Martin v. Johnson, 89 Ill. 538; Thorp v. Goewey, 85 Ill. 614; Penn. Co. v. Stoelke, 104 Ill. 201; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; Ill. Linen Co. v. Hough, 91 Ill. 64; Fairbnry v. Rogers, 98 Ill. 557.
    Mr. EdwinS. Metoale, for appellee;
    that it is not competent for an appellate court, sitting for the correction of errors, to disturb the verdict of a jury upon a trial of a case at law, upon the weight of the evidence, cited Lewis v. Lewis, 92 Ill. 237; Bishop v. Busse, 69 Ill. 403; Coke’s Littleton, 155; Foster on Crim. Law. 255; Greenleaf on Ev., § 49; Chandler v. Von Roedel, 24 How. (U. S.) 227; Witkowsky v. Wasson, 71 N. C. 451; Lombard v. Oliver, 5 Allen, 1; King v. Moore, 42 Mo. 551; Lewis v. Pratt, 48 Vt. 358; Stickle v. Otto, 86 Ill. 161; Connelly v. The People, 81 Ill. 379; Simons v. Waldron, 70 Ill. 281.
    A master can not escape responsibility for an injury to his servant caused by the master’s negligence: Fairbank v. Haentzsche, 73 Ill. 236; Snow v. H. R. R. Co., 8 Allen, 441; Buzzell v. Laconia Mfg. Co., 48 Me. 113; Chamberlain v. M. & M. R. R. Co., 11 Wis. 238; R. R. Co. v. Stevens, 20 Ohio, 415; R. R. Co. v. McElwee, 67 Penn. 311.
    If any particular theory or phase of instructions are desired, they should be asked for: Rozer v. Burns, 13 Geo. 34; Hatch v. Spearin, 11 Me. 354; Hall v. Weir, 1 Allen, 261; Burns v. Sutherland, 7 Penn. 103; Taft v. Wildman, 15 Ohio, 123; Farquhar v. Dallis, 20 Texas, 200; Chamberlain v. Porter, 9 Minn. 960; Zabrisky v. Smith, 13 N. Y. 322; Cato v. State, 9 Fla. 163; Moore v. Poss, 11 N. H. 547; Castle v. Bullard, 23 How. (U. S.) 172; Tomlinson v. Wallace, 16 Wis. 224; Express Co. v. Kountze, 8 Wall. 342.
    And, if not requested, it will not be ground of error that the instructions are too general or ambiguous: Bast v. Alford, 20 Texas, 226; State v. Phinney, 42 Me. 384; Heirs, etc., v. Young, 12 Penn. 15; Street v. Lynch, 38 Geo. 631; Pennock v. Dialogue, 2 Peters, 1; Koehler v. Wilson, 40 Iowa, 183; Goodrich v. Eastern R. R. Co., 38 N. H. 390.
    Misdirection itself is no ground for a new trial unless the jury were misled: City v. Hesing, 83 Ill. 204; Smith v. Carr, 16 Conn. 450; Hoitt v. Halcomb, 32 N. H. 186; Ochiltree v. Carl, 23 Iowa, 394; Cummings v. Chandler, 26 Me. 453; Mercer Academy v. Puck, 8 W. Va. 373; Philadelphia, etc., R. R. Co. v. Larkin, 47 Md. 156; Burton v. Merrick, 21 Ark. 357; Adams v. Inhabitants, etc., 11 Allen, 203; Maynell v. Inhabitants, etc., 67 Me. 313.
   McAllister, P. J.

We have examined the unnecessarily voluminous record in this ease with patience, care and very great labor, for such a case, and are fully convinced that the judgment below ought to be reversed for reasons which we will endeavor to state with statutory brevity: First. It is a rule universally applicable in this class of cases, as well as others, that the allégations of the declaration and the proofs must correspond. T., W. & W. R. R. Co. v. Foss, 88 Ill. 551; Gavin v. The City of Chicago, 97 Ill. 66; and in harmony with the above is a further rule, that if the pleader, though needlessly, describe the tort and the means by which it was effected, with minuteness and particularity, and the proof substantially vary from such statement, the plaintiff must fail in his action. City of Bloomington v. Goodrich, 88 Ill. 558; Fitzsimmons v. Inglis, 5 Taunt. 531.

Now, independently of the question of fact disputed on the trial, whether the plaintiff was thrown from the hose cart by reason of one of its wheels striking the man-hole shown to have been situated on Monroe street, a very considerable distance west of the corner of that street and Jefferson, the proof substantially varied from the description of the tort given in the plaintiff’s declaration. That located the man-hole which caused the injury on Monroe street, near the corner of Jefferson street. There was in fact one located on Monroe street near the corner of Jefferson, while the plaintiff sought wholly to apply his proofs to one eighty feet west of it. But what is still worse, the proofs substantially varied from the description of the tort in respect to that man-hole. The allegation was that the city permitted the pavement and filling to wear away, near, about and around it. The proof was that blocks had been taken out by trespassers, to be used as fire-wood, in spots about that locality. The allegation was that the manhole, by reason of such wearing away, protruded and stood tip from six to eight inches above the level of the pavement. That the proof entirely failed to show. Then, aside from such failure of proof, we are of opinion that the evidence was overwhelmingly against the theory that the plaintiff was thrown from the hose cart by reason of one of its wheels striking that or any other sewer cap.

Secondly. We are of opinion that both the first and second instructions given on behalf of the plaintiff were erroneous. By the first, the jury were directed that if said hose cart was being driven along and upon one of the public streets of said city, and came in contact with a sewer cap in or about the middle of said street, and that said sewer cap protruded six or eight inches above the level of the street, and that by reason thereof said hose cart was capsized and the plaintiff thereby injured, and if the jury further believe from the evidence that said sewer cap made it unsafe to travel over and along said street, and had been in that condition for several weeks or months prior to said day, and that the plaintiff and Captain Smith, the driver of the cart, were, at the time, exercising ordinary care, then the city was liable. The allegation of the declaration was that the man-hole protruded from six to eight inches above the level of the pavement and street. There was no proof that it protruded at all above the level of the pavement. The defect shown was merely that some of the blocks of the pavement had been taken out by trespassers. Such taking of a few blocks out of the pavement could not cause the man-hole or sewer cap to protrude or be raised up from six to eight inches above the level of the pavement. So that proposition was improperly submitted to the jury. The declaration avers that the city had notice of the situation of this man-hole as described; but the instruction not only fails to submit the question of notice to the jury, but assumes to declare as matter of law, that if the sewer cap had so protruded, and thereby made the street unsafe for a period of several weeks previously, the city would be liable.

Notice was not only averred but it was indispensable to liability on the part of the city, for the negligence or non-feasance charged. Mayor v. Sheffield, 4 Wallace, 169; City of Chicago v. Major, 18 Ill. 360.

“ There is no rule of law prescribing for what length of time the continuance of a defect in a highway shall constitute notice of its existence. Whether notice could be infei’red from the existence of the defect is to be determined by the jury. 2 Thompson on Neg., p. 1238, and cases in note 13.

The second instruction was erroneous, because in directing the jury how to determine the preponderance of evidence, it excluded from their consideration circumstances which were in evidence and undisputed, such as the marks and injury to the spokes of the nigh wheel of the cart, and upon the end of the pole of the truck, which was close upon the lióse cart when it suddenly turned from Jefferson on Monroe street. Those mai’ks strongly tended to support the witnesses for the defendant, who testified that it was the collision of the pole of the hook and ladder truck with the wheel of the cart which caused the latter to upset, and not the manhole.

The judgment of the court below will be reversed and the cause remanded.

Judgment reversed.


author: McAllister, P. J".

text:
    David Dows et al. v. Byron J. McCleary et al.
    1. Goods dept by owner without limitation with custodian WHOSE COMMON BUSINESS IS TO SELL SUCH KIND OP HOODS. — If an Owner of goods puts them into the custody of another, whose common business it is to sell that kind, or that and other kinds of goods, and such owner places no limitation upon the authority of such custodian, he thereby confers upon such Custodian an implied authority to sell them.
    2. Liability op third parties por goods sold by custodian.— Where the character of the business of the custodians of certain com of plaintiffs, and the circumstances in evidence (aside from a supposed contract, which was void for want of mutuality) tended to show that the custodians were authorized, so far as defendants were concerned, in shipping to the latter said com, which defendants received from the custodians in the usual course of business, sold and returned to them the proceeds in good faith and without notice of any interest of the plaintiffs therein, defendants were not liable to plaintiffs for such corn.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Opinion filed February 12, 1884.
    This action was trover, by David Dows & Co. against Mc-Cleary, Smith & Co., to recover the value of eight car loads of corn. On the trial before the court, without jury, the plaintiffs proved the signature of Morse & Lilley, and the court permitted them to give in evidence, against the defendants’ objections, the following instrument:

      “Memorandum of agreement made December 17, 1879, between David Dows & Co. and Morse & Lilley, of Corning, in the State of Iowa.
    “ David Dows & Co. are to provide Morse & Lilley the money necessary, from time to time, to purchase such quantity of sound ear corn at Corning, in the State of Iowa, as David Dows & Co. deem advisable.
    “ Morse & Lilley agree to make such purchases for David Dows & Co., and to use the money so provided for no other purpose than the purchase of sound ear corn as above stated, and the expenses necessarily connected therewith, and the corn so purchased shall be the property of David Dows & Co., and the cribs containing same shall be marked with the name of David Dows & Co.
    “ It is further agreed between the above mentioned parties, that Morse & Lilley, as compensation for their services in purchasing, handling, cribbing, shelling and shipping the above corn, shall receive whatever sum may remain when the corn is sold by David Dows & Co., after David Dows & Co. shall have received the money so invested, and interest thereon at the rate of eight per cent, per annum, also one cent per bushel, and all freight and other charges and expenses incurred by them.
    “ And Morse & Lilley further agree, in consideration of the premises, to guarantee David Dows & Co. against all loss on account of the purchase of the above mentioned corn, and to make good to them their investments with interest; also one cent per bushel, and such charges and expenses tas may have been incurred by them.
    (Signed) “ Mouse & Lilley.”
    Plaintiffs introduced no evidence tending to show the execution of the supposed agreement on their part, but proved by Morse, of the firm of Morse & Lilley, that a Mr. Cheney, whom Morse called the agent of David Dows & Co., called on them and that he orally agreed that his principals should furnish money for his firm to buy com with. He does not testify to the delivery of the supposed contract, or that they received any duplicate from Dows & Co. Evidence was given that Morse & Lilley went on buying corn, on a large scale, at Corning, where they were carrying on the business of buying and selling corn. They had cribs at their town, and when one was filled they would issue a document to Dows & Co., in the following form, varying only as to quantity of corn and description of crib:
    “Ho. 9. Corning, Ia. Jany. 24, 1880.
    We have bought for David Dows & Co., fifty-four hundred bushels of sound ear corn, and have stored same in good covered cribs, numbered six (6), located on lots owned by C. U. Frank, situated in the town of Corning, county of Adams, State of Iowa, and each of said cribs is marked with the name of David Dows & Co.
    5,400 bushels. (Signed) Morse & Lilley.”
    It appeared that the cribs were so marked, and that Dows & Co. advanced all the means to pay for the corn, by accepting drafts drawn by Morse & Lilley, or either of them, at Chicago, where they did business. The evidence shows that, between the 3d and 13th of September, 1880, the firm of Morse & Lilley shipped from one of the cribs, at Corning, so marked, and for the contents of which they had given their receipt to Dows & Co., five car loads of corn to McGleary, Smith & Co., of Chicago, the defendants, to be sold by them on commission; that they did sell the same, in the usual course of business, without any notice of plaintiffs’ interest therein, and remitted the proceeds to Morse & Lilley; after demand made by plaintiffs, this suit was brought to recover for said corn and other car loads. The court found for the defendants, and plaintiffs bring the record here to be reviewed upon the general facts, without any specific ruling below.
    Messrs. Monroe & Tewkesbury, for appellants;
    that the corn in controversy belonged to appellants, was in their possession and stored in cribs marked with their firm name, and appellees having converted the same are liable therefor, cited Fawcett v. Osborn, 32 Ill. 411; Turley v. Bates, 2 H. & C. 200; Martineau v. Hitching, L. R., 7 Q. B. 449, 450-454; Fitch v. Burk, 38 Vt. 689; Young v. Matthews, L. R., 2 C. B. 127; Riddle v. Varnum, 20 Pick. 283; Fuller v. Bean, 34 N. H. 300-304; Stone v. Peacock, 35 Maine, 388; Blackburn on Sales, 150, 151; Bellows v. Wells, 35 Vt. 599; Summer v. Hamlet, 12 Pick. 76-82; Morse v. Sherman, 106 Mass. 433; Kimberly v. Patchen, 19 N. Y. Ct. Ap. 330; Merchants NatBk. v. Bangs, 102 Mass. 295; Bassett v. Armstrong, 6 Mich. 397.
   McAllister, P. J".

We are unable to perceive, from an examination of the record in this case, how the case imposes upon us the duty or necessity of giving a construction of the supposed contract purporting to be between Dows & Co. and Morse & Lilley, of date Dec. 17,1879, with a view of determining its effect as respects the question, in whom ivas the property in the corn alleged to have been converted by the defendants? There is no evidence in the record that Dows & Oo. ever executed that contract, in duplicate or other- . wise. From what the record fails to show, and what it does show, the court below would have been justified in finding the supposed contract void for want of mutuality; and we are to presume that the court did so find. That being so, there was no evidence to show any or what limitations were placed by Dows & Co. upon Morse & Lilley, in whose custody they left the corn, or the extent of their authority in respect thereto. They, it seems, were, and for a long time previously had been, engaged in the place where the corn was stored, iii the business of buying, shipping and selling corn. It seems to be a recognized rule of law that if the owner of goods puts them into the custody of another, whose common business it is to sell that kind, or that and other kinds of goods, and such owner places no limitation upon the authority of such custodian, he thereby confers upon such custodian an implied authority to sell them. Pickering v. Bust, 15 East, 38; approved in Saltus v. Everett, 20 Wend. 280.

The character of the business of Morse & Lilley, and the •circumstances in evidence (aside from such supposed contract, w’hich the court below was justified in holding void for want of mutuality) tended to support the finding below that Morse & Lilley were authorized, so far as the defendants were concerned, in shipping to the latter the corn in question, which they received from Morse & Lilley in the usual course of business, sold and returned to them the proceeds, in good faith, and without notice of any interest of the plaintiffs therein. The case is entirely distinguishable from Fawcett, Isham & Co. v. Osborn, Adams & Co., 32 Ill. 411. And we think the judgment below should be affirmed.

Affirmed.